<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 1996.
SUBJECT TO AMENDMENT.
REGISTRATION NOS. 333-
333- -01
333- -02
333- -03
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
<TABLE>
<S> <C> <C>
GEORGIA POWER COMPANY GEORGIA 58-0257110
GEORGIA POWER CAPITAL TRUST I DELAWARE APPLIED FOR
GEORGIA POWER CAPITAL TRUST II DELAWARE APPLIED FOR
GEORGIA POWER CAPITAL TRUST III DELAWARE APPLIED FOR
(Exact name of registrant as specified in (State or other jurisdiction of (I.R.S. Employer Identification
its charter) incorporation or organization) No.)
</TABLE>
333 PIEDMONT AVENUE, N.E.
ATLANTA, GEORGIA 30308
(404) 526-6526
(Address, including zip code, and telephone number, including area code, of each
registrant's principal executive offices)
---------------------
JUDY M. ANDERSON
VICE PRESIDENT AND CORPORATE SECRETARY
GEORGIA POWER COMPANY
333 PIEDMONT AVENUE, N.E.
ATLANTA, GEORGIA 30308
(404) 526-6526
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
---------------------
THE COMMISSION IS REQUESTED TO MAIL SIGNED COPIES OF ALL ORDERS, NOTICES AND
COMMUNICATIONS TO:
<TABLE>
<S> <C>
W . L . WESTBROOK JOHN D. MCLANAHAN, ESQ.
FINANCIAL VICE PRESIDENT TROUTMAN SANDERS LLP
THE SOUTHERN COMPANY 600 PEACHTREE STREET, N.E.
270 PEACHTREE STREET, N.W. SUITE 5200
ATLANTA, GEORGIA 30303 ATLANTA, GEORGIA 30308-2216
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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- --------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
EACH CLASS OF SECURITIES TO BE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) UNIT(1)(2)(3) PRICE(1)(2)(3) FEE(1)
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Georgia Power Capital Trust I Preferred Securities.......
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Georgia Power Capital Trust II Preferred Securities......
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Georgia Power Capital Trust III Preferred Securities.....
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Georgia Power Company Junior Subordinated Notes(4).......
- --------------------------------------------------------------------------------------------------------------------------------
Georgia Power Company Guarantees with respect to
Preferred Securities of Georgia Power Capital Trust I,
Georgia Power Capital Trust II and Georgia Power Capital
Trust III(4)(5)..........................................
- --------------------------------------------------------------------------------------------------------------------------------
Total.................................................... $400,000,000 100% $400,000,000 $137,932
- --------------------------------------------------------------------------------------------------------------------------------
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</TABLE>
(1) There are being registered hereunder such presently indeterminate number of
Preferred Securities of Georgia Power Capital Trust I, Georgia Power Capital
Trust II and Georgia Power Capital Trust III with an aggregate initial
offering price not to exceed $400,000,000, plus an indeterminate principal
amount of Junior Subordinated Notes of Georgia Power Company with an
aggregate principal amount not to exceed $400,000,000 as may be distributed
upon a dissolution of Georgia Power Capital Trust I, Georgia Power Capital
Trust II or Georgia Power Capital Trust III and the distribution of the
assets thereof, which would include such Junior Subordinated Notes for which
no separate consideration will be received. Pursuant to Rule 457(o) under
the Securities Act of 1933, which permits the registration fee to be
calculated on the basis of the maximum offering price of all the securities
listed, the table does not specify by each class information as to the
amount to be registered, proposed maximum offering price per unit or
proposed maximum aggregate offering price.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Exclusive of accrued interest and distributions, if any.
(4) No separate consideration will be received for the Georgia Power Company
Junior Subordinates Notes or Guarantees. Pursuant to Rule 457(n) no separate
fee is payable in respect of the Georgia Power Company Junior Subordinated
Notes or Guarantees.
(5) Includes the rights of the holders of the Preferred Securities under the
respective Guarantees and certain back-up undertakings of the Company,
including its covenant to pay any indebtedness, expenses or liabilities of
the Trusts (other than obligations pursuant to the terms of the Preferred
Securities or other similar interests), all as described in this
registration statement.
---------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL NOT CONSTITUTE AN OFFER
TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE
OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 14, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1996
[ ] PREFERRED SECURITIES
GEORGIA POWER CAPITAL TRUST [ ]
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
GEORGIA POWER COMPANY
A SUBSIDIARY OF THE SOUTHERN COMPANY
---------------------------
The % Trust Preferred Securities (the "Preferred Securities") offered
hereby evidence preferred undivided beneficial interests, representing 97%
undivided beneficial ownership of the assets of Georgia Power Capital Trust
[ ], a statutory business trust formed under the laws of the State of Delaware
(the "Trust"). Georgia Power Company, a Georgia corporation (the "Company"),
will own all the common securities (the "Common Securities" and, together with
the Preferred Securities, the "Trust Securities") representing the remaining 3%
undivided beneficial ownership of the assets of the Trust. The Trust exists for
the sole purpose of issuing the Preferred Securities and Common Securities and
investing the proceeds thereof in an equivalent amount of the Company's Series
% junior subordinated deferrable interest notes due ,
(the "Series Junior Subordinated Notes").
The Series Junior Subordinated Notes will be unsecured obligations of
the Company and will be subordinate and junior in right of payment to Senior
Indebtedness of the Company, as described herein. See "Description of the Junior
Subordinated Notes -- Subordination" in the accompanying Prospectus. Holders of
the Preferred Securities are entitled to receive cumulative cash distributions
at the rate of % per annum (the "Securities Rate"), accruing from the date
of original issuance and payable, unless deferred, in arrears on
of each year (each, a "Distribution Date").
(continued on page S-2)
---------------------------
See "Risk Factors" beginning on page S-6 for certain information relevant
to an investment in the Preferred Securities, including the period and
circumstances during and under which payments of distributions on the Preferred
Securities may be deferred and the related United States federal income tax
consequences of such deferral.
---------------------------
Application has been made to list the Preferred Securities on the New York
Stock Exchange, Inc. (the "NYSE"). If approved, trading of the Preferred
Securities on the NYSE is expected to commence within a 30-day period after the
initial delivery of the Preferred Securities. See "Underwriting."
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
<TABLE>
<CAPTION>
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ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT(2)(3) TRUST(2)(3)(4)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security................. $ $ $
- ------------------------------------------------------------------------------------------------------
Total.................................. $ $ $
- ------------------------------------------------------------------------------------------------------
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</TABLE>
(1) Plus accrued distributions, if any, from the Issue Date.
(2) The Company and the Trust have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of
1933, as amended. See "Underwriting."
(3) Because the proceeds of the sale of the Preferred Securities will be
invested in Series Junior Subordinated Notes, the Company has agreed
to pay to the Underwriters, as compensation (the "Underwriters'
Compensation") for arranging the investment therein of such proceeds,
$ per Preferred Security, except for Preferred Securities sold to
certain institutions, for which the Underwriters' Compensation will be $
per Preferred Security. Therefore, to the extent that Preferred Securities
are sold to such institutions, the actual amount of Underwriters'
Compensation will be less than and the Proceeds to Trust will be greater
than the aggregate amounts specified above. See "Underwriting."
(4) Expenses of the offering to be paid by the Company are estimated to be
approximately $ .
---------------------------
The Preferred Securities are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that delivery of
the Preferred Securities will be made in book-entry only form through the
facilities of The Depository Trust Company on or about , 1996 (the
"Issue Date").
---------------------------
, 1996
<PAGE>
(CONTINUED FROM PAGE 1)
The Securities Rate and the Distribution Dates for the Preferred Securities
will correspond to the interest rate and interest and other payment dates on the
Series Junior Subordinated Notes, which will constitute substantially all
the assets of the Trust. As a result, if principal or interest is not paid on
the Series Junior Subordinated Notes, no amounts will be paid on the
Preferred Securities. THE COMPANY HAS THE RIGHT TO DEFER PAYMENTS OF INTEREST ON
THE SERIES JUNIOR SUBORDINATED NOTES BY EXTENDING THE INTEREST PAYMENT
PERIOD ON THE SERIES JUNIOR SUBORDINATED NOTES, AT ANY TIME AND FROM TIME
TO TIME, FOR UP TO CONSECUTIVE QUARTERS (EACH, AN "EXTENSION PERIOD"). If
interest payments are so deferred, distributions on the Preferred Securities
also will be deferred. During any Extension Period, holders of Preferred
Securities will continue to accrue income for United States federal income tax
purposes in advance of the receipt of the cash payments attributable to such
deferred interest. See "Description of the Series Junior Subordinated
Notes -- Option to Extend Interest Payment Period," "Risk Factors -- Option to
Extend Interest Payment Period" and "Certain Federal Income Tax
Considerations -- Original Issue Discount" and "-- Market Discount." Deferred
installments of interest on the Series Junior Subordinated Notes will bear
interest, compounded , at a rate per annum equal to the Securities
Rate. The payment of such deferred interest, together with interest thereon,
will be distributed to the holders of the Preferred Securities as received at
the end of any Extension Period.
The Trust Securities are subject to mandatory redemption upon repayment of
the Series Junior Subordinated Notes at maturity or their earlier
redemption. The Series Junior Subordinated Notes are redeemable at the
option of the Company (in whole or in part), from time to time, on or after
, or at any time in whole upon the occurrence of a Tax Event
or Investment Company Act Event (either, a "Special Event"). The Company will
have the right at any time to terminate the Trust and cause the Series Junior
Subordinated Notes to be distributed to the holders of the Preferred Securities
in liquidation of the Trust. The Series Junior Subordinated Notes are
subordinated and junior in right of payment to all Senior Indebtedness (as
defined herein) of the Company. See "Description of the Junior Subordinated
Notes -- Subordination" in the accompanying Prospectus. As of
, Senior Indebtedness of the Company aggregated
approximately $ . If the Series Junior Subordinated Notes
are distributed to the holders of the Preferred Securities, the Company will use
its best efforts to have the Series Junior Subordinated Notes listed on the
NYSE or on such other exchange as the Preferred Securities are then listed. See
"Description of the Preferred Securities -- Special Event Redemption or
Distribution" and "Description of the Series Junior Subordinated Notes."
The payment of distributions on the Preferred Securities is guaranteed by
the Company under the Guarantee Agreement, but only to the extent that the Trust
has funds legally and immediately available therefor (the "Guarantee"). If the
Company fails to make required payments on the Series Junior Subordinated
Notes, the Trust will not have sufficient funds to pay such distributions, and
the Guarantee does not cover the payment of distributions when the Trust does
not have sufficient funds legally available therefor. In such event, the remedy
of a holder of Preferred Securities is to enforce the rights of the Trust as
holder of the Series Junior Subordinated Notes. See "Description of the
Series Junior Subordinated Notes" herein and "Description of the Junior
Subordinated Notes" in the accompanying Prospectus. The Company's obligations
under the Guarantee are subordinate and junior in right of payment to all of its
other liabilities and will rank pari passu (equal in priority) with the most
senior preferred stock of the Company. See "Description of the Guarantees" in
the accompanying Prospectus. The Company has, through the Guarantee, the
Subordinated Note Indenture, the Series Junior Subordinated Notes, the
Trust Agreement and the Agreement as to Expenses and Liabilities, fully and
unconditionally guaranteed, subject to certain subordination provisions, all the
Trust's obligations with respect to the Preferred Securities.
In the event of the redemption of the Series Junior Subordinated Notes
or the voluntary or involuntary dissolution, winding-up or termination of the
Trust, the holders of the Preferred Securities will be entitled to receive, for
each Preferred Security, a liquidation amount of $25 plus accrued and unpaid
distributions thereon (including interest thereon) to the date of payment (the
"Redemption Price"), unless in connection with such dissolution, winding-up or
termination, the Series Junior Subordinated Notes are distributed to the
holders of the Preferred Securities. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution."
The Preferred Securities initially will be represented by a global
certificate or certificates registered in the name of The Depository Trust
Company ("DTC") or its nominee. Beneficial interests in the Preferred Securities
will be shown on, and transfers thereof will be effected only through, records
maintained by Participants (as defined herein) in DTC. Except as described
herein, Preferred Securities in certificated form will not be issued in exchange
for the global certificates. See "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company."
---------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NYSE, IN THE OVER THE COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
S-2
<PAGE>
SUMMARY OF OFFERING
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus Supplement and in
the accompanying Prospectus. Capitalized terms not otherwise defined shall have
the meanings assigned in the Glossary.
The Company................ The Company is a corporation organized under the
laws of the State of Georgia on June 26, 1930.
The Company has its principal office at 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308,
telephone (404) 526-6526. The Company is a wholly
owned subsidiary of The Southern Company
("Southern Company").
The Company is a regulated public utility engaged
in the generation, transmission, distribution and
sale of electric energy within an approximately
57,200 square mile service area comprising most
of the State of Georgia.
The Trust.................. Georgia Power Capital Trust [ ] is a statutory
business trust organized under Delaware law
solely for the purpose of holding the Company's
Series Junior Subordinated Notes and issuing
Preferred Securities and Common Securities
evidencing the entire beneficial interest therein
(and engaging in activities necessary,
appropriate, convenient or incidental thereto).
The Trustees............... Chemical Bank will act as property trustee (the
"Property Trustee") of the Trust. Two officers of
the Company also will act as trustees (the
"Administrative Trustees") of the Trust. Chemical
Bank Delaware will be an additional trustee (the
"Delaware Trustee") of the Trust. Chemical Bank
also will act as trustee (the "Indenture
Trustee") under the Subordinated Note Indenture
pursuant to which the Series Junior
Subordinated Notes will be issued and will act as
trustee under the Guarantee (the "Guarantee
Trustee").
The Property Trustee, Delaware Trustee and
Administrative Trustees are sometimes referred to
as the "Securities Trustees."
Preferred Securities
Offered.................... The Trust will offer Preferred Securities
evidencing preferred undivided beneficial
interests in the assets of the Trust. Holders of
the Preferred Securities are entitled to receive
cumulative cash distributions at the Securities
Rate, accruing from the date of original issuance
and payable in arrears on
of each year, commencing on
(each, a "Distribution Date"). The
Securities Rate and the Distribution Dates for
the Preferred Securities will correspond to the
interest rate and payment dates on the Series
Junior Subordinated Notes, which will constitute
substantially all the assets of the Trust. As a
result, if principal or interest is not paid on
the Series Junior Subordinated Notes, no
amounts will be paid on the Preferred Securities.
See "Description of the Preferred Securities"
herein.
Record Date................ The record date for each Distribution Date will be
the close of business on the 15th calendar day
prior to such Distribution Date.
Series Junior
Subordinated Notes......... The Trust will invest the proceeds from the
issuance of the Preferred Securities and Common
Securities in an equivalent amount of Series
% junior subordinated deferrable interest
notes due
S-3
<PAGE>
. The Series Junior Subordinated
Notes will be subordinate and junior in right of
payment to all current indebtedness for borrowed
money and other obligations of the Company
included in the definition of Senior
Indebtedness. See "Description of the Junior
Subordinated Notes -- Subordination" in the
accompanying Prospectus.
Guarantee.................. The payment of distributions on the Preferred
Securities is guaranteed by the Company under the
Guarantee, but only to the extent the Trust has
funds legally and immediately available to make
such distributions. If the Company does not make
principal or interest payments on the Series
Junior Subordinated Notes, the Trust will not
have sufficient funds to make distributions on
the Preferred Securities, in which event the
Guarantee will not apply to such distributions
until the Trust has sufficient funds legally
available therefor. The obligations of the
Company under the Guarantee will be subordinate
and junior in right of payment to all other
liabilities of the Company and will rank pari
passu with the most senior preferred stock issued
by the Company. See "Risk Factors -- Ranking of
and Rights Under the Guarantee" herein and
"Description of the Guarantees" in the
accompanying Prospectus. The Company has, through
the Guarantee, the Subordinated Note Indenture,
the Series Junior Subordinated Notes, the Trust
Agreement and the Agreement as to Expenses and
Liabilities, fully and unconditionally
guaranteed, subject to certain subordination
provisions, all the Trust's obligations with
respect to the Preferred Securities.
Interest Deferral.......... The Company has the right to defer payments of
interest on the Series Junior Subordinated
Notes by extending the interest payment period on
the Series Junior Subordinated Notes, at any
time and from time to time, for up to
consecutive quarters (each, an "Extension
Period"). The only restrictions on the Company's
ability to defer payments of interest are that
during the Extension Period the Company may not
(i) pay dividends on or redeem any of its capital
stock or (ii) pay principal or interest on any
debt securities ranking pari passu or subordinate
to the Series Junior Subordinated Notes. There
could be multiple Extension Periods of varying
lengths throughout the term of the Series
Junior Subordinated Notes.
If interest payments on the Series Junior
Subordinated Notes are deferred, distributions on
the Preferred Securities will also be deferred.
During an Extension Period, holders of Preferred
Securities will continue to accrue income for
federal income tax purposes in advance of the
receipt of the cash payments attributable to such
deferred interest. See "Description of the Series
Junior Subordinated Notes -- Option to Extend
Interest Payment Period" and "Certain Federal
Income Tax Considerations -- Original Issue
Discount" and "-- Market Discount." Deferred
interest will bear interest, compounded
, at a rate per annum equal to the
Securities Rate from the date of deferral to the
date of payment.
Redemption................. The Preferred Securities are subject to mandatory
redemption upon repayment of the Series Junior
Subordinated Notes at maturity or their earlier
redemption. The Series Junior Subordinated
Notes are redeemable by the Company (in whole or
in part), from time to time
S-4
<PAGE>
on or after , or at any time in
whole upon the occurrence of a Special Event. If
a partial redemption of the Series Junior
Subordinated Notes would result in the delisting
of the Preferred Securities, the Company may only
redeem the Series Junior Subordinated Notes in
whole. Any partial redemption of the
Series Junior Subordinated Notes will be
effected by the redemption of an equivalent
amount of Trust Securities, to be allocated
approximately 97% to the Preferred Securities and
3% to the Common Securities. See "Description of
the Preferred Securities -- Redemption" and
"-- Special Event Redemption or Distribution."
Special Event.............. A Special Event means a Tax Event or an Investment
Company Act Event. A "Tax Event" means that the
Administrative Trustees and the Company shall
have received an opinion from independent tax
counsel experienced in such matters (which may be
counsel to the Company) to the effect that, as a
result of (a) any amendment to, or change
(including any announced prospective change) in,
the laws (or any regulations 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
Trust would be subject to United States federal
income tax with respect to income accrued or
received on the Series Junior Subordinated
Notes, (ii) interest payable to the Trust on the
Series Junior Subordinated Notes would not be
deductible by the Company for United States
federal income tax purposes, or (iii) the 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 Issue Date. An
"Investment Company Act Event" means that the
Administrative Trustees and the Company shall
have received an opinion of independent counsel
(which may be counsel to the Company) to the
effect that, as a result 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 after the Issue Date, there
is more than an insubstantial risk that the Trust
is or will be considered an investment company
under the Investment Company Act of 1940, as
amended (the "1940 Act").
Redemption Price........... In the event of the redemption of the Trust
Securities or other termination of the Trust
without distribution of the Series Junior
Subordinated Notes, each Preferred Security shall
be entitled to receive a liquidation amount of
$25 plus accrued and unpaid distributions thereon
(including interest thereon) to the date of
payment.
S-5
<PAGE>
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should consider particularly the following matters:
RANKING OF AND RIGHTS UNDER THE SERIES JUNIOR SUBORDINATED NOTES
No amounts will be available to make payments on the Preferred Securities
except from payments made on the Series Junior Subordinated Notes. The
obligations of the Company under the Series Junior Subordinated Notes are
subordinate and junior in right of payment to all present and future Senior
Indebtedness of the Company. At , Senior Indebtedness of
the Company aggregated approximately $ . There are no terms in the
Preferred Securities, the Series Junior Subordinated Notes or the Guarantee
that limit the Company's ability to incur additional indebtedness, including
indebtedness that ranks senior to the Series Junior Subordinated Notes. See
"Description of the Guarantees" and "Description of the Junior Subordinated
Notes -- Subordination" in the accompanying Prospectus.
RANKING OF AND RIGHTS UNDER THE GUARANTEE
The Company's obligations under the Guarantee are subordinate and junior in
right of payment to all liabilities of the Company and will be pari passu with
the most senior preferred stock issued by the Company. If the Company were to
default in its obligation to pay amounts payable on the Series Junior
Subordinated Notes, the Trust would lack available funds for the payment of
distributions or amounts payable on redemption of the Preferred Securities or
otherwise, and in such event holders of the Preferred Securities would not be
able to rely upon the Guarantee for payment of such amounts.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Subordinated Note Indenture, and at any
time, and from time to time, to defer payments of interest on the Series
Junior Subordinated Notes for a period of up to consecutive quarters
(each, an "Extension Period"), but not beyond the stated maturity of the Series
Junior Subordinated Notes. Prior to the termination of any Extension Period,
the Company may further defer payments of interest, provided that such Extension
Period, together with all such previous and further extensions thereof, may not
exceed consecutive quarters. Upon the termination of any Extension Period
and the payment of all amounts then due, the Company may select a new Extension
Period, subject to the above requirements. There could be multiple Extension
Periods of varying lengths throughout the term of the Series Junior
Subordinated Notes. Deferred installments of interest on the Series Junior
Subordinated Notes will bear interest, compounded , at a rate per
annum equal to the Securities Rate. The payment of such deferred interest,
together with interest thereon, will be passed through to the holders of the
Preferred Securities as received at the end of any Extension Period.
The only restrictions on the Company's ability to defer payments of
interest are that during any Extension Period the Company may not (i) pay
dividends on or redeem any of its capital stock or (ii) pay principal or
interest on any debt securities ranking pari passu or subordinate to the Series
Junior Subordinated Notes. See "Description of the Preferred
Securities -- Distributions" and "Description of the Series Junior
Subordinated Notes -- Option to Extend Interest Payment Period."
Should the Company exercise its rights to defer payments of interest, each
holder of Preferred Securities will continue to accrue income (as original issue
discount -- OID) for United States federal income tax purposes in respect of the
deferred interest allocable to its Preferred Securities. As a result, holders of
Preferred Securities will recognize income for United States federal income tax
purposes in advance of the receipt of cash and will not receive the cash from
the Trust related to such income if such holders dispose of their Preferred
Securities prior to the record date for the date on which distributions of such
amounts are made. See "Certain Federal Income Tax Considerations -- Original
Issue Discount" and "-- Sale of
S-6
<PAGE>
Preferred Securities." INVESTORS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES OF AN INVESTMENT IN THE PREFERRED SECURITIES.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series
Junior Subordinated Notes. However, should the Company determine to exercise
such right in the future, the market price of the Preferred Securities is likely
to be affected. A holder that disposes of its Preferred Securities during an
Extension Period, therefore, might not receive the same return on its investment
as a holder that continues to hold its Preferred Securities. In addition, as a
result of the existence of the Company's right to defer interest payments, the
market price of the Preferred Securities (which represent an undivided
beneficial interest in the Series Junior Subordinated Notes) may be more
volatile than other securities on which OID accrues that do not have such
rights.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
If a Special Event shall occur and be continuing, the Company will have the
option to redeem the Series Junior Subordinated Notes in cash (with the result
that the Preferred Securities shall be redeemed). In addition, the Company will
have the right at any time to terminate the Trust and cause the Series Junior
Subordinated Notes to be distributed to the holders of the Preferred Securities
in liquidation of the Trust. See "Description of the Preferred
Securities -- Special Event Redemption or Distribution."
There can be no assurance as to the market price for the Series Junior
Subordinated Notes that may be distributed in exchange for Preferred Securities
if a termination or liquidation of the Trust were to occur. Accordingly, the
Series Junior Subordinated Notes that the investor may receive on termination
and liquidation of the Trust may trade at a discount to the price that the
investor paid to purchase the Preferred Securities offered hereby. See
"Description of the Series Junior Subordinated Notes."
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"),
the revenue portion of President Clinton's budget proposal, was released. The
Bill would, among other things, generally deny interest deductions for interest
on an instrument, issued by a corporation, that has a maximum term of more than
20 years and that is not shown as indebtedness on the separate balance sheet of
the issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above-described provisions of the Bill were proposed to be
effective generally for instruments issued on or after December 7, 1995. If such
provisions were to apply to the Series Junior Subordinated Notes, the Company
would be unable to deduct interest on the Series Junior Subordinated Notes.
However, on March 29, 1996, the Chairmen of the Senate Finance and House Ways
and Means Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative proposals, if
adopted, will be no earlier than the date of appropriate Congressional action.
The Company believes that, under current law, it will be able to deduct interest
on the Series Junior Subordinated Notes. There can be no assurance, however,
that current or future legislative proposals or final legislation will not
affect the ability of the Company to deduct interest on the Series Junior
Subordinated Notes. Such a change could give rise to a Tax Event, which would
permit the Company to cause a redemption of the Preferred Securities, as
described more fully under "Description of the Preferred Securities -- Special
Event Redemption or Distribution."
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and, except
for the rights of holders of Preferred Securities to appoint a Substitute
Property Trustee upon the occurrence of certain events described herein, will
not be entitled to vote to appoint, remove or replace the Securities Trustees,
which voting rights are vested exclusively in the holder of the Common
Securities.
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TRADING CHARACTERISTICS OF PREFERRED SECURITIES
The Preferred Securities are expected to be listed on the NYSE, subject to
official notice of issuance. Accordingly, the Preferred Securities are expected
to trade at a price that takes into account the value, if any, of accrued but
unpaid distributions; thus, purchasers will not pay and sellers will not receive
accrued and unpaid interest with respect to the Preferred Securities that is not
included in the trading price thereof. Nonetheless, interest on the Series
Junior Subordinated Notes will be included in the gross income of U.S. holders
of Preferred Securities as it accrues rather than when it is paid. To the extent
the selling price is less than the holder's adjusted tax basis (which will
include, in the form of OID, all accrued but unpaid interest), a holder
generally will recognize a capital loss. Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes. See "Certain Federal Income Tax
Considerations -- Original Issue Discount" and "-- Sale of Preferred
Securities."
The trading price of the Preferred Securities is likely to be sensitive to
the level of interest rates generally. If interest rates rise in general, the
trading price of the Preferred Securities may decline to reflect the additional
yield requirements of the purchasers. Conversely, a decline in interest rates
may increase the trading price of the Preferred Securities, although any
increase will be moderated by the Company's ability to call the Series Junior
Subordinated Notes at any time on or after at a redemption price
equal to 100% of the principal amount to be redeemed plus accrued but unpaid
interest. In addition, because holders of Preferred Securities will be paid only
from payments on the Series Junior Subordinated Notes and may receive Series
Junior Subordinated Notes upon the termination of the Trust, prospective
purchasers of Preferred Securities are making an investment decision with regard
to the Series Junior Subordinated Notes and should carefully review all the
information regarding the Series Junior Subordinated Notes contained herein.
See "Description of the Preferred Securities -- Special Event Redemption or
Distribution" and "Description of the Series Junior Subordinated Notes."
GEORGIA POWER CAPITAL TRUST [ ]
The Trust is a statutory business trust formed under Delaware law pursuant
to the filing of a certificate of trust with the Delaware Secretary of State on
June 13, 1996. The Trust's business is defined in a trust agreement, executed by
the Company, as Depositor, and the Delaware Trustee thereunder. This trust
agreement will be amended and restated in its entirety on the Issue Date
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form a part
(the "Trust Agreement"). The Trust Agreement will be qualified as an indenture
under the Trust Indenture Act of 1939, as amended (the "1939 Act"). The Trust
exists for the exclusive purposes of (i) issuing the Trust Securities
representing undivided beneficial interests in the assets of the Trust, (ii)
investing the gross proceeds of the Trust Securities in the Series Junior
Subordinated Notes, and (iii) engaging in only those other activities necessary,
appropriate, convenient or incidental thereto. The Trust has a term of
approximately years, but may terminate earlier as provided in the Trust
Agreement.
Upon issuance of the Preferred Securities, the purchasers thereof will own
all of the Preferred Securities. The Company will acquire all of the Common
Securities, which will have an aggregate liquidation amount equal to
approximately 3% of the total capital of the Trust. The Common Securities will
rank pari passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and continuance of a Trust Agreement
Event of Default, the rights of the holders of Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
will be subordinated to the rights of the holders of the Preferred Securities.
The Trust's business and affairs will be conducted by the Securities
Trustees, which shall be appointed by the Company as the holder of the Common
Securities. Two officers of the Company initially will serve as Administrative
Trustees. Chemical Bank will serve as Property Trustee and will hold legal title
to the Series Junior Subordinated Notes issued by the Company on behalf of the
Trust and the holders of the Trust Securities. Chemical Bank Delaware will serve
as Delaware Trustee. In certain circumstances, the holders of a majority in
liquidation amount of the Preferred Securities will be entitled to appoint a
Substitute Property Trustee. See "Description of the Preferred
Securities -- Voting Rights."
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The Property Trustee will hold legal title to the Series Junior
Subordinated Notes for the benefit of the Trust and the holders of the Trust
Securities and will have the power to exercise all rights, powers and privileges
under the Subordinated Note Indenture as the holder of the Series Junior
Subordinated Notes. The Property Trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the holders of the Trust
Securities. Subject to the right of the holders of the Preferred Securities to
appoint a Substitute Property Trustee in certain instances, the Company, as the
holder of all the Common Securities, will have the right to appoint, remove or
replace all the Securities Trustees.
The Series Junior Subordinated Notes will constitute substantially all of
the assets of the Trust. Other assets that may constitute "Trust Property" (as
that term is defined in the Trust Agreement) include any cash on deposit in, or
owing to, the payment account as established under the Trust Agreement, as well
as any other property or assets held by the Property Trustee pursuant to the
Trust Agreement. In addition, the Trust may, from time to time, receive cash
pursuant to the Agreement as to Expenses and Liabilities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are as set forth in the Trust
Agreement, the Delaware Business Trust Act, and the 1939 Act. See "Description
of the Preferred Securities."
The Trust's registered office in the State of Delaware is c/o Chemical Bank
Delaware, 1201 Market Street, Wilmington, Delaware 19801. The principal place of
business of the Trust shall be c/o the Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, telephone (404) 526-6526, Attn: Corporate Secretary.
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the Trust
Agreement. The Trust Agreement will be qualified as an indenture under the 1939
Act. The Property Trustee will act as the indenture trustee with respect to the
Trust, as well as the Guarantee, for purposes of compliance with the provisions
of the 1939 Act. The terms of the Preferred Securities will include those stated
in the Trust Agreement, the Delaware Business Trust Act, and those made part of
the Trust Agreement by the 1939 Act. The following summary of the principal
terms and provisions of the Preferred Securities does not purport to be complete
and is subject to, and qualified in its entirety by reference to, the Trust
Agreement, the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus Supplement and the accompanying Prospectus
are a part, as well as the 1939 Act.
GENERAL
The Trust Agreement authorizes the Administrative Trustees, on behalf of
the Trust, to issue the Preferred Securities, which represent preferred
undivided beneficial interests in the assets of the Trust, and the Common
Securities, which represent common undivided beneficial interests in the assets
of the Trust. All of the Common Securities will be owned by the Company. The
Common Securities rank pari passu, and payments will be made thereon on a pro
rata basis, with the Preferred Securities, except that upon the occurrence of a
Trust Agreement Event of Default, the rights of the holders of the Common
Securities to receive payment of periodic distributions and payments upon
liquidation, redemption and otherwise will be subordinated to the rights of the
holders of the Preferred Securities. The Trust Agreement does not permit the
issuance by the Trust of any securities other than the Trust Securities or the
incurrence of any indebtedness by the Trust. Pursuant to the Trust Agreement,
the Property Trustee will own and hold the Junior Subordinated Notes for the
benefit of the Trust and the holders of the Trust Securities. The payment of
distributions out of money held by the Trust, and payments upon redemption of
the Preferred Securities or liquidation of the Trust, are guaranteed by the
Company on a subordinated basis as and to the extent described under
"Description of the Guarantees" in the accompanying Prospectus. The Guarantee
does not cover payment of distributions on the Preferred Securities when the
Trust does not have legally and immediately available funds sufficient to make
such distributions. In such event, the remedy of a holder of Preferred
Securities is to direct the Property Trustee to enforce its rights under the
Series Junior Subordinated Notes. The above mechanisms and obligations
constitute a full and unconditional guarantee by the Company of payments due on
the Preferred Securities. See "-- Voting Rights" below.
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DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at the Securities
Rate and will accrue from the Issue Date and, except in the event of an
Extension Period, will be payable in arrears on of each
year. In the event that any date on which distributions are to be made on the
Preferred Securities is not a Business Day, then payment of the distributions
payable on such date will be made on the next succeeding day that 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, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. A "Business Day" shall
mean any day other than Saturday, Sunday or any day on which banking
institutions in New York City (or in the jurisdiction in which the Indenture
Trustee's or Property Trustee's principal offices are located) are authorized or
required by law to close.
Distributions payable on any Distribution Date will be payable to the
holders of record on the Record Date for such Distribution Date, which is the
close of business on the fifteenth calendar day preceding such Distribution
Date. Subject to any applicable laws and regulations and the provisions of the
Trust Agreement, each such payment will be made as described under
"-- Book-Entry Only Issuance -- The Depository Trust Company" below. The amount
of distributions payable for any period will be computed on the basis of a
360-day year of twelve 30-day months.
The Company has the right under the Subordinated Note Indenture to defer
payments of interest on the Series Junior Subordinated Notes by extending the
interest payment period from time to time on the Series Junior Subordinated
Notes (each, an "Extension Period") which, if exercised, would defer
distributions on the Preferred Securities during any such
extended interest payment period. Deferred installments of interest on the
Series Junior Subordinated Notes will bear interest, compounded
, at a rate per annum equal to the Securities Rate. If
distributions are deferred, the deferred distributions and accrued interest
thereon shall be paid, if funds are legally available therefor, to holders of
record of the Preferred Securities as they appear on the books and records of
the Trust on the Record Date next following the termination of such Extension
Period. See "Description of the Series Junior Subordinated Notes -- Interest"
and "-- Option to Extend Interest Payment Period."
Distributions on the Preferred Securities must be paid on the Distribution
Dates to the extent that the Trust has funds legally and immediately available
for the payment of such distributions. The Trust's funds available for
distribution to the holders of the Preferred Securities will be limited to
payments received under the Series Junior Subordinated Notes. See "Description
of the Series Junior Subordinated Notes."
REDEMPTION
The Preferred Securities are subject to mandatory redemption upon repayment
of the Series Junior Subordinated Notes at maturity or their earlier
redemption. The Series Junior Subordinated Notes will mature on ,
and may be redeemed, in whole or in part, at the option of the Company, at
any time on or after , or at any time in whole
upon the occurrence of a Special Event. Upon the repayment of the
Series Junior Subordinated Notes, whether at maturity or upon redemption, the
proceeds from such repayment or payment shall simultaneously be applied to
redeem a like amount of Trust Securities upon not less than 30 nor more than 60
days' notice, at the Redemption Price (as defined below). See "Description of
the Series Junior Subordinated Notes -- Optional Redemption." If a partial
redemption of the Series Junior Subordinated Notes would result in the
delisting of the Preferred Securities, the Company may only redeem the
Series Junior Subordinated Notes in whole. In the event that fewer than all of
the outstanding Trust Securities are to be redeemed, the Preferred Securities to
be redeemed will be selected as described under "-- Book-Entry Only
Issuance -- The Depository Trust Company" below. If the Preferred Securities are
no longer in book-entry only form, the Preferred Securities to be redeemed will
be selected by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or integral multiples thereof) of the aggregate liquidation amount
of Preferred Securities of a denomination larger than $25; provided, however,
that before undertaking the redemption of the Preferred Securities on other than
a pro rata basis, the Property Trustee
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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 Redemption Price for each Preferred Security shall equal the stated
liquidation amount of $25 plus accrued and unpaid distributions thereon to the
date of payment.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Special Event at any time, the Company will have
the option to redeem the Series Junior Subordinated Notes in whole (and thus
cause the redemption of the Preferred Securities in whole). A Special Event is
either an Investment Company Act Event or a Tax Event.
An "Investment Company Act Event" means that the Administrative Trustees
and the Company shall have received an opinion of independent counsel (which may
be counsel to the Company) to the effect that, as a result 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 after the Issue Date, there is more than an insubstantial risk that
the Trust is or will be considered an investment company under the 1940 Act.
"Tax Event" means that the Administrative Trustees and the Company shall
have received an opinion from independent tax counsel experienced in such
matters (which may be counsel to the Company) to the effect that, as a result of
(a) any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations 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 Trust would be subject to United
States federal income tax with respect to income accrued or received on the
Series Junior Subordinated Notes, (ii) interest payable to the Trust on the
Series Junior Subordinated Notes would not be deductible by the Company for
United States federal income tax purposes or (iii) the 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 Issue Date.
See "Risk Factors -- Possible Tax Law Changes."
The Company will have the right at any time to terminate the Trust and
cause the Series Junior Subordinated Notes to be distributed to the holders
of the Preferred Securities in liquidation of the Trust.
If Series Junior Subordinated Notes are distributed to the holders of
the Preferred Securities, the Company will use its best efforts to have the
Series Junior Subordinated Notes listed on the NYSE or on such other
exchange as the Preferred Securities are then listed. After the date for any
distribution of Series Junior Subordinated Notes upon termination of the
Trust, (i) the Preferred Securities and the Guarantee will no longer be deemed
to be outstanding, (ii) the depositary or its nominee, as the record holder of
the Preferred Securities, will receive a registered global certificate or
certificates representing the Series Junior Subordinated Notes to be
delivered upon such distribution and (iii) any certificates representing
Preferred Securities and the Guarantee not held by the depositary or its nominee
will be deemed to represent Series Junior Subordinated Notes having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Securities Rate of, and accrued and
unpaid interest equal to accrued and unpaid distributions on, such Preferred
Securities, until such certificates are presented to the Company or its agent
for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Series Junior Subordinated Notes that may be distributed
in exchange for the Preferred Securities if a termination and liquidation of the
Trust were to occur. Accordingly, the Preferred Securities that an investor may
purchase, or the Series Junior Subordinated Notes that the investor may
receive on termination and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Preferred Securities offered
hereby.
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<PAGE>
REDEMPTION PROCEDURES
In the event that fewer than all of the Trust Securities are to be
redeemed, then the aggregate liquidation preference for the Trust Securities to
be redeemed shall be allocated 97% to the Preferred Securities and 3% to the
Common Securities.
The Preferred Securities redeemed on each redemption date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
the Series Junior Subordinated Notes. The Redemption Price of Preferred
Securities shall be deemed payable on each redemption date only to the extent
that the Trust has funds legally and immediately available for payment of such
Redemption Price.
If the Property Trustee gives a notice of redemption in respect of
Preferred Securities (which notice will be irrevocable), then, by 2:00 P.M., New
York City time, on the redemption date, subject to the immediately preceding
paragraph, the Property Trustee will irrevocably deposit with the securities
depositary, so long as the Preferred Securities are in book-entry only form,
sufficient funds to pay the applicable Redemption Price. See "-- Book-Entry Only
Issuance -- The Depository Trust Company" below. If the Preferred Securities are
no longer in book-entry only form, the Property Trustee, subject to the
immediately preceding paragraph, 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. If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue and all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price, but without
interest on such Redemption Price. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will 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 falls in the next calendar
year, such payment will be made on the immediately preceding Business Day. In
the event that payment of the Redemption Price in respect of Preferred
Securities is improperly withheld or refused and not paid either by the Trust or
by the Company pursuant to the Guarantee, distributions on such Preferred
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. See "-- Events of
Default" below, "Relationship Among the Preferred Securities, the Series
Junior Subordinated Notes and the Guarantee" and "Description of the
Guarantees -- Events of Default" in the accompanying Prospectus.
Subject to the foregoing 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.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Preferred Securities. The Preferred Securities will be issued only as fully
registered securities registered in the name of Cede & Co., DTC's nominee. One
or more fully registered global Preferred Securities certificates will be
issued, representing in the aggregate the total number of Preferred Securities,
and will be deposited with DTC.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the 1934 Act. DTC holds
securities that its participants ("Participants") deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the NYSE, the American Stock
Exchange, Inc., and the National Association of
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Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
Preferred Securities ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities. DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to DTC. If less than all of the Preferred
Securities are being redeemed, DTC will reduce the amount of the interest of
each Direct Participant in the Preferred Securities in accordance with its
procedures.
Although voting with respect to the Preferred Securities is limited, in
those cases where a vote is required, neither DTC nor Cede & Co. will itself
consent or vote with respect to Preferred Securities. Under its usual
procedures, DTC would mail an Omnibus Proxy to the Trust as soon as possible
after the record date. The Omnibus Proxy assigns Cede & Co.'s consenting or
voting rights to those Direct Participants to whose accounts the Preferred
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
Distribution payments on the Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the account of customers registered in "street name," and will be the
responsibility of such Participant and not of DTC, the Trust, any trustee or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of distributions to DTC is the responsibility of the
Trust, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a Beneficial Owner in a global Preferred
Security will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of securities in definitive form. Such laws may impair the ability to
transfer beneficial interests in a global Preferred Security.
DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving reasonable notice to
the Trust. Under such circumstances, in the event that a successor securities
depositary is not obtained, Preferred Securities certificates will be printed
and delivered to
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the holders of record. Additionally, the Company may decide to discontinue use
of the system of book-entry transfers through DTC (or a successor depositary)
with respect to the Preferred Securities. In that event, certificates for the
Preferred Securities will be printed and delivered to the holders of record.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company and the Trust believe to be
reliable, but the Company and the Trust take no responsibility for the accuracy
thereof. The Trust has no responsibility for the performance by DTC or its
Participants of their respective obligations as described herein or under the
rules and procedures governing their respective operations.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to the Trust Agreement, the Trust shall terminate on
, or earlier upon (i) the occurrence of a Bankruptcy Event (as
defined in the Trust Agreement), dissolution or liquidation of the Company, or
termination of the Trust pursuant to a judicial decree; (ii) the distribution of
the Series Junior Subordinated Notes to the holders of the Preferred
Securities and Common Securities, if the Company, as Depositor, has given
written direction to the Property Trustee to terminate the Trust (which
direction is optional and wholly within the discretion of the Company, as
Depositor); or (iii) the payment at maturity or redemption of all of the Series
Junior Subordinated Notes, and the consequent payment of the Trust Securities.
If an early termination occurs as described in clause (i) or (ii) above,
the Trust shall be liquidated, and the Property Trustee shall distribute to each
holder of Preferred Securities and Common Securities a like amount of Series
Junior Subordinated Notes, unless such distribution is determined by the
Administrative Trustees not to be practical, in which event such holders will be
entitled to receive, out of the assets of the Trust available for distribution
to holders after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation preference of $25 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 directly by the Trust on the Trust
Securities shall be paid on a pro rata basis. The holder of the Common
Securities will be entitled to receive distributions upon any such dissolution
pro rata with the holders of the Preferred Securities, except that if a Trust
Agreement Event of Default has occurred and is continuing, the holders of
Preferred Securities shall have a preference over the holders of Common
Securities.
EVENTS OF DEFAULT
Any one of the following events constitutes an "Event of Default" under the
Trust Agreement ("Trust Agreement Event of Default") with respect to the Trust
Securities issued thereunder (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 "Event of Default" as defined in Section 501
of the Subordinated Note Indenture (see "Description of the Junior
Subordinated Notes -- Events of Default" in the accompanying Prospectus);
or
(ii) default by the Property Trustee in the payment of any
distribution when it becomes due and payable, and the 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 Preferred Security or Common Security when it becomes due and
payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Securities Trustees in the Trust Agreement (other than a
covenant or warranty a default in the performance of which or the breach of
which 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 such Securities Trustees
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by the holders of at least 10% in liquidation amount of the outstanding
Preferred Securities a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Securities Trustees.
Within 90 Business Days after the occurrence of any Trust Agreement Event
of Default, the Property Trustee shall transmit notice of any default known to
the Property Trustee to the holders of Trust Securities and the Company, unless
such Trust Agreement Event of Default shall have been cured or waived.
If a Trust Agreement Event of Default occurs and is continuing, then,
pursuant to the Trust Agreement, holders of a majority in aggregate liquidation
amount of Preferred Securities have the right 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 under the Trust Agreement to
exercise the remedies available to it as holder of the Series Junior
Subordinated Notes. If the Property Trustee fails to enforce its rights under
the Series Junior Subordinated Notes, a holder of Preferred Securities may, to
the extent permitted by applicable law, institute a legal proceeding directly
against the Company to enforce its rights under the Trust Agreement without
first instituting any legal proceeding against the Property Trustee or the
Trust. See "Relationship Among the Preferred Securities, the Series Junior
Subordinated Notes and the Guarantee" herein and "Description of the
Guarantees -- Events of Default" in the accompanying Prospectus.
Unless a Trust Agreement Event of Default shall have occurred and be
continuing, the Securities Trustees may be removed at any time by act of the
holder of the Common Securities. If a Trust Agreement Event of Default has
occurred and is continuing, any Securities Trustee may be removed at such time
by act of the holders of a majority in liquidation amount of the Preferred
Securities, delivered to the appropriate Securities Trustee (in its individual
capacity and on behalf of the Trust). No resignation or removal of any
Securities Trustee and no appointment of a successor shall be effective until
the acceptance of appointment by the successor Trustee in accordance with the
requirements of the Trust Agreement.
If a Trust Agreement Event of Default has occurred and is continuing, the
holders of Preferred Securities shall have a preference over the holders of
Common Securities upon dissolution of the Trust as described above. See
"-- Liquidation Distribution Upon Dissolution."
VOTING RIGHTS
Except as provided below and under "Description of the
Guarantees -- Amendments and Assignment" in the accompanying Prospectus and as
otherwise required by law and the Trust Agreement, the holders of the Preferred
Securities will have no voting rights.
If any proposed amendment to the Trust Agreement provides for, or the
Securities Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the Trust Agreement, then the holders of outstanding Preferred
Securities will be entitled to vote as a class on such amendment or proposal of
the Securities Trustees, 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 such outstanding Preferred Securities.
So long as any Series Junior Subordinated Notes are held by the Property
Trustee, the Securities Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee
(as defined herein), or executing any trust or power conferred on the Indenture
Trustee with respect to the Series Junior Subordinated Notes, (ii) waive any
past default which is waivable under Section 513 of the Subordinated Note
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all the Series Junior Subordinated Notes shall be due and
payable, or (iv) consent to any amendment, modification or termination of the
Subordinated Note Indenture or the Series Junior Subordinated Notes, where
such consent shall be required, or to any other action, as the holder of the
Series Junior Subordinated Notes, under the Subordinated Note Indenture,
without, in each
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case, obtaining the prior approval of the holders of at least 66 2/3% in
liquidation amount of the outstanding Preferred Securities; provided, however,
that where a consent under the Subordinated Note Indenture would require the
consent of each holder of Series Junior Subordinated Notes affected thereby,
no such consent shall be given by the Securities Trustees without the prior
consent of each holder of Preferred Securities. The Securities Trustees shall
not revoke any action previously authorized or approved by a vote of the holders
of the Preferred Securities, except pursuant to a subsequent vote of such
holders. The Property Trustee shall notify all holders of the Preferred
Securities of any notice of default received from the Indenture Trustee with
respect to the Series 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 Securities Trustees shall 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 federal income tax purposes on
account of such action.
Any required approval of holders of Preferred Securities may be given at a
separate meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Administrative Trustees will cause a notice of
any meeting at which holders of Preferred Securities are entitled to vote to be
given to each holder of record of Preferred Securities in the manner set forth
in the Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Company, the Securities Trustees or any
affiliate of the Company or any Securities Trustee, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
CO-PROPERTY TRUSTEES AND SEPARATE PROPERTY TRUSTEE
At any time or times, for the purpose of meeting the legal requirements of
the 1939 Act or of any jurisdiction in which any part of the Trust Property (as
defined in the Trust Agreement) may at the time be located, the holder of the
Common Securities and the Property Trustee shall have power to appoint, and upon
the written request of the Property Trustee, the Company, as 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-property trustee, jointly with the Property Trustee, of all or any part of
such Trust Property, or to act as separate trustee of any such 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 such capacity, any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the Trust Agreement. If the Company, as 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 Note Indenture has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment.
AMENDMENT OF THE TRUST AGREEMENT
The Trust Agreement may be amended from time to time by the Company and the
Securities Trustees without the consent of the holders of the Trust Securities
(i) to cure any ambiguity, correct or supplement any provision therein which may
be inconsistent with any other provision therein, or to make any other
provisions with respect to matters or questions arising under the Trust
Agreement, which shall not be inconsistent with the other provisions of the
Trust Agreement, provided that the amendment does not adversely affect in any
material respect the interests of any holder of Trust Securities, or (ii) to
modify, eliminate or add to any provisions of the 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 federal income tax purposes. Except as provided in the
succeeding paragraph, other amendments to the Trust Agreement may be made (i)
upon approval of the holders of not less than 66 2/3% in aggregate liquidation
amount of the Trust Securities then outstanding and (ii) upon receipt by the
Securities Trustees of an opinion of counsel to the effect that such amendment
will not affect the Trust's status as a grantor trust or the Trust's exemption
from the 1940 Act.
Notwithstanding the foregoing, without the consent of each affected holder
of Trust Securities, the Trust Agreement may not be amended to (i) change the
amount or timing of any distribution on the Trust
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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 holder of Trust Securities to institute suit for the
enforcement of any such payment on or after such date, or (iii) change the
consent required to amend the Trust Agreement.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
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 (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 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
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 1940 Act,
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.
Any corporation or other body into which any of the Property Trustee, the
Delaware Trustee or any Administrative Trustee that 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
any such Securities Trustee shall be a party, or any corporation or other body
succeeding to all or substantially all the corporate trust business of any such
Securities Trustee, shall be the successor of such Securities Trustee under the
Trust Agreement, provided such corporation is otherwise qualified and eligible
under the Trust Agreement.
PAYMENT AND PAYING AGENT
So long as DTC is acting as securities depositary for the Preferred
Securities, payments in respect of the Preferred Securities shall be made to
DTC, which is to credit the relevant accounts at DTC on the applicable
Distribution Dates. If the Preferred Securities are not held by DTC, such
payments shall be made by check mailed to the address of the holder entitled
thereto as such address shall appear on the Securities Register (as such term is
defined in the Trust Agreement). The Paying Agent shall initially be the
Property Trustee. The Paying Agent shall be permitted to resign as Paying Agent
upon 30 days' written notice to the Administrative
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Trustees and the Company. In such event, the Administrative Trustees shall
appoint a successor to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
It is anticipated that the Property Trustee, or one of its affiliates, will
act as registrar and transfer agent (the "Securities Registrar") for the
Preferred Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment in respect of any tax or
other governmental charges which may be imposed in relation to it.
The Securities Registrar will not be required to register or cause to be
registered any transfer of Preferred Securities after they have been called for
redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to the occurrence of a Trust Agreement Event of
Default with respect to the Trust Securities, undertakes to perform only such
duties as are specifically set forth in the Trust Agreement and, after default,
shall exercise the same degree of care as a prudent individual would exercise in
the conduct of his or her own affairs. Subject to such provisions, the Property
Trustee is under no obligation to exercise any of the powers vested in it by the
Trust Agreement at the request of any holder of Preferred Securities, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby.
Chemical Bank, the Property Trustee, also serves as Indenture Trustee and
Guarantee Trustee. The Company and certain of its affiliates maintain deposit
accounts and banking relationships with Chemical Bank. Chemical Bank serves as
trustee under the Company's First Mortgage Bond Indenture and under another
indenture pursuant to which first mortgage bonds of an affiliate of the Company
are outstanding.
GOVERNING LAW
The Trust Agreement and the Trust Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware;
provided that the immunities and standard of care of the Property Trustee shall
be governed by New York law.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to operate the
Trust so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act or taxed as other than a grantor
trust for federal income tax purposes and so that the Junior Subordinated Notes
will be treated as indebtedness of the Company for federal income tax purposes.
In this connection, the Administrative Trustees and the Company are authorized
to take any action, not inconsistent with applicable law, the Trust's
certificate of trust or the Trust Agreement, that the Securities Trustees and
the Company determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the holders of the Preferred Securities.
DESCRIPTION OF THE SERIES JUNIOR SUBORDINATED NOTES
Set forth below is a description of the specific terms of the Series
Junior Subordinated Notes. This description supplements, and should be read
together with, the description of the general terms and provisions of the Junior
Subordinated Notes set forth in the accompanying Prospectus under the caption
"Description of the Junior Subordinated Notes." The following description does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, the description in the accompanying Prospectus and the
Subordinated Note Indenture (as defined therein).
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GENERAL
The Series Junior Subordinated Notes will be issued as a series of
Junior Subordinated Notes under the Subordinated Note Indenture. The Series
Junior Subordinated Notes will be limited in aggregate principal amount to
$ , such amount being the aggregate liquidation amount of the Trust
Securities.
The entire principal amount of the Series Junior Subordinated Notes
will mature and become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest, if any, on . The
Series Junior Subordinated Notes are not subject to any sinking fund
provision.
OPTIONAL REDEMPTION
The Company shall have the right to redeem the Series Junior
Subordinated Notes, in whole or in part, without premium, from time to time, on
or after , or at any time in whole upon
the occurrence of a Special Event as described under "Description of the
Preferred Securities -- Special Event Redemption or Distribution," upon not less
than 30 nor more than 60 days' notice, at a Redemption Price equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest,
including Additional Interest, if any, to the Redemption Date. If a partial
redemption of the Series Junior Subordinated Notes would result in the
delisting of the Preferred Securities, the Company may only redeem the Series
Junior Subordinated Notes in whole.
INTEREST
Each Series Junior Subordinated Note shall bear interest at the
Securities Rate from the Issue Date, payable in arrears on
of each year to the
person in whose name such Series Junior Subordinated Note is registered at
the close of business on the fifteenth calendar day prior to such payment date.
The amount of interest payable will be computed 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 Junior Subordinated Notes is not a Business Day, then payment
of the interest payable on such date will 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, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company shall have the right at any time, and from time to time, to
defer payments of interest on the Series Junior Subordinated Notes by
extending the interest payment period for up to consecutive quarters, but not
beyond the stated maturity date. At the end of an Extension Period, the Company
shall pay all interest then accrued and unpaid (including any Additional
Interest) (together with interest thereon at the Securities Rate compounded
; provided, that if the Company shall have given notice of its
election to select an Extension Period, (a) the Company shall not 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 (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 other than the
Guarantee) issued by the Company which rank pari passu with or junior to the
Series Junior Subordinated Notes. Prior to the termination of any Extension
Period, the Company may further defer payments of interest by extending the
interest payment period, provided that such Extension Period, together with all
such previous and further extensions thereof, may not exceed consecutive
quarters. Upon the termination of any Extension Period and the payment of all
amounts then due, the Company may select a new Extension Period, subject to the
above requirements. The Company has no present intention of exercising its
rights to defer payments of interest by extending the interest payment period on
the Series
Junior Subordinated Notes.
The Company shall give the holder or holders of the Series Junior
Subordinated Notes and the Indenture Trustee notice of its selection or
extension of an Extension Period at least one Business Day prior to
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the earlier of (i) the 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 the Trust is required to give notice
to the NYSE or other applicable self-regulatory organization of the record date
or the date such distributions are payable.
BOOK-ENTRY AND ISSUANCE
If distributed to holders of Trust Securities in connection with the
voluntary or involuntary dissolution, winding-up or liquidation of the Trust,
the Series Junior Subordinated Notes are expected to be issued in the form
of one or more global certificates registered in the name of the securities
depositary or its nominee. In such event, the procedures applicable to the
transfer and payment of the Series Junior Subordinated Notes are expected
to be substantially similar to those described with respect to the Preferred
Securities in "Description of the Preferred Securities -- Book-Entry Only
Issuance -- The Depository Trust Company."
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE SERIES JUNIOR SUBORDINATED NOTES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series Junior Subordinated Notes, such payments will be sufficient to cover
distributions and payments due on the Trust Securities primarily because (i) the
aggregate principal amount of Series Junior Subordinated Notes will be
equal to the sum of the aggregate stated liquidation amount of the Trust
Securities; (ii) the interest rate and interest and other payment dates on the
Series Junior Subordinated Notes will match the distribution rate and
distribution and other payment dates for the Preferred Securities; (iii) the
Company shall pay for all costs and expenses of the Trust pursuant to the
Agreement as to Expenses and Liabilities; and (iv) the Trust Agreement provides
that the Securities Trustees shall not cause or permit the Trust to, among other
things, engage in any activity that is not consistent with the purposes of the
Trust.
Payments of distributions (to the extent funds therefor are legally and
immediately available) and other payments due on the Preferred Securities (to
the extent funds therefor are legally and immediately available) are guaranteed
by the Company as and to the extent set forth under "Description of the
Guarantees" in the accompanying Prospectus. If the Company does not make
interest payments on the Series Junior Subordinated Notes, it is not
expected that the Trust will have sufficient funds to pay distributions on the
Preferred Securities. The Guarantee is a full and unconditional guarantee from
the time of its issuance, but does not apply to any payment of distributions
unless and until the Trust has sufficient funds legally and immediately
available for the payment of such distributions.
If the Company fails to make interest or other payments on the Series
Junior Subordinated Notes when due (taking into account any Extension Period),
the Trust Agreement provides a mechanism whereby the holders of the Preferred
Securities may appoint a substitute Property Trustee. Such holders may also
direct the Property Trustee to enforce its rights under the Series Junior
Subordinated Notes, including proceeding directly against the Company to enforce
the Series Junior Subordinated Notes. If the Property Trustee fails to
enforce its rights under the Series Junior Subordinated Notes, to the
fullest extent permitted by applicable law, any holder of Preferred Securities
may institute a legal proceeding directly against the Company to enforce the
Property Trustee's rights under the Series Junior Subordinated Notes
without first instituting any legal proceeding against the Property Trustee or
any other person or entity.
If the Company fails to make payments under the Guarantee, the Guarantee
provides a mechanism whereby the holders of the Preferred Securities may direct
the Guarantee Trustee to enforce its rights thereunder. If the Guarantee Trustee
fails to enforce the Guarantee, any holder of Preferred Securities may institute
a legal proceeding directly against the Company to enforce the Guarantee
Trustee's rights under the Guarantee without first instituting a legal
proceeding against the Guarantee Trustee or any other person or entity.
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The Guarantee, the Subordinated Note Indenture, the Series Junior
Subordinated Notes, the Trust Agreement and the Agreement as to Expenses and
Liabilities, as described above, constitute a full and unconditional guarantee
by the Company of the payments due on the Preferred Securities.
Upon any voluntary or involuntary dissolution, winding-up or termination of
the Trust, the holders of Preferred Securities will be entitled to receive, out
of assets legally available for distribution to holders, the Liquidation
Distribution in cash. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Series Junior Subordinated Notes, would be a subordinated
creditor of the Company, subordinated in right of payment to all Senior
Indebtedness, but entitled to receive payment in full of principal and interest,
before any stockholders of the Company receive payments or distributions.
Because the Company is guarantor under the Guarantee and has agreed to pay for
all costs, expenses and liabilities of the Trust (other than the Trust's
obligations to holders of the Preferred Securities) pursuant to the Agreement as
to Expenses and Liabilities, the positions of a holder of Preferred Securities
and a holder of Series Junior Subordinated Notes relative to other
creditors and to stockholders of the Company in the event of liquidation or
bankruptcy of the Company would be substantially the same.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Subordinated Note Indenture.
However, in the event of payment defaults under, or acceleration of, Senior
Indebtedness, the subordination provisions of the Series Junior Subordinated
Notes provide that no payments may be made in respect of the Series Junior
Subordinated Notes until such Senior Indebtedness has been paid in full or any
payment default thereunder has been cured or waived. Failure to make required
payments on the Series Junior Subordinated Notes would constitute an Event of
Default under the Subordinated Note Indenture except that failure to make
interest payments on the Series Junior Subordinated Notes will not be an Event
of Default during an Extension Period; provided, however, that any Extension
Period may not exceed consecutive quarters or extend beyond the stated
maturity of the Series Junior Subordinated Notes.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material United States federal income
tax consequences of the ownership and disposition of the Preferred Securities
and constitutes the opinion of Troutman Sanders LLP, counsel to the Company and
the Trust, insofar as it relates to matters of law and legal conclusions. This
summary deals only with Preferred Securities held as capital assets within the
meaning of Section 1221 of the Internal Revenue Code of 1986, as amended to the
date hereof (the Code), by Holders (as defined herein). Moreover, it does not
discuss all of the tax consequences that may be relevant to a Holder in light of
his particular circumstances or to Holders subject to special rules, such as
certain financial institutions, insurance companies, dealers in securities,
individual retirement and certain tax deferred accounts, and persons who engage
in a straddle or a hedge relating to a Preferred Security. Prospective investors
should consult their own tax advisors with regard to the application of the tax
considerations discussed below to their particular situations as well as the
application of any state, local or other tax laws. This summary is based on
laws, existing and proposed regulations, and applicable judicial and
administrative determinations, all of which are subject to change at any time,
and any such changes may be retroactively applied in a manner that could
adversely affect Holders. As used herein, the term "Holder" means a beneficial
owner of a Preferred Security that for United States federal income tax purposes
is (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or of any political subdivision thereof, or (iii) an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source. Thus, the following summary does not address any tax
consequences that apply specifically to nonresident aliens or foreign entities.
TREATMENT OF THE TRUST AND PREFERRED SECURITIES FOR FEDERAL INCOME TAX PURPOSES
The Trust will be treated as a "grantor trust" and not as an association
taxable as a corporation for federal income tax purposes. Thus, for federal
income tax purposes, each Holder will be treated as the beneficial
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owner of a pro rata undivided interest in the Series Junior Subordinated Notes
and, consequently, will be required to include in income the Holder's pro rata
share of the entire income from the Series Junior Subordinated Notes. Each
Holder generally will determine its net income or loss with respect to the Trust
in accordance with its own method of accounting, although income arising from
original issue discount ("OID") must be taken into account under the accrual
method of accounting even if the Holder otherwise would use the cash receipts
and disbursements method.
ORIGINAL ISSUE DISCOUNT
The Series Junior Subordinated Notes will be issued with OID within the
meaning of Section 1273 of the Code. Because the Holders will be treated for
federal income tax purposes as the owners of the Series Junior Subordinated
Notes, the Holders will be required to include in income their pro rata share of
OID accruing on the Series Junior Subordinated Notes in advance of the receipt
of some or all of the related cash payments on the Preferred Securities. Holders
(including Holders who are cash basis taxpayers) will include such OID in income
currently as interest as it accrues over the life of the Series Junior
Subordinated Notes under a formula based upon the compounding of
interest at a rate that provides for a constant yield to maturity. If (as
expected) the issue price of the Series Junior Subordinated Notes equals the
stated principal amount of such Notes, the amount of OID accruing during each
interest period will be approximately the same as the amount of stated
interest accruing during such period on the Series Junior Subordinated Notes.
The amount of OID on a Series Junior Subordinated Note will equal the
excess of the "stated redemption price at maturity" over the "issue price" of
the Series Junior Subordinated Note. The issue price of each Series Junior
Subordinated Note is expected to equal the stated principal amount of such Note.
Because the terms of the Series Junior Subordinated Notes permit the Company
to suspend payments of interest on the Notes for up to consecutive
quarters, the stated redemption price at maturity of the Series Junior
Subordinated Notes will equal the aggregate of all payments due on the Series
Junior Subordinated Notes, whether designated as principal or interest.
Accordingly, the interest payments on the Series Junior Subordinated
Notes will be included in the stated redemption price at maturity for purposes
of determining the amount of OID with which a Series Junior Subordinated Note
is issued, and if (as expected) the issue price equals the stated principal
amount of the Series Junior Subordinated Notes, the OID will equal the total
amount of interest that will be payable (assuming no redemption before maturity)
on the Series Junior Subordinated Notes.
In general, the amount of OID that must be included in a Holder's income
for a taxable year is the sum of the "daily portions" of OID on the Series
Junior Subordinated Notes for all days during the taxable year that the Holder
owns a Preferred Security. Such daily portions are determined by allocating to
each day in the accrual period a ratable portion of the OID allocable to that
accrual period. An accrual period is each successive period that ends
on an Interest Payment Date. In the case of an initial Holder, the amount of OID
allocable to each accrual period is determined by multiplying the "adjusted
issue price" of the related Series Junior Subordinated Notes at the beginning
of the period by their yield to maturity (based on compounding at the close of
each accrual period and taking into account the length of the accrual period).
The adjusted issue price of a Series Junior Subordinated Note at the beginning
of any accrual period will be the sum of its issue price and the amount of OID
allocable to all prior accrual periods, reduced by the amount of any payments
actually made with respect to such Series Junior Subordinated Note in all
prior accrual periods (and thus will equal approximately the stated principal
amount if the issue price is the stated principal amount and all accrued
interest is paid on each Interest Payment Date). A subsequent Holder also will
be required to include in gross income its pro rata daily portion of OID with
respect to the Series Junior Subordinated Notes. However, if a Holder acquires
Preferred Securities for an amount greater than the adjusted issue price of the
Series Junior Subordinated Notes (i.e., at an acquisition premium), such
Holder's daily portion of OID with respect to the Series Junior Subordinated
Notes will be reduced by an allocable portion of the acquisition premium.
S-22
<PAGE>
MARKET DISCOUNT
A purchaser of a Preferred Security at a discount from the adjusted issue
price of such purchaser's pro rata share of the Series Junior Subordinated
Notes acquires such Preferred Security with "market discount." However, market
discount with respect to a Preferred Security will be considered to be zero if
it is de minimis. Market discount will be de minimis with respect to a Preferred
Security if it is less than the product of (i) 0.25% of the adjusted issue price
of the purchaser's pro rata share of the Series Junior Subordinated Notes
multiplied by (ii) the number of complete years to maturity of such Series
Junior Subordinated Notes after the date of purchase. The purchaser of a
Preferred Security with more than a de minimis amount of market discount
generally will be required to treat any gain on the sale, exchange, redemption
or other disposition of all or part of the Preferred Securities (or related
Series Junior Subordinated Notes) as ordinary income to the extent of accrued
(but not previously taxed) market discount. Market discount generally will
accrue ratably during the period from the date of purchase of such Preferred
Security to the maturity date of the Series Junior Subordinated Notes, unless
the Holder irrevocably elects to accrue such market discount on the basis of a
constant interest rate.
A Holder who has acquired a Preferred Security at a market discount
generally will be required to defer any deductions of interest expense
attributable to any indebtedness incurred or continued to purchase or carry the
Preferred Security, to the extent such interest expense exceeds the related OID
income. Any such deferred interest expense generally will be allowable as a
deduction not later than the year in which the related market discount income is
recognized. As an alternative to the inclusion of market discount in income upon
disposition of all or a portion of a Preferred Security or the related Series
Junior Subordinated Notes (including redemptions thereof), a Holder may make an
election (which may not be revoked without the Internal Revenue Service's
consent) to include market discount in income as it accrues on all market
discount instruments acquired by the Holder during or after the taxable year for
which the election is made. In that case, the preceding deferral rule for
interest expense will not apply.
In lieu of the foregoing treatment of market discount and interest expense,
a Holder may elect to treat any market discount (including a de minimis amount)
as OID and accrue such discount on a constant-yield basis in the same manner as
the Holder accrues OID.
SALE OF PREFERRED SECURITIES
Upon the sale, retirement (including redemption) or other taxable
disposition of all or part of a Preferred Security, a Holder thereof will
recognize gain or loss equal to the difference between the amount realized on
such sale, retirement or other disposition and such Holder's adjusted tax basis
in the Preferred Security or part thereof. Any recognized gain or loss will be
capital gain or loss, except to the extent of any accrued market discount (see
"Market Discount" above), and such capital gain or loss will be long-term if the
holding period for the Preferred Security is more than one year at the time of
sale, retirement or other disposition. A Holder's adjusted tax basis in a
Preferred Security acquired by purchase will equal the cost of such Preferred
Security to the Holder, increased by the amount of any related accrued OID and
market discount included in taxable income by the Holder and reduced by any
prior payments on the Series Junior Subordinated Notes distributed on the
Preferred Security. The redemption of only part of a Preferred Security will
require an allocation of the Holder's pro rata share of the adjusted issue price
of the related Series Junior Subordinated Notes between the portion of the
Series Junior Subordinated Notes redeemed and retained by the Holder in order
to determine gain or loss and future accruals of OID.
RECEIPT OF SERIES JUNIOR SUBORDINATED NOTES UPON LIQUIDATION OF THE TRUST
As described under "Description of the Preferred Securities -- Special
Event Redemption or Distribution," Series Junior Subordinated Notes may be
distributed to Holders in exchange for the Preferred Securities and in
liquidation of the Trust. Such a distribution would be treated as a non-taxable
event to each Holder and each Holder would receive an aggregate tax basis in the
Holder's Series Junior Subordinated Notes equal to the Holder's aggregate tax
basis in its Preferred Securities. A Holder's holding period with respect to the
Series Junior Subordinated Notes so received in liquidation of the Trust would
include the period for which the Preferred Securities were held by such Holder.
S-23
<PAGE>
INFORMATION REPORTING TO HOLDERS
Income on the Preferred Securities will be reported to Holders on Form
1099, which form should be mailed to Holders of Preferred Securities by January
31 following each calendar year.
BACKUP WITHHOLDING
A Holder may be subject to "backup withholding" under certain
circumstances. Backup withholding applies to a Holder if the Holder, among other
things, (i) fails to furnish his social security number or other taxpayer
identification number ("TIN") to the payor responsible for backup withholding
(for example, the Holder's securities broker), (ii) furnishes such payor an
incorrect TIN, (iii) fails to provide such payor with a certified statement,
signed under penalties of perjury, that the TIN provided to the payor is correct
and that the Holder is not subject to backup withholding, or (iv) fails to
report properly interest and dividends on his tax return. Backup withholding,
however, does not apply to payments made to certain exempt recipients, such as
corporations and tax-exempt organizations. The backup withholding rate is 31% of
"reportable payments," which generally will include distributions of interest
and principal payments on the Series Junior Subordinated Notes.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"),
the revenue portion of President Clinton's budget proposal, was released. The
Bill would, among other things, generally deny interest deductions for interest
on an instrument, issued by a corporation, that has a maximum term of more than
20 years and that is not shown as indebtedness on the separate balance sheet of
the issuer or, where the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. The above-described provisions of the Bill were proposed to be
effective generally for instruments issued on or after December 7, 1995. If such
provisions were to apply to the Series Junior Subordinated Notes, the Company
would be unable to deduct interest on the Series Junior Subordinated Notes.
However, on March 29, 1996, the Chairmen of the Senate Finance and House Ways
and Means Committees issued a joint statement to the effect that it was their
intention that the effective date of the President's legislative proposals, if
adopted, will be no earlier than the date of appropriate Congressional action.
The Company believes that, under current law, it will be able to deduct interest
on the Series Junior Subordinated Notes. There can be no assurance, however,
that current or future legislative proposals or final legislation will not
affect the ability of the Company to deduct interest on the Series Junior
Subordinated Notes. Such a change could give rise to a Tax Event, which would
permit the Company to cause a redemption of the Preferred Securities, as
described more fully under "Description of the Preferred Securities -- Special
Event Redemption or Distribution."
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE MAY NOT BE APPLICABLE TO
A HOLDER, DEPENDING UPON A HOLDER'S PARTICULAR SITUATION, AND THEREFORE EACH
HOLDER SHOULD CONSULT HIS TAX ADVISOR WITH RESPECT TO THE TAX CONSEQUENCES OF
THE OWNERSHIP AND DISPOSITION OF PREFERRED SECURITIES, INCLUDING THE TAX
CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE
EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAW.
S-24
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), the Trust has agreed to sell to the Underwriters
named below, and the Underwriters, for whom is acting as
representative (the "Representative"), have severally agreed to purchase the
number of Preferred Securities set forth opposite their respective names below.
In the Underwriting Agreement, the Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all of the Preferred
Securities offered hereby if any of the Preferred Securities are purchased.
<TABLE>
<CAPTION>
NUMBER OF
NAME PREFERRED SECURITIES
------------------------------------------------------------ --------------------
<S> <C>
--------------------
Total.............................................
==============
</TABLE>
The Underwriters have advised the Company and the Trust that they propose
to offer the Preferred Securities in part directly to the public at the price to
the public, as set forth on the cover page of this Prospectus Supplement, and in
part to certain securities dealers at such price less a concession not in excess
of $ per Preferred Security. The Underwriters may allow, and such dealers may
reallow, a concession not in excess of $ per Preferred Security to certain
other dealers. After the Preferred Securities are released for sale to the
public, the offering price and other selling terms may from time to time be
varied by the Underwriters.
The Preferred Securities are expected to be approved for listing on the
NYSE, subject to official notice of issuance. Trading of the Preferred
Securities on the NYSE is expected to commence within a 30-day period after the
initial delivery of the Preferred Securities. The Representative has advised the
Company and the Trust that it intends to make a market in the Preferred
Securities prior to the commencement of trading on the NYSE. The Representative
will have no obligation to make a market in the Preferred Securities, however,
and may cease market making activities, if commenced, at any time.
Prior to this offering, there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the Preferred
Securities on the NYSE, the Underwriters will undertake to sell lots of 100 or
more Preferred Securities to a minimum of 400 beneficial holders.
The Company and the Trust have agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the 1933 Act.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, the Company and its affiliates in the
ordinary course of business.
LEGAL OPINIONS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the Company and the Trust by
Richards, Layton & Finger, Wilmington, Delaware, special Delaware counsel to the
Company and the Trust. The validity of the Series Junior Subordinated Notes,
the Guarantee and certain matters relating thereto, as well as certain matters
relating to United States federal income tax considerations, will be passed upon
on behalf of the Company by Troutman Sanders LLP, Atlanta, Georgia. Certain
legal matters will be passed upon for the Underwriters by Dewey Ballantine, New
York, New York.
S-25
<PAGE>
GLOSSARY
1933 Act................... The Securities Act of 1933, as amended.
1934 Act................... The Securities Exchange Act of 1934, as amended.
1939 Act................... The Trust Indenture Act of 1939, as amended.
1940 Act................... The Investment Company Act of 1940, as amended.
Additional Interest........ Amounts payable by the Company as defined under
"Description of the Junior Subordinated
Notes -- Additional Interest" in the accompanying
Prospectus.
Administrative Trustees.... Judy M. Anderson and Wayne Boston.
Agreement as to Expenses
and Liabilities............ The agreement between the Company and the Trust
pursuant to which the Company has agreed to pay all
indebtedness, expenses or liabilities of the Trust,
other than the Trust's obligations to pay to the
holders of the Preferred Securities the amounts due
such holders pursuant to the terms thereof.
Code....................... The Internal Revenue Code of 1986, as amended.
Common Securities.......... The Trust Securities being sold to the Company.
Company.................... Georgia Power Company
Delaware Trustee........... Chemical Bank Delaware
DTC........................ The Depository Trust Company, a "clearing
corporation" that initially will hold (through its
agents) a global certificate evidencing the
Preferred Securities.
Distribution Dates......... of
each year.
Event of Default........... As described under "Description of the Junior
Subordinated Notes -- Events of Default" in the
accompanying Prospectus.
Extension Period........... Any period during which interest is not paid on the
Series Junior Subordinated Notes (and,
consequently, on the Preferred Securities) at the
election of the Company to the extent permitted
under the terms of the Series Junior
Subordinated Notes.
Guarantee.................. The guarantee by the Company of the payments by the
Trust on the Preferred Securities from funds
available in the Trust.
Guarantee Payments......... Payments required to be made pursuant to the
Guarantee as described in "Description of the
Guarantees -- General" in the accompanying
Prospectus.
Guarantee Trustee.......... The trustee under the Guarantee; initially,
Chemical Bank.
Indenture Trustee.......... The trustee under the Subordinated Note Indenture;
initially, Chemical Bank.
Issue Date................. The date set forth on the cover page on which the
Series Junior Subordinated Notes and Preferred
Securities are scheduled to be issued.
Investment Company
Act Event................ An event of the type described in "Description of
the Preferred Securities -- Special Event
Redemption or Distribution."
S-26
<PAGE>
NYSE....................... New York Stock Exchange.
Preferred Securities....... The Trust Securities being offered to investors
pursuant to this Prospectus Supplement and the
accompanying Prospectus.
Property Trustee........... A trustee under the Trust designated to hold the
trust property; initially Chemical Bank.
Record Date................ The close of business on the 15th calendar day
prior to a Distribution Date.
Redemption Price........... The stated liquidation amount of $25 per Preferred
Security, plus accrued and unpaid distributions
thereon (and interest thereon) to the date of
payment.
Securities Rate............ The per annum interest rate expressed as a
percentage of the stated liquidation amount of $25
per Preferred Security, and set forth on the cover
page of this Prospectus Supplement.
Securities Trustees........ The Property Trustee, Administrative Trustees and
Delaware Trustee.
Senior Indebtedness........ Indebtedness of the Company described hereunder
under "Description of the Junior Subordinated
Notes -- Subordination" in the accompanying
Prospectus.
Series Junior
Subordinated Notes......... The Series % junior subordinated deferrable
interest notes of the Company due
.
Southern Company........... The Southern Company, the parent of the Company.
Special Event.............. A Tax Event or Investment Company Act Event.
Subordinated Note
Indenture.................. The indenture pursuant to which the Company's
Series Junior Subordinated Notes will be issued.
Tax Event.................. An event of the type described in "Description of
the Preferred Securities -- Special Event
Redemption or Distribution."
Trust...................... Georgia Power Capital Trust [ ], a Delaware
business trust that will issue the Trust
Securities.
Trust Agreement............ The agreement pursuant to which the Trust is
organized as it may be amended and restated from
time to time.
Trust Agreement Event of
Default.................. As described under "Description of the Preferred
Securities -- Events of Default."
Trust Securities........... The Preferred Securities and the Common Securities.
S-27
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 14, 1996
PROSPECTUS
$400,000,000
GEORGIA POWER CAPITAL TRUST I
GEORGIA POWER CAPITAL TRUST II
GEORGIA POWER CAPITAL TRUST III
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
GEORGIA POWER COMPANY
A SUBSIDIARY OF THE SOUTHERN COMPANY
---------------------------
Georgia Power Capital Trust I, Georgia Power Capital Trust II and Georgia
Power Capital Trust III, each a statutory business trust formed under the laws
of the State of Delaware (individually, a "Trust" and collectively, the
"Trusts"), may offer, from time to time, trust preferred securities
(collectively, the "Preferred Securities") representing preferred undivided
beneficial interests in the assets of the respective Trusts. Georgia Power
Company, a Georgia corporation (the "Company"), will own all the common
securities (the "Common Securities" and, together with the Preferred Securities,
the "Trust Securities") of each Trust. The payment of periodic cash
distributions on the Preferred Securities of each Trust and payments on
liquidation or redemption with respect to such Preferred Securities, in each
case to the extent such Trust has funds legally and immediately available
therefor, will be guaranteed by the Company as described herein (individually, a
"Guarantee" and collectively, the "Guarantees"). See "Description of the
Guarantees." The Company's obligations under each Guarantee will be subordinate
and junior in right of payment to all of its other liabilities and will rank
pari passu (equal in priority) with the most senior preferred stock of the
Company. Concurrently with the issuance by a Trust of its Preferred Securities,
such Trust will invest the proceeds thereof and of the Company's purchase of the
Common Securities of such Trust in a related series of junior subordinated
deferrable interest notes (collectively, the "Junior Subordinated Notes") of the
Company with terms corresponding to the terms of such Trust's Preferred
Securities. The Junior Subordinated Notes will be unsecured obligations of the
Company and will be subordinate and junior in right of payment to Senior
Indebtedness (as defined herein) of the Company. Junior Subordinated Notes may
subsequently be distributed pro rata to holders of the Trust Securities of a
Trust in connection with the termination of such Trust upon the occurrence of
certain events as may be described in an accompanying Prospectus Supplement.
Specific terms of the Preferred Securities of any Trust in respect of which
this Prospectus is being delivered will be set forth in an accompanying
Prospectus Supplement with respect to such Preferred Securities, which will
describe, without limitation and where applicable, the following: the specific
designation, number of Preferred Securities, liquidation amount per security,
distribution rate (or the method of determining such rate), dates on which
distributions will be payable, voting rights, any redemption, exchange or
sinking fund provisions, and any other rights, preferences, privileges,
limitations and restrictions.
The Preferred Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Preferred Securities shall not exceed
$400,000,000.
The Prospectus Supplement relating to any series of Preferred Securities
will contain information concerning certain United States federal income tax
considerations, if applicable to such Preferred Securities.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The Preferred Securities may be sold directly, through agents, underwriters
or dealers as designated from time to time, or through a combination of such
methods. See "Plan of Distribution." If agents or any underwriters or dealers
are involved in the sale of Preferred Securities in respect of which this
Prospectus is being delivered, the names of such agents, underwriters or dealers
and any applicable commissions or discounts will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Preferred
Securities.
---------------------------
, 1996
<PAGE>
AVAILABLE INFORMATION
The Company and the Trusts have filed with the Securities and Exchange
Commission (the "Commission") a combined registration statement on Form S-3 (the
"Registration Statement," which term encompasses any amendments thereof and
exhibits thereto) under the Securities Act of 1933, as amended (the "1933 Act").
As permitted by the rules and regulations of the Commission, this Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto, to which reference is hereby made.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Commission. Such reports and other
information can be inspected and copied at the public reference facilities of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can also be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. In addition, reports and other material concerning
the Company can be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005, on which Exchange certain of the
Company's securities are listed.
No separate financial statements of any Trust are included herein. The
Company considers that such statements would not be material to holders of the
Preferred Securities because each Trust has no independent operations and exists
for the sole purpose of investing the proceeds of the sale of its Trust
Securities in Junior Subordinated Notes.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission pursuant to the
1934 Act and are incorporated herein by reference and made a part of this
Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996; and
(c) the Company's Current Report on Form 8-K dated February 21, 1996.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of this
Prospectus and prior to the termination of this offering shall be deemed to be
incorporated herein by reference and made a part of this Prospectus from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all documents incorporated herein by reference (other than the
exhibits to such documents unless such exhibits are specifically incorporated by
reference). Such requests should be directed to Judy M. Anderson, Vice President
and Corporate Secretary, Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, telephone: (404) 526-6526.
2
<PAGE>
SELECTED INFORMATION
The following material, which is presented herein solely to furnish limited
introductory information regarding the Company, has been selected from, or is
based upon, the detailed information and financial statements appearing in the
documents incorporated herein by reference or elsewhere in this Prospectus, is
qualified in its entirety by reference thereto and, therefore, should be read
together therewith.
GEORGIA POWER COMPANY
Business......................... Generation, transmission, distribution and
sale of electric energy
Service Area..................... Approximately 57,200 square miles
comprising most of the State of Georgia
Service Area Population (1990
Census).......................... Approximately 6,200,000
Customers at December 31, 1995... 1,712,012
Generating Capacity at December
31, 1995 (kilowatts)............. 14,343,602
Sources of Generation during 1995
(kilowatt-hours)............... Coal (74%), Nuclear (22%), Hydro (3%), Oil
and Gas (1%)
Sources of Generation Estimated
for 1996 (kilowatt-hours)........ Coal (76%), Nuclear (21%), Hydro (2%), Oil
and Gas (1%)
SELECTED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
12 MONTHS
YEAR ENDED DECEMBER 31, ENDED
----------------------------------------------- APRIL 30,
1991(1) 1992 1993 1994(2) 1995(2) 1996(2)
------- ------ ------ ------- ------- ----------
(MILLIONS, EXCEPT RATIOS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues....................... $4,301 $4,297 $4,451 $4,162 $4,405 $4,470
Income Before Interest Charges........... $1,006 $1,003 $1,033 $925 $957 $935
Net Income After Dividends on Preferred
Stock.................................. $475 $521 $570 $526 $609 $605
Ratio of Earnings to Fixed Charges(3).... 2.85 3.15 3.46 3.65 4.51 4.72
Ratio of Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-
Income Tax Basis)(4)................... 2.36 2.59 2.88 2.99 3.60 3.73
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
CAPITALIZATION AS OF MARCH
31, 1996
---------------------------
ACTUAL AS ADJUSTED(5)
------ ----------------
(MILLIONS, EXCEPT
PERCENTAGES)
<S> <C> <C> <C>
Common Stock Equity............................................... $4,292 $4,292 51.1%
Cumulative Preferred Stock........................................ 693 293 3.5
Company Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Partnership Holding Company Junior Subordinated
Notes........................................................... 100 100 1.2
Company Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts Holding Company Junior Subordinated
Notes(6)........................................................ -- 400 4.8
Long-Term Debt.................................................... 3,319 3,319 39.4
------ ------ -----
Total, excluding amounts due within one year of $474 million.... $8,404 $8,404 100.0%
====== ====== =====
</TABLE>
- ---------------
(1) "Income Before Interest Charges" and "Net Income After Dividends on
Preferred Stock" for the year ended December 31, 1991 reflect (i) an
increase of approximately $89,000,000 as the result of the consummation of
a settlement with Gulf States Utilities Company of litigation arising out
of certain power sales contracts and (ii) a charge of approximately
$33,000,000 after taxes relating to benefits provided pursuant to a
voluntary work force reduction program announced in late 1991.
(2) See "Recent Results of Operations" herein. "Income Before Interest Charges"
and "Net Income After Dividends on Preferred Stock" for the years ended
December 31, 1994 and 1995, and the twelve months ended April 30, 1996,
reflect charges of approximately $55,000,000, $8,000,000 and $20,000,000,
respectively, after taxes relating to benefits provided pursuant to work
force reduction programs.
(3) This ratio is computed as follows: (i) "Earnings" have been calculated by
adding to "Income Before Interest Charges" all income taxes deducted
therefrom and the debt portion of allowance for funds used during
construction; and (ii) "Fixed Charges" consist of "Net Interest Charges"
plus the debt portion of allowance for funds used during construction.
(4) In computing this ratio, "Preferred Dividend Requirements" represent the
before tax earnings necessary to pay such dividends, computed at the
effective tax rates for the applicable periods.
(5) Reflects the issuance of the Preferred Securities and Junior Subordinated
Notes, and assumes application of the proceeds of the Preferred Securities
to the redemption of $400,000,000 of outstanding preferred stock of the
Company.
(6) As described in this Prospectus, substantially all of the assets of the
respective Trusts will be Junior Subordinated Notes of the Company with an
aggregate principal amount not exceeding $412,400,000, and upon redemption
of such debt, the related Preferred Securities will be mandatorily
redeemable.
GEORGIA POWER COMPANY
The Company is a wholly-owned subsidiary of The Southern Company, a holding
company registered under the Public Utility Holding Company Act of 1935, as
amended. The Company was incorporated under the laws of the State of Georgia on
June 26, 1930. It is engaged in the generation and purchase of electric energy
and the transmission, distribution and sale of such energy within the State of
Georgia at retail in over 600 communities (including Athens, Atlanta, Augusta,
Columbus, Macon, Rome and Valdosta), as well as in rural areas, and at wholesale
currently to 39 electric cooperative associations through Oglethorpe Power
Corporation, a corporate cooperative of electric membership corporations in
Georgia, and to 50 municipalities, 48 of which are served through the Municipal
Electric Authority of Georgia, a public corporation and an instrumentality of
the State of Georgia. The Company and one of its affiliates, Alabama Power
Company, each owns 50% of the common stock of Southern Electric Generating
Company ("SEGCO"). SEGCO owns electric generating units near Wilsonville,
Alabama. The principal executive offices of the Company are located at 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308, and the telephone number is (404)
526-6526.
4
<PAGE>
THE TRUSTS
Each Trust is a statutory business trust formed under Delaware law pursuant
to the filing of a certificate of trust with the Delaware Secretary of State on
June 13, 1996. Each Trust's business is defined in a trust agreement, executed
by the Company, as Depositor, and the Delaware Trustee thereunder. This trust
agreement of each Trust will be amended and restated in its entirety
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part (the "Trust Agreement"). Each Trust exists
for the exclusive purposes of (i) issuing its Trust Securities representing
undivided beneficial interests in the assets of such Trust, (ii) investing the
gross proceeds of its Trust Securities in a related series of Junior
Subordinated Notes, and (iii) engaging in only those other activities necessary,
appropriate, convenient or incidental thereto.
The principal place of business of each Trust shall be c/o the Company, 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308, telephone (404) 526-6526, Attn:
Corporate Secretary.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of a Trust for further information concerning such Trust.
USE OF PROCEEDS
Each Trust will invest the proceeds received from the sale of its Preferred
Securities in Junior Subordinated Notes. Except as may be otherwise described in
an applicable Prospectus Supplement, the net proceeds received by the Company
from such investment will be used for general corporate purposes, which may
include the redemption or repurchase of its securities.
RECENT RESULTS OF OPERATIONS
For the twelve months ended April 30, 1996, "Operating Revenues", "Income
Before Interest Charges", and "Net Income After Dividends on Preferred Stock"
were $4,470,000,000, $935,000,000 and $605,000,000, respectively. In the opinion
of the management of the Company, the above amounts for the twelve months ended
April 30, 1996 reflect all adjustments (which were only normal recurring
adjustments) necessary to present fairly the results of operations for such
period, subject to the effect of such adjustments, if any, as might have been
required had the outcome of the uncertainty with respect to the actions of the
regulators regarding the recoverability of the Company's investment in the Rocky
Mountain hydoelectric project been known. The "Ratio of Earnings to Fixed
Charges" and the "Ratio of Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis)" for the twelve months ended April 30, 1996
were 4.72 and 3.73, respectively.
For information regarding the uncertainty referred to in the preceding
paragraph, reference is made to "Item 1 -- Business -- Construction Programs" in
the Company's Annual Report on Form 10-K for the year ended December 31, 1995,
incorporated herein by reference.
DESCRIPTION OF THE PREFERRED SECURITIES
Each Trust may issue only one series of Preferred Securities having terms
described in the Prospectus Supplement relating thereto. The Trust Agreement of
each Trust will authorize the Administrative Trustees, on behalf of the Trust,
to issue the Preferred Securities of such Trust. The Preferred Securities of
each Trust will have such terms, including distributions, redemption, voting,
liquidation rights and such other preferred, deferral or other special rights or
such restrictions as shall be set forth in the Trust Agreement of such Trust.
Reference is made to the Prospectus Supplement relating to the Preferred
Securities of a Trust for specific terms, including (i) the distinctive
designation of such Preferred Securities; (ii) the number of Preferred
Securities issued by such Trust; (iii) the annual distribution rate (or method
of determining such rate) for Preferred Securities of such Trust and the date or
dates on which such distributions shall be payable; (iv) whether distributions
on such Preferred Securities shall be cumulative and, in the case of Preferred
Securities having cumulative distribution rights, the date or dates, or method
of determining the date or dates,
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from which distributions on such Preferred Securities shall be cumulative; (v)
the amount or amounts that shall be paid out of the assets of such Trust to the
holders of the Preferred Securities of such Trust upon voluntary or involuntary
dissolution, winding up or termination of such Trust; (vi) the obligation, if
any, of such Trust to purchase or redeem such Preferred Securities and the price
or prices at which, the period or periods within which, and the terms and
conditions upon which such Preferred Securities shall be purchased or redeemed,
in whole or in part, pursuant to such obligation; (vii) the voting rights, if
any, of such Preferred Securities in addition to those required by law,
including the number of votes per Preferred Security and any requirement for the
approval by the holders of Preferred Securities as a condition to specified
action or amendments to the Trust Agreement of such Trust; (viii) the rights, if
any, to defer distributions on the Preferred Securities by extending the
interest payment period on the related Junior Subordinated Notes; and (ix) any
other relative rights, preferences, privileges, limitations or restrictions of
such Preferred Securities not inconsistent with the Trust Agreement of such
Trust or applicable law. All Preferred Securities offered hereby will be
guaranteed by the Company to the extent set forth under "Description of the
Guarantees." Any material United States federal income tax considerations
applicable to an offering of Preferred Securities will be described in the
Prospectus Supplement relating thereto.
DESCRIPTION OF THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees that
will be executed and delivered by the Company for the benefit of the holders of
Preferred Securities of the respective Trusts from time to time. Each Guarantee
will be qualified as an indenture under the 1939 Act. Chemical Bank will act as
indenture trustee under each Guarantee (the "Guarantee Trustee") for purposes of
the 1939 Act. The terms of the respective Guarantees will be those set forth
therein and those made part thereof by the 1939 Act. The following summary does
not purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the Guarantees, the form of
which is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, and the 1939 Act. Each Guarantee will be held by the
Guarantee Trustee for the benefit of holders of the Preferred Securities to
which it relates.
GENERAL
Pursuant to each Guarantee, the Company will irrevocably and
unconditionally agree, to the extent set forth therein, to pay in full, to the
holders of the related Preferred Securities, the Guarantee Payments (as defined
herein), to the extent not paid by, or on behalf of, the related Trust,
regardless of any defense, right of set-off or counterclaim that the Company may
have or assert against any person. The following payments or distributions with
respect to the Preferred Securities of any Trust to the extent not paid or made
by, or on behalf of, such Trust will be subject to the Guarantee related thereto
(without duplication): (i) any accrued and unpaid distributions required to be
paid on the Preferred Securities of such Trust but if and only if and to the
extent that such Trust has funds legally and immediately available therefor,
(ii) the redemption price, including all accrued and unpaid distributions to the
date of redemption (the "Redemption Price"), with respect to any Preferred
Securities called for redemption by such Trust, but if and only to the extent
such Trust has funds legally and immediately available therefor, and (iii) upon
a dissolution, winding-up or termination of such Trust (other than in connection
with the distribution of Junior Subordinated Notes to the holders of Trust
Securities of such Trust or the redemption of all of the Preferred Securities of
such Trust), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on the Preferred Securities of such Trust to
the date of payment, to the extent such Trust has funds legally and immediately
available therefor, and (b) the amount of assets of such Trust remaining
available for distribution to holders of Preferred Securities of such Trust in
liquidation of such Trust (the "Guarantee Payments"). The Company's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of the related Preferred Securities or by
causing the related Trust to pay such amounts to such holders.
Each Guarantee will be a full and unconditional guarantee of the Guarantee
Payments with respect to the related Preferred Securities from the time of
issuance of such Preferred Securities, but will not apply to the payment of
distributions and other payments on such Preferred Securities when the related
Trust does not
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have sufficient funds legally and immediately available to make such
distributions or other payments. IF THE COMPANY DOES NOT MAKE INTEREST PAYMENTS
ON THE JUNIOR SUBORDINATED NOTES HELD BY THE PROPERTY TRUSTEE UNDER ANY TRUST,
SUCH TRUST WILL NOT MAKE DISTRIBUTIONS ON ITS PREFERRED SECURITIES.
SUBORDINATION
The Company's obligations under each Guarantee to make the Guarantee
Payments will constitute an unsecured obligation of the Company and will rank
(i) subordinate and junior in right of payment to all other liabilities of the
Company, 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
Company and with any guarantee now or hereafter entered into by the Company in
respect of any preferred or preference securities of any affiliate of the
Company, and (iii) senior to all common stock of the Company. The terms of the
Preferred Securities will provide that each holder of Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
Guarantee related thereto. The Company has outstanding preferred stock that
ranks pari passu to the Guarantees and common stock that ranks junior to the
Guarantees. See "Selected Information -- Selected Financial Information."
Each Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly against
the guarantor to enforce its rights under the guarantee without first
instituting a legal proceeding against any other person or entity).
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially and adversely
affect the rights of holders of the related Preferred Securities (in which case
no consent will be required), each Guarantee may be amended only with the prior
approval of the holders of not less than 66 2/3% in liquidation amount of such
outstanding Preferred Securities. The manner of obtaining any such approval of
holders of the Preferred Securities will be as set forth in an accompanying
Prospectus Supplement. All guarantees and agreements contained in each Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Company and shall inure to the benefit of the holders of the related
Preferred Securities then outstanding.
TERMINATION
Each Guarantee will terminate and be of no further force and effect as to
the related Preferred Securities upon full payment of the Redemption Price of
all such Preferred Securities, upon distribution of Junior Subordinated Notes to
the holders of such Preferred Securities, or upon full payment of the amounts
payable upon liquidation of the related Trust. Each Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any sums paid
with respect to such Preferred Securities or under such Guarantee.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure by the
Company to perform any of its payment obligations thereunder. The holders of a
majority in liquidation amount of the Preferred Securities to which any
Guarantee relates have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of such Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under such Guarantee. If the Guarantee
Trustee fails to enforce any Guarantee, any holder of the related Preferred
Securities may institute a legal proceeding directly against the Company to
enforce its rights under such Guarantee without first instituting a legal
proceeding against the Guarantee Trustee or any other person or entity. The
holders of a majority in liquidation amount of Preferred Securities of any
series may, by vote, on behalf of the holders of all the Preferred Securities of
such series, waive any past event of default and its consequences.
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INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of any event of default with
respect to any Guarantee and after the curing or waiving of all events of
default with respect to such Guarantee, undertakes to perform only such duties
as are specifically set forth in such Guarantee and, in case an event of default
has occurred, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by any Guarantee at the request of any holder of the related
Preferred Securities, unless offered reasonable indemnity against the costs,
expenses and liabilities which might be incurred thereby.
Chemical Bank, the Guarantee Trustee, also serves as Property Trustee and
as Indenture Trustee. The Company and certain of its affiliates maintain deposit
accounts and banking relationships with Chemical Bank. Chemical Bank serves as
trustee under the Company's First Mortgage Bond Indenture and under another
indenture pursuant to which first mortgage bonds of an affiliate of the Company
are outstanding.
GOVERNING LAW
Each Guarantee will be governed by, and construed in accordance with, the
internal laws of the State of New York.
DESCRIPTION OF THE JUNIOR SUBORDINATED NOTES
Set forth below is a description of the general terms of the Junior
Subordinated Notes. The following description does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Subordinated Note Indenture, dated as of , 1996, between the Company
and Chemical Bank, as trustee (the "Indenture Trustee"), as to be supplemented
by a supplemental indenture thereto establishing the Junior Subordinated Notes
of each series (the Subordinated Note Indenture, as so supplemented, is
hereinafter referred to as the "Subordinated Note Indenture"), the forms of
which are filed as exhibits to the Registration Statement of which this
Prospectus forms a part. The terms of the Junior Subordinated Notes will include
those stated in the Subordinated Note Indenture and those made a part of the
Subordinated Note Indenture by reference to the 1939 Act. Certain capitalized
terms used herein are defined in the Subordinated Note Indenture.
GENERAL
The Junior Subordinated Notes will be issued as unsecured junior
subordinated debt securities under the Subordinated Note Indenture. The
Subordinated Note Indenture does not limit the aggregate principal amount of
Junior Subordinated Notes that may be issued thereunder and provides that Junior
Subordinated Notes may be issued from time to time in one or more series
pursuant to an indenture supplemental to the Subordinated Note Indenture.
Reference is made to the Prospectus Supplement that will accompany this
Prospectus for the following terms of the series of Junior Subordinated Notes
relating to the Preferred Securities being offered thereby: (i) the title of
such Junior Subordinated Notes; (ii) any limit on the aggregate principal amount
of such Junior Subordinated Notes; (iii) the date or dates on which the
principal of such Junior Subordinated Notes is payable; (iv) the rate or rates
at which such Junior Subordinated Notes shall bear interest, if any, or any
method by which such rate or rates will be determined, the date or dates from
which such interest will accrue, the interest payment dates on which such
interest shall be payable, and the regular record date for the interest payable
on any interest payment date; (v) the place or places where the principal of
(and premium, if any) and interest, if any, on such Junior Subordinated Notes
shall be payable; (vi) the period or periods within which, the price or prices
at which and the terms and conditions on which such Junior Subordinated Notes
may be redeemed, in whole or in part, at the option of the Company; (vii) the
obligation, if any, of the Company to redeem or purchase such Junior
Subordinated Notes; (viii) the denominations in which such Junior Subordinated
Notes shall be issuable; (ix) if other than the principal amount thereof, the
portion of the principal amount of such Junior Subordinated Notes which shall be
payable upon declaration of acceleration
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of the maturity thereof; (x) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company as provided in the
Subordinated Note Indenture pertaining to such Junior Subordinated Notes; (xi)
whether such Junior Subordinated Notes shall be issued in whole or in part in
the form of a Global Security; (xii) the right, if any, of the Company to extend
the interest payment periods of such Junior Subordinated Notes; and (xiii) any
other terms of such Junior Subordinated Notes.
The Subordinated Note Indenture does not contain provisions that afford
holders of Junior Subordinated Notes protection in the event of a highly
leveraged transaction involving the Company.
SUBORDINATION
The Junior Subordinated Notes are subordinated and junior in right of
payment to all Senior Indebtedness (as defined below) of the Company. No payment
of principal of (including redemption payments, if any), or premium, if any, or
interest on (including Additional Interest (as defined herein)) the Junior
Subordinated Notes may be made if (a) any Senior Indebtedness is not paid when
due and any applicable grace period with respect to such default has ended with
such default not being cured or waived or otherwise ceasing to exist, or (b) the
maturity of any Senior Indebtedness has been accelerated because of a default,
or (c) notice has been given of the exercise of an option to require repayment,
mandatory payment or prepayment or otherwise. 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, the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness before the holders of the Junior Subordinated Notes are
entitled to receive or retain any payment or distribution. Subject to the prior
payment of all Senior Indebtedness, the rights of the holders of the Junior
Subordinated Notes will be subrogated to the rights of the holders of Senior
Indebtedness to receive payments and distributions applicable to such Senior
Indebtedness until all amounts owing on the Junior Subordinated Notes are paid
in full.
The term "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 the 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 that, 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 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
Senior Indebtedness and be entitled to the benefits of the subordination
provisions contained in the Subordinated Note Indenture irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
The Subordinated Note Indenture does not limit the aggregate amount of
Senior Indebtedness that may be issued by the Company. As of March 31, 1996,
Senior Indebtedness of the Company aggregated approximately $3,800,000,000.
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ADDITIONAL INTEREST
"Additional Interest" is defined in the Subordinated Note Indenture as (i)
such additional amounts as may be required so that the net amounts received and
retained by a holder of Junior Subordinated Notes (if the holder is a 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 , on each interest payment date.
CERTAIN COVENANTS
The Company covenants in the Subordinated Note Indenture, for the benefit
of the holders of each series of Junior Subordinated Notes, that, (i) 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, (ii) 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 Trust Securities, if any, related to such series of Junior Subordinated
Notes, or (iii) if at such time an Event of Default thereunder with respect to
such series of Junior Subordinated Notes shall have occurred and be continuing,
(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 other than the Guarantees)
issued by the Company which rank pari passu with or junior to the Junior
Subordinated Notes. None of the foregoing, however, shall 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, or (ii) 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 Subordinated Note Indenture further provides that, for so long as the
Trust Securities of any Trust remain outstanding, the Company covenants (i) to
directly or indirectly maintain 100% ownership of the Common Securities of such
Trust; provided, however, that any permitted successor of the Company under the
Subordinated Note Indenture may succeed to the Company's ownership of such
Common Securities, and (ii) to use its reasonable efforts to cause such 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 such Trust, the redemption of all of the Trust Securities of such
Trust, or certain mergers, consolidations or amalgamations, each as permitted by
the related Trust Agreement, and (b) to otherwise continue to be classified as a
grantor trust for United States federal income tax purposes.
EVENTS OF DEFAULT
The Subordinated Note Indenture provides that any one or more of the
following described events with respect to the Junior Subordinated Notes of any
series, which has occurred and is continuing, constitutes an "Event of Default"
with respect to the Junior Subordinated Notes of such series:
(a) failure for 10 days to pay interest on the Junior Subordinated
Notes of such series, including any Additional Interest (as defined in
clause (ii) of the definition thereof in the Subordinated Note Indenture)
in respect thereof, when due on an Interest Payment Date other than at
maturity or upon earlier redemption; provided, however, that a valid
extension of the interest payment period by the Company shall not
constitute a default in the payment of interest for this purpose; or
(b) failure for 10 days to pay Additional Interest (as defined in
clause (i) of the definition thereof in the Subordinated Note Indenture);
or
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(c) failure to pay principal or premium, if any, or interest,
including Additional Interest (as defined in clause (ii) of the definition
thereof in the Subordinated Note Indenture), on the Junior Subordinated
Notes of such series when due at maturity or upon earlier redemption; or
(d) failure for three Business Days to deposit any sinking fund
payment when due by the terms of a Junior Subordinated Note of such series;
or
(e) failure to observe or perform any other covenant or warranty of
the Company in the Subordinated Note Indenture (other than a covenant or
warranty which has expressly been included therein solely for the benefit
of one or more series of Junior Subordinated Notes other than such series)
for 90 days after written notice to the Company from the Indenture Trustee
or the holders of at least 25% in principal amount of the outstanding
Junior Subordinated Notes of such series; or
(f) certain events of bankruptcy, insolvency, or reorganization of the
Company.
The holders of not less than a majority in aggregate outstanding principal
amount of the Junior Subordinated Notes of any series have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Indenture Trustee with respect to the Junior Subordinated Notes of such
series. If a Subordinated Note Indenture Event of Default occurs and is
continuing with respect to the Junior Subordinated Notes of any series, then the
Indenture Trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the Junior Subordinated Notes of such series may declare the
principal amount thereof due and payable immediately by notice in writing to the
Company (and to the Indenture Trustee if given by the holders), and upon any
such declaration such principal amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to the Junior
Subordinated Notes of any series has been made and before a judgment or decree
for payment of the money due has been obtained as provided in Article Five of
the Subordinated Note Indenture, the holders of not less than a majority in
aggregate outstanding principal amount of the Junior Subordinated Notes of such
series may rescind and annul such declaration and its consequences if the
default has been cured or waived and the Company has paid or deposited with the
Indenture Trustee a sum sufficient to pay all matured installments of interest
(including any Additional Interest) and principal due otherwise than by
acceleration and all sums paid or advanced by the Indenture Trustee, including
reasonable compensation and expenses of the Indenture Trustee.
The holders of not less than a majority in aggregate outstanding principal
amount of the Junior Subordinated Notes of any series may, on behalf of the
holders of all the Junior Subordinated Notes of such series, waive any past
default with respect to such series, except (i) a default in the payment of
principal or interest or (ii) a default in respect of a covenant or provision
which under Article Nine of the Subordinated Note Indenture cannot be modified
or amended thereunder without the consent of the holder of each outstanding
Junior Subordinated Note of such series affected thereby.
REGISTRATION AND TRANSFER
The Company shall not be required to (i) issue, register the transfer of or
exchange Junior Subordinated Notes of any series during a period of 15 days
immediately preceding the date notice is given identifying the Junior
Subordinated Notes of such series called for redemption, or (ii) register the
transfer of or 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.
PAYMENT AND PAYING AGENT
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of any Junior Subordinated Notes will be made only against
surrender to the Paying Agent of such Junior Subordinated Notes. Principal of
and interest on Junior Subordinated Notes will be payable, subject to any
applicable laws and regulations, at the office of such Paying Agent or Paying
Agents as the Company may designate from time to time, except that, at the
option of the Company, payment of any interest may be made by wire transfer or
by check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register with respect to the Junior Subordinated
Notes. Payment of interest on Junior Subordinated Notes on any
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interest payment date will be made to the person in whose name the Junior
Subordinated Notes (or predecessor security) are registered at the close of
business on the Record Date for such interest payment (the fifteenth calendar
day before such interest payment date).
The Indenture Trustee will act as Paying Agent with respect to the Junior
Subordinated Notes. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agents or approve a change in
the office through which any Paying Agent acts.
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or interest on the Junior Subordinated Notes of any series which
remain unclaimed at the end of two years after such principal or interest shall
have become due and payable will be repaid to the Company, and the holder of
such Junior Subordinated Notes will thereafter look only to the Company for
payment thereof.
MODIFICATION
The Subordinated Note Indenture contains provisions permitting the Company
and the Indenture Trustee, 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 thereby, to modify the Subordinated Note Indenture or the
rights of the holders of the Junior Subordinated Note of such series; provided,
that no such modification may, without the consent of the holder of each
outstanding Junior Subordinated Note affected thereby, (i) 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 (ii) reduce the percentage of 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 the Subordinated Note Indenture or certain defaults thereunder and
their consequences) provided for in the Subordinated Note Indenture, or (iii)
modify any of the provisions of the Subordinated Note Indenture relating to
supplemental indentures, waiver of past defaults, or waiver of certain
covenants, except to increase any such percentage or to provide that certain
other provisions of the Subordinated Note Indenture cannot be modified or waived
without the consent of the holder of each outstanding Junior Subordinated Note
affected thereby, or (iv) modify the provisions of the Subordinated Note
Indenture with respect to the subordination of the Junior Subordinated Notes in
a manner adverse to such holder.
In addition, the Company and the Indenture Trustee may execute, without the
consent of any holders of Junior Subordinated Notes, any supplemental indenture
for certain other usual purposes, including the creation of any new series of
junior subordinated notes.
CONSOLIDATION, MERGER AND SALE
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) such other corporation or person is a
corporation organized and existing under the laws of the United States, any
state thereof or the District of Columbia and such other corporation or person
expressly assumes, by supplemental indenture executed and delivered to the
Indenture Trustee, the 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 the Subordinated Note 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 Indenture
Trustee an officers' certificate and an opinion of counsel, each stating that
such transaction complies with the provisions of the Subordinated Note Indenture
governing consolidation, merger, conveyance, transfer or lease and that all
conditions precedent thereto have been complied with.
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INFORMATION CONCERNING THE INDENTURE TRUSTEE
The Indenture Trustee, prior to an Event of Default with respect to Junior
Subordinated Notes of any series, undertakes to perform, with respect to Junior
Subordinated Notes of such series, only such duties as are specifically set
forth in the Subordinated Note Indenture and, in case an Event of Default with
respect to Junior Subordinated Notes of any series has occurred and is
continuing, shall exercise, with respect to Junior Subordinated Notes of such
series, the same degree of care as a prudent individual would exercise in the
conduct of his or her own affairs. Subject to such provision, the Indenture
Trustee is under no obligation to exercise any of the powers vested in it by the
Subordinated Note Indenture at the request of any holder of Junior Subordinated
Notes of any series, unless offered reasonable indemnity by such holder against
the costs, expenses and liabilities which might be incurred thereby. The
Indenture Trustee is not required to expend or risk its own funds or otherwise
incur any financial liability in the performance of its duties if the Indenture
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
Chemical Bank, the Indenture Trustee, also serves as Property Trustee and
as Guarantee Trustee. The Company and certain of its affiliates maintain deposit
accounts and banking relationships with Chemical Bank. Chemical Bank also serves
as trustee under the Company's First Mortgage Bond Indenture and under another
indenture pursuant to which first mortgage bonds of an affiliate of the Company
are outstanding.
GOVERNING LAW
The Subordinated Note Indenture and the Junior Subordinated Notes will be
governed by, and construed in accordance with, the internal laws of the State of
New York.
MISCELLANEOUS
The Company will have the right at all times to assign any of its rights or
obligations under the Subordinated Note Indenture to a direct or indirect
wholly-owned subsidiary of the Company; provided, that, in the event of any such
assignment, the Company will remain primarily liable for all such obligations.
Subject to the foregoing, the Subordinated Note Indenture will be binding upon
and inure to the benefit of the parties thereto and their respective successors
and assigns.
PLAN OF DISTRIBUTION
The Trusts may sell the Preferred Securities being offered hereby in one or
more of the following ways from time to time: (i) to underwriters for resale to
the public or to institutional investors; (ii) directly to institutional
investors; or (iii) through agents to the public or to institutional investors.
The Prospectus Supplement with respect to each series of Preferred Securities
will set forth the terms of the offering of such Preferred Securities, including
the name or names of any underwriters or agents, the purchase price of such
Preferred Securities and the proceeds to the applicable Trust from such sale,
any underwriting discounts or agency fees and other items constituting
underwriters' or agents' compensation, any initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchange on which such Preferred Securities may be listed.
If underwriters participate in the sale, such Preferred Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase any series of Preferred Securities will be subject
to certain conditions precedent and the underwriters will be obligated to
purchase all of such series of Preferred Securities, if any are purchased.
Underwriters and agents may be entitled under agreements entered into with
the Company and/or the applicable Trust to indemnification against certain civil
liabilities, including liabilities under the 1933 Act. Underwriters and agents
may engage in transactions with, or perform services for, the Company in the
ordinary course of business.
13
<PAGE>
Each series of Preferred Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Preferred
Securities are sold for public offering and sale may make a market in such
Preferred Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. The Preferred
Securities may or may not be listed on a national securities exchange.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Preferred
Securities will be passed upon on behalf of the Company and the Trust by
Richards, Layton & Finger, Wilmington, Delaware, special Delaware counsel to the
Company and the Trust. The validity of the Junior Subordinated Notes, the
Guarantees and certain matters relating thereto will be passed upon on behalf of
the Company by Troutman Sanders LLP, Atlanta, Georgia. Certain legal matters
will be passed upon for the Underwriters by Dewey Ballantine, New York, New
York.
EXPERTS
The financial statements and schedules of the Company included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1995,
incorporated by reference in this Prospectus, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in accounting and auditing in giving said reports. With
respect to the Company's unaudited interim financial information for the periods
ended March 31, 1996 and 1995, included in the Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1996, and incorporated by reference
herein, Arthur Andersen LLP has applied limited procedures in accordance with
professional standards for review of such information. However, their separate
report thereon states that they did not audit and they do not express an opinion
on such interim financial information. Accordingly, the degree of reliance on
their report on such information should be restricted in light of the limited
nature of the review procedures employed. In addition, the accountants are not
subject to the liability provisions of Section 11 of the 1933 Act for their
report on the unaudited interim financial information because that report is not
a "report" or "part" of the registration statement prepared or certified by the
accountants within the meaning of Sections 7 and 11 of said Act.
Statements as to matters of law and legal conclusions in the Company's
Annual Report on Form 10-K for the year ended December 31, 1995, relating to
titles to property of the Company under "Item 2 -- Properties -- Titles to
Property", and relating to the Company under "Item 1 -- Business -- Regulation",
"Item 1 -- Business -- Rate Matters" and "Item 1 -- Business -- Competition",
have been reviewed by Troutman Sanders LLP, general counsel for the Company, and
such statements are made upon the authority of such firm as experts.
14
<PAGE>
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, GEORGIA POWER CAPITAL TRUST [ ]
OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY OR GEORGIA POWER CAPITAL TRUST [ ] SINCE THE DATE HEREOF. THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
PROSPECTUS SUPPLEMENT
Summary of Offering....................... S-3
Risk Factors.............................. S-6
Georgia Power Capital Trust [ ].......... S-8
Description of the Preferred Securities... S-9
Description of the Series Junior
Subordinated Notes...................... S-18
Relationship Among the Preferred
Securities, the Series Junior
Subordinated Notes and the Guarantee.... S-20
Certain Federal Income Tax
Considerations.......................... S-21
Underwriting.............................. S-25
Legal Opinions............................ S-25
Glossary.................................. S-26
PROSPECTUS
Available Information..................... 2
Incorporation of Certain Documents by
Reference............................... 2
Selected Information...................... 3
Georgia Power Company..................... 4
The Trusts................................ 5
Use of Proceeds........................... 5
Recent Results of Operations.............. 5
Description of the Preferred Securities... 5
Description of the Guarantees............. 6
Description of the Junior Subordinated
Notes................................... 8
Plan of Distribution...................... 13
Legal Matters............................. 14
Experts................................... 14
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
PREFERRED SECURITIES
GEORGIA POWER
CAPITAL TRUST [ ]
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT
$25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET
FORTH HEREIN BY
GEORGIA POWER
COMPANY
------------------------------------------------
PROSPECTUS SUPPLEMENT
, 1996
------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of issuance and distribution, other than
underwriting discounts and commissions, to be borne by the Company are as
follows:
<TABLE>
<CAPTION>
PREFERRED SECURITIES
-----------------------
EACH
INITIAL ADDITIONAL
SALE SALE
-------- ----------
<S> <C> <C>
*Filing Fees -- Securities and Exchange
Commission -- registration statement......................... $137,932 $ --
Charges of trustees (including counsel)........................ ** **
*Listing fees of New York Stock Exchange....................... ** **
Printing and preparation of registration statement, prospectus,
etc.......................................................... ** **
Rating fees --
Moody's Investors Service, Inc............................... ** **
Standard & Poor's Corporation................................ ** **
Duff and Phelps, Inc......................................... ** **
Services of Southern Company Services, Inc..................... ** **
Fees and expenses of counsel................................... ** **
Blue sky fees and expenses..................................... ** **
Fees of accountants, Arthur Andersen LLP....................... ** **
Miscellaneous, including telephone charges and traveling
expenses..................................................... ** **
-------- ----------
Total................................................ $ $
======== =======
</TABLE>
- ---------------
* The Prospectus Supplement will reflect actual filing and listing fees based
upon the amount of the related offering.
** To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The applicable statutes of the State of Georgia provide that a corporation
may indemnify or obligate itself to indemnify an individual made a party to a
proceeding because he is or was a director of the corporation or is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan, or another enterprise against
liability incurred in the proceeding if he acted in a manner he believed in good
faith to be in or not opposed to the best interest of the corporation and, in
the case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. However, a corporation generally may not indemnify a
director in connection with a proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation, or in connection
with any other proceeding in which he was adjudged liable on the basis that
personal benefit was improperly received by him. In addition, unless limited by
its articles of incorporation, to the extent that a director has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he was a party, or in defense of any claim, issue or matter therein,
because he is or was a director of the corporation, the corporation shall
indemnify the director against reasonable expenses incurred by him in connection
therewith. Also, unless a corporation's articles of incorporation provide
otherwise, an officer of the corporation who is not a director is entitled to
mandatory indemnification to the same extent as a director, and a corporation
may also indemnify an officer, employee or agent who is not a director to the
extent, consistent with public policy, that may be provided by its articles of
incorporation, by-laws, general or specific action of its board of directors, or
contract.
II-1
<PAGE>
Section 41 of the By-laws of the Company provides in pertinent part as
follows:
Each person who is or was a director or officer of the Company or is
or was an employee of the Company holding one or more positions of
management through and inclusive of department managers (but not positions
below the level of department managers) (such positions being hereinafter
referred to as "Management Positions") and who was or is a party or was or
is threatened to be made a party to any threatened, pending or completed
claim, action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was a director or
officer of the Company or is or was an employee of the Company holding one
or more Management Positions, or is or was serving at the request of the
Company as a director, officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall be indemnified by the Company as a matter of right
against any and all expenses (including attorneys' fees) actually and
reasonably incurred by him and against any and all claims, judgments,
fines, penalties, liabilities and amounts paid in settlement actually
incurred by him in defense of such claim, action, suit or proceeding,
including appeals, to the full extent permitted by applicable law. The
indemnification provided by this Section shall inure to the benefit of the
heirs, executors and administrators of such person.
Expenses (including attorneys' fees) incurred by a director or officer
of the Company or employee of the Company holding one or more Management
Positions with respect to the defense of any such claim, action, suit or
proceeding may be advanced by the Company prior to the final disposition of
such claim, action, suit or proceeding, as authorized by the Board of
Directors in the specific case, upon receipt of an undertaking by or on
behalf of such person to repay such amount unless it shall ultimately be
determined that such person is entitled to be indemnified by the Company
under this Section or otherwise; provided, however, that the advancement of
such expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be
indemnified by the Company.
The Company may purchase and maintain insurance at the expense of the
Company on behalf of any person who is or was a director, officer,
employee, or agent of the Company, or any person who is or was serving at
the request of the Company as director (or the equivalent), officer,
employee, agent or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any
liability or expense (including attorneys' fees) asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against
such liability or expense under this Section or otherwise.
Without limiting the generality of the foregoing provisions, no
present or future director or officer of the Company, or his heirs,
executors, or administrators, shall be liable for any act, omission, step,
or conduct taken or had in good faith, which is required, authorized, or
approved by any order or orders issued pursuant to the Public Utility
Holding Company Act of 1935, the Federal Power Act, or any federal or state
statute or municipal ordinance regulating the Company or its parent by
reason of their being holding or investment companies, public utility
companies, public utility holding companies, or subsidiaries of public
utility holding companies. In any action, suit, or proceeding based on any
act, omission, step, or conduct, as in this paragraph described, the
provisions hereof shall be brought to the attention of the court. In the
event that the foregoing provisions of this paragraph are found by the
court not to constitute a valid defense on the grounds of not being
applicable to the particular class of plaintiff, each such director and
officer, and his heirs, executors and administrators, shall be reimbursed
for, or indemnified against, all expenses and liabilities incurred by him
or imposed on him, in connection with, or arising out of, any such action,
suit, or proceeding based on any act, omission, step, or conduct taken or
had in good faith as in this paragraph described. Such expenses and
liabilities shall include, but shall not be limited to, judgments, court
costs, and attorneys' fees.
The foregoing rights shall not be exclusive of any other rights to
which any such director or officer or employee may otherwise be entitled
and shall be available whether or not the director or officer or employee
continues to be a director or officer or employee at the time of incurring
any such expenses and liabilities.
II-2
<PAGE>
The Company has an insurance policy covering its liabilities and expenses
which might arise in connection with its lawful indemnification of its directors
and officers for certain of their liabilities and expenses and also covering its
officers and directors against certain other liabilities and expenses.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Form of Subordinated Note Indenture between Georgia Power Company and Chemical
Bank, as Trustee.
4.2 -- Form of Supplemental Indenture to Subordinated Note Indenture to be used in
connection with the issuance of Junior Subordinated Notes.
4.3-A -- Certificate of Trust of Georgia Power Capital Trust I.
4.3-B -- Certificate of Trust of Georgia Power Capital Trust II.
4.3-C -- Certificate of Trust of Georgia Power Capital Trust III.
4.4-A -- Trust Agreement of Georgia Power Capital Trust I.
4.4-B -- Trust Agreement of Georgia Power Capital Trust II.
4.4-C -- Trust Agreement of Georgia Power Capital Trust III.
4.5 -- Form of Amended and Restated Trust Agreement.
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above).
4.7 -- Form of Junior Subordinated Note (included in Exhibit 4.2 above).
4.8 -- Form of Guarantee Agreement.
4.9 -- Form of Agreement as to Expenses and Liabilities (included in Exhibit 4.5 above).
5.1 -- Opinion of Troutman Sanders LLP.*
5.2 -- Opinion of Richards, Layton & Finger.*
8.1 -- Tax Opinion of Troutman Sanders LLP.*
12.1 -- Computation of ratio of earnings to fixed charges.
12.2 -- Computation of ratio of earnings to fixed charges plus preferred dividend
requirements (pre-income tax basis).
15.1 -- Letter re unaudited interim financial information.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Troutman Sanders LLP (included in Exhibit 5.1 above).
23.3 -- Consent of Troutman Sanders LLP (included in Exhibit 8.1 above).
23.4 -- Consent of Richards, Layton & Finger (included in Exhibit 5.2 above).
24.1 -- Powers of Attorney and Resolution.
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Property Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Guarantee Trustee.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Indenture Trustee.
</TABLE>
- ---------------
* To be subsequently filed or incorporated by reference.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) Undertaking related to Rule 415 offering:
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, S-8 or F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrants
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) Undertaking related to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Company's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing provisions
or otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the
II-4
<PAGE>
payment by the registrants of expenses incurred or paid by a director,
officer or controlling person of the registrants in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of their counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 14TH DAY OF JUNE,
1996.
GEORGIA POWER COMPANY
By: H. ALLEN FRANKLIN
President and Chief Executive
Officer
By:
/s/Wayne Boston
Wayne Boston,
Attorney-in-fact
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL TRUST I CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 14TH DAY OF
JUNE, 1996.
GEORGIA POWER CAPITAL TRUST I
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL TRUST II CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 14TH DAY OF
JUNE, 1996.
GEORGIA POWER CAPITAL TRUST II
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
II-6
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL TRUST III CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 14TH DAY OF
JUNE, 1996.
GEORGIA POWER CAPITAL TRUST III
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
II-7
<PAGE>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING DIRECTORS AND OFFICERS
OF GEORGIA POWER COMPANY IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- --------------------------------- --------------
<C> <S> <C>
H. ALLEN FRANKLIN President, Chief Executive
Officer and Director (Principal
Executive Officer)
WARREN Y. JOBE Executive Vice President,
Treasurer and Chief Financial
Officer and Director (Principal
Financial Officer)
CLIFF S. THRASHER Vice President and Comptroller
(Principal Accounting Officer)
BENNETT A. BROWN
A. W. DAHLBERG, III
WILLIAM A. FICKLING, JR.
L. G. HARDMAN III
JAMES R. LIENTZ, JR.
WILLIAM A. PARKER, JR. Directors
G. JOSEPH PRENDERGAST
HERMAN J. RUSSELL
GLORIA M. SHATTO
WILLIAM JERRY VEREEN
CARL WARE
THOMAS R. WILLIAMS
BY WAYNE BOSTON June 14, 1996
(WAYNE BOSTON, ATTORNEY-IN-FACT)
</TABLE>
<PAGE>
Exhibit Index
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- -------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Form of Subordinated Note Indenture between Georgia Power Company and Chemical
Bank, as Trustee.
4.2 -- Form of Supplemental Indenture to Subordinated Note Indenture to be used in
connection with the issuance of Junior Subordinated Notes.
4.3-A -- Certificate of Trust of Georgia Power Capital Trust I.
4.3-B -- Certificate of Trust of Georgia Power Capital Trust II.
4.3-C -- Certificate of Trust of Georgia Power Capital Trust III.
4.4-A -- Trust Agreement of Georgia Power Capital Trust I.
4.4-B -- Trust Agreement of Georgia Power Capital Trust II.
4.4-C -- Trust Agreement of Georgia Power Capital Trust III.
4.5 -- Form of Amended and Restated Trust Agreement.
4.6 -- Form of Preferred Security (included in Exhibit 4.5 above).
4.7 -- Form of Junior Subordinated Note (included in Exhibit 4.2 above).
4.8 -- Form of Guarantee Agreement.
4.9 -- Form of Agreement as to Expenses and Liabilities (included in Exhibit 4.5 above).
5.1 -- Opinion of Troutman Sanders LLP.*
5.2 -- Opinion of Richards, Layton & Finger.*
8.1 -- Tax Opinion of Troutman Sanders LLP.*
12.1 -- Computation of ratio of earnings to fixed charges.
12.2 -- Computation of ratio of earnings to fixed charges plus preferred dividend
requirements (pre-income tax basis).
15.1 -- Letter re unaudited interim financial information.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Troutman Sanders LLP (included in Exhibit 5.1 above).
23.3 -- Consent of Troutman Sanders LLP (included in Exhibit 8.1 above).
23.4 -- Consent of Richards, Layton & Finger (included in Exhibit 5.2 above).
24.1 -- Powers of Attorney and Resolution.
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Property Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Guarantee Trustee.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of Chemical
Bank, as Indenture Trustee.
</TABLE>
- ---------------
* To be subsequently filed or incorporated by reference.
Exhibt 4.1
GEORGIA POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED AS OF _______ _, 1996
<PAGE>
GEORGIA POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SUBORDINATED NOTE INDENTURE, DATED AS OF _______ _, 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
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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
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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
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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
RTICLE 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
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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 _______ _, 1996, between
GEORGIA POWER COMPANY, a corporation duly organized and existing under the laws
of the State of Georgia (herein called the "Company"), having its principal
office at 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, 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 foregoing, any Securities Trust organized by the
Company shall not be deemed to be an Affiliate of the Company.
2
<PAGE>
"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.
"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
3
<PAGE>
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.
"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.
4
<PAGE>
"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
(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
5
<PAGE>
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.
"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.
6
<PAGE>
"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 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
7
<PAGE>
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 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
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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.
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.
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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.
(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 proof with respect to any of the matters referred to in
this Section.
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(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
333 Piedmont Aveneue, N.E., Atlanta, Georgia 30308, or at any other
address 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
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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.
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.
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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 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
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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.
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
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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
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.
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(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 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
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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 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 than that of
a 360-day year consisting of twelve 30-day months;
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(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 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
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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 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
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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 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.
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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 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
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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 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
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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 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:
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(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 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
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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.
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
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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
(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
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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 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
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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
(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
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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
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-payment of the principal of
Junior Subordinated Notes of that series which have become due solely
by such declaration of
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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.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or
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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 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
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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 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;
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(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.
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
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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 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
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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 that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE 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;
(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
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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 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,
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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 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
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(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 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
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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 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
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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:
(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
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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 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
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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 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
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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.
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
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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 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.
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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.
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
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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.
(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.
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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 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
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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 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 Holders of Junior Subordinated Notes of any series in any
material respect; or
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(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 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,
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(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.
(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.
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(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 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
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
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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 Subordinated Notes, then the names of the Holders
of such Junior Subordinated Notes).
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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, or (ii) 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.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
(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
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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, 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 for the selection for redemption of portions (equal to the minimum
authorized
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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.
Notice of redemption of Junior Subordinated Notes to be
redeemed at the election of the Company shall be given by the
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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 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
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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 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.
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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 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
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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 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
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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 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.
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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 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.
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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 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 that further evidence is
required with respect to the right of any Person as a holder of
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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 nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
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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 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
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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 not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made.
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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.
GEORGIA POWER COMPANY
By
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
______________, to me known, who, being by me duly sworn, did depose and say
that he is __________________________________ of Georgia 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:
74
Exhibit 4.2
GEORGIA POWER COMPANY
TO
CHEMICAL BANK,
TRUSTEE.
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF _________ __, 1996
$-----------
SERIES __ _____% JUNIOR SUBORDINATED NOTES
DUE ________ __, ____
<PAGE>
TABLE OF CONTENTS1
PAGE
ARTICLE 1
Series __ 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.
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the ___ day of
_______, 1996, by and between GEORGIA POWER COMPANY, a Georgia corporation, 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308 (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 _________ __, 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 __ 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 __ _____% Junior Subordinated Notes, due _____ __, ____
(the "Series __ Notes").
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There are to be authenticated and delivered $___________ principal
amount of Series __ Notes, and no further Series __ Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series __ Notes shall be issued in definitive fully
registered form.
The Series __ Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series __ Notes shall
initially be evidenced by one certificate issued to the Property Trustee of
Georgia Power Capital Trust I.
The form of the Trustee's Certificate of Authentication for the Series
__ Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series __ 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 _____% per annum from the applicable Interest
Payment Date to the date of payment, compounded _________.
"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 ______ (__) consecutive ________.
"Interest Payment Dates" means _______________________________
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 _______ __, 1996.
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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 Georgia 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 __ Notes.
"Special Event" means an Investment Company Act Event or Tax
Event.
"Stated Maturity" means _____ __, ____.
"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 __ Notes, (ii) interest payable to the related Securities Trust on
the Series __ 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 __ Notes shall bear interest at the
rate of _____% per annum until paid or duly provided for. Interest
shall be paid _________ in arrears on each Interest Payment Date to
the Person in whose name the Series __ 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 __ 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 __
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 requirements of any securities exchange, if
any, on which the Series __ Notes shall be listed, and upon such
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notice as may be required by any such exchange, all as more fully
provided in the Original Indenture.
Payments of interest on the Series __ Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series __ 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 __ 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 __ Notes
shall be made upon surrender of the Series __ 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 __ 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 __ Notes for up to ______ (__)
consecutive ________ (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 ______ (__)
consecutive ________. Upon the termination of any such Extension
Period and upon the payment of 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.
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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
__ 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 __ Notes.
The Company shall give the Holder or Holders of the Series __ 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 _______ of the ______ (__) ________, 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 __ Notes such information
as said Paying Agent shall reasonably require in order to fulfill its tax
reporting obligations with respect to such Series __ Notes.
SECTION 105. Denominations. The Series __ Notes may be
issued in the denominations of $25, or any integral multiple
thereof.
SECTION 106. Global Securities. If the Series __ Notes are
distributed to Holders of the Trust Securities of the Securities
Trust in liquidation of such Holders' interests therein, the Series
__ Notes will be issued in the form of one or more Global
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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 __ Notes represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Series __ 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 __ 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 __ 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
__ Notes. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series __ 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 __ 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 __ 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 __ Notes to be called for redemption, and ending at the
close of business on the day of the mailing, or (b) to transfer or exchange any
Series __ Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series __ Note redeemed in part.
SECTION 108. Redemption. The Series __ Notes shall be
subject to redemption at the option of the Company, in whole or in
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part, without premium or penalty, at any time or from time to time on or after
________ __, ____, 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 __ 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 __ 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 __ Notes in part only, a new
Series __ 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 __ 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 __ 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 in respect of Series __ 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
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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 __ Notes are to be issued
as a Global Security in connection with the distribution of the Series __ Notes
to the Holders of the Preferred Securities issued by the Securities Trust, the
Company will use its best efforts to list such Series __ 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: GEORGIA POWER COMPANY
By: By:
Secretary Assistant Treasurer
CHEMICAL BANK
By: By:
Senior Trust Officer Vice President
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EXHIBIT A
FORM OF SERIES __ NOTE
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NO. 1 CUSIP NO. _________
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE
PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
GEORGIA POWER COMPANY
SERIES __ _____% JUNIOR SUBORDINATED NOTE
DUE _____ __, ____
Principal Amount: $___________
Regular Record Date: 15th calendar day prior to
Interest Payment Date
Original Issue Date:
Stated Maturity: _____ __, ____
Interest Payment Dates:
Interest Rate: _____% per annum
Authorized Denomination: $25
Initial Redemption Date:
Georgia Power Company, a Georgia corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to Chemical Bank as
Property Trustee of Georgia Power Capital Trust __, a Delaware business trust,
or registered assigns, the principal sum of _______________ MILLION DOLLARS
($___________) on the Stated Maturity shown above (or upon earlier redemption),
and to pay interest thereon from the Original Issue Date shown above, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, _________ in arrears on each Interest Payment Date as specified
above, commencing on the Interest Payment Date next succeeding the Original
Issue Date shown above and on the Stated Maturity (or upon earlier redemption)
at the rate per annum shown above until the principal hereof is paid or made
available for payment and on any overdue principal and on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (other than an Interest Payment Date
that
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is the Stated Maturity or on a Redemption Date) will, as provided in such
Indenture, be paid to the Person in whose name this Note (the "Note") is
registered at the close of business on the Regular Record Date as specified
above next preceding such Interest Payment Date, provided that any interest
payable at Stated Maturity or on any Redemption Date will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes of this series shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
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 this Note is
not a Business Day, then 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, 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. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee or the principal corporate trust office of the Property Trustee of
the Securities Trust are closed for business.
The Company shall have the right at any time and from time to time
during the term of this Note to extend the interest payment period of such Note
for up to __ consecutive ________ but not beyond the Stated Maturity of this
Note (each, an "Extension Period"), during which periods unpaid interest
(together with interest thereon) will compound _________ at the Interest Rate
("Deferred Interest"). Upon the termination of each Extension Period, which
shall be an Interest Payment Date, the Company shall pay all Deferred Interest
on the next succeeding Interest Payment Date to the Person in whose name this
Note is registered at the close of business on the Regular Record Date for such
Interest Payment Date, provided that any Deferred Interest payable at Stated
Maturity or on any Redemption Date will be paid to the Person to whom principal
is payable. Prior to the termination of any such
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Extension Period, the Company may extend the interest payment period, provided
that such Extension Period together with all such previous and further
extensions thereof shall not exceed __ consecutive ________. Upon the
termination of any such Extension Period, and the payment of all accrued and
unpaid interest and any Additional Interest then due, the Company may select a
new Extension Period, subject to the above requirements. 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 other than its
guarantee of the Preferred Securities issued by the Securities Trust) issued by
the Company that rank pari passu with or junior to this Note. The Company shall
give the Holder of this Note and the Trustee notice 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 distributions are payable.
The Company also shall be obligated to pay when due and without
extension all additional amounts as may be required so that the net amount
received and retained by the Holder of this Note (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 such Holder would
have received had no such taxes, duties, assessments, or other governmental
charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
__ Notes shall be made upon surrender of the Series __ 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. Payment of interest (including interest on an 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 16 days prior to the
date for payment by the Person entitled thereto.
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The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture), and this Note
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Note, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _______ __, 1996.
GEORGIA POWER COMPANY
By:
Its
Attest:
Assistant Secretary
{Seal of GEORGIA POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By:
Authorized Officer
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(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior Subordinated
Notes of the Company (the "Notes"), issued and issuable in one or more series
under a Subordinated Note Indenture, dated as of _______ _, 1996, as
supplemented (the "Indenture"), between the Company and Chemical Bank, Trustee
(the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures incidental thereto reference is hereby
made for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
issued thereunder and of the terms upon which said Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated on the
face hereof as Series __ _____% Junior Subordinated Notes, due _____ __, ____
(the "Series __ Notes") in the aggregate principal amount of up to
$______________. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after _____ __, ____ at
the option of the Company, without premium or penalty, in whole or in part, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including any Additional Interest, if any, to the
Redemption Date. Upon the occurrence of a Special Event (as defined below), the
Company may, within 90 days following the occurrence thereof and subject to the
terms and conditions of the Indenture, redeem this Note without premium or
penalty, in whole, at a Redemption Price equal to 100% of the principal amount
thereof plus accrued but unpaid interest, including any Additional Interest, if
any, 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
related Securities Trust the opportunity to eliminate, within such 90-day
period, the Special Event by taking some ministerial action or some other
similar reasonable measure which would have no adverse effect on such Securities
Trust, the Company or the holders of the related Trust Securities, as the case
may be, the Company or such Securities Trust will pursue such measure in lieu of
redemption. A Special Event may be a Tax Event or an Investment Company Act
Event. "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
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respect to income accrued or received on the Series __ Notes, (ii) interest
payable to the related Securities Trust 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. "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 related Securities Trust is or will be considered an
"investment company" which is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
Original Issue Date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof. The Notes will not have a
sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
16
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
17
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM -- as tenants in common
UNIF GIFT MIN ACT --
(Cust)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with rights of
Custodian survivorship and not
as tenants in common
Custodian
(Minor)
Under Uniform Gifts to
Minors Act
(State)
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee).
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular without alteration or
enlargement, or any change whatever.
18
<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
19
Exhibit 4.3-A
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Georgia Power Capital Trust I (the
"Trust"), dated June 13, 1996, is being duly executed and filed by the
undersigned, as trustee of the Trust, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust being formed hereby is
Georgia Power Capital Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are Chemical Bank Delaware, 1201 Market
Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
Exhibit 4.3-B
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST II
THIS CERTIFICATE OF TRUST of Georgia Power Capital Trust II (the
"Trust"), dated June 13, 1996, is being duly executed and filed by the
undersigned, as trustee of the Trust, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust being formed hereby is Georgia Power
Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware are Chemical
Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
Exhibit 4.3-C
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST III
THIS CERTIFICATE OF TRUST of Georgia Power Capital Trust III (the
"Trust"), dated June 13, 1996, is being duly executed and filed by the
undersigned, as trustee of the Trust, to form a business trust under the
Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust being formed hereby is Georgia Power
Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware are Chemical
Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of its
filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
Exhibit 4.4-A
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of June 13, 1996, by and between
Georgia Power Company, a Georgia 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 "Georgia 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. ss. 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 an exhibit 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") 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 (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto 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 or other appropriate form (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
<PAGE>
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 perform
on behalf of the Trust an underwriting agreement with the Depositor and the
underwriter or underwriters of the Preferred Securities 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 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.
2
<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.
GEORGIA POWER COMPANY,
as Depositor
By: /s/ Wayne Boston
Name: Wayne Boston
Title: Assistant Secretary
CHEMICAL BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
3
Exhibit 4.4-B
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of June 13, 1996, by and between
Georgia Power Company, a Georgia 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 "Georgia Power Capital
Trust II", 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. ss. 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 an exhibit 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") 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 (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto 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 or other appropriate form (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
<PAGE>
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 perform
on behalf of the Trust an underwriting agreement with the Depositor and the
underwriter or underwriters of the Preferred Securities 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 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.
2
<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.
GEORGIA POWER COMPANY,
as Depositor
By: /s/ Wayne Boston
Name: Wayne Boston
Title: Assistant Secretary
CHEMICAL BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
Exhibit 4.4-C
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of June 13, 1996, by and between
Georgia Power Company, a Georgia 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 "Georgia Power Capital
Trust III", 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. ss. 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 an exhibit 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") 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 (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto 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 or other appropriate form (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
<PAGE>
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 perform
on behalf of the Trust an underwriting agreement with the Depositor and the
underwriter or underwriters of the Preferred Securities 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 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.
2
<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.
GEORGIA POWER COMPANY,
as Depositor
By: /s/ Wayne Boston
Name: Wayne Boston
Title: Assistant Secretary
CHEMICAL BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
Exhibit 4.5
GEORGIA POWER CAPITAL TRUST __
AMENDED AND RESTATED
TRUST AGREEMENT
among
GEORGIA POWER COMPANY, as Depositor,
CHEMICAL BANK, as Property Trustee,
CHEMICAL BANK DELAWARE, as Delaware Trustee,
and
JUDY M. ANDERSON and WAYNE BOSTON,
as Administrative Trustees
Dated as of _______ __, 1996
<PAGE>
GEORGIA POWER CAPITAL TRUST __
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
i
<PAGE>
Section 4.03 Subordination of Common Securities........................... 23
Section 4.04 Payment Procedures........................................... 23
Section 4.05 Tax Returns and Reports...................................... 23
ARTICLE V
Trust Securities Certificates................................ 24
Section 5.01 Initial Ownership............................................ 24
Section 5.02 The Trust Securities Certificates............................ 24
Section 5.03 Authentication of Trust Securities
Certificates................................................. 24
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates............................ 25
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates...................................... 25
Section 5.06 Persons Deemed Securityholders............................... 26
Section 5.07 Access to List of Securityholders' Names and
Addresses.................................................... 26
Section 5.08 Maintenance of Office or Agency.............................. 27
Section 5.09 Appointment of Paying Agent.................................. 27
Section 5.10 Ownership of Common Securities by Depositor.................. 28
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate................................ 28
Section 5.12 Notices to Clearing Agency................................... 29
Section 5.13 Definitive Preferred Securities Certificates................. 29
Section 5.14 Rights of Securityholders.................................... 30
ARTICLE VI
Acts of Securityholders; Meetings; Voting.................... 30
Section 6.01 Limitations on Voting Rights................................. 30
Section 6.02 Notice of Meetings........................................... 31
Section 6.03 Meetings of Preferred Securityholders........................ 32
ii
<PAGE>
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
Depositor or Trust........................................... 43
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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
Section 10.10 Conflict with Trust Indenture Act............................ 52
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EXHIBIT A 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 _______ __,
1996, by and among (i) Georgia Power Company, a Georgia 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) Judy M. Anderson, an
individual, and Wayne Boston, an individual, as administrative trustees (each an
"Administrative Trustee" and together the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of _______
__, 1996 (the "Original Trust Agreement"), and by the execution and filing by
the Delaware Trustee with the Secretary of State of the State of Delaware of the
Certificate of Trust, dated _________ __, 1996; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the addition of the Bank, _________________ and _______________ 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 Trust Office or the Indenture Trustee's principal
corporate trust office is closed for business.
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"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 Georgia 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.
"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
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"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 Georgia 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 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.
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"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 $___________ aggregate principal
amount of the Depositor's Series __ _____% Junior Subordinated Notes, due _____
__, ____, issued pursuant to the Subordinated Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Notes to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Subordinated Notes are distributed.
"Liquidation Amount" means the stated amount of $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.
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"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 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;
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(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.
"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.
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"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.
"Subordinated Indenture" means the Indenture, dated as of _______ __,
1996, between the Depositor and the Indenture Trustee, as supplemented by the
Supplemental Indenture.
"Supplemental Indenture" means the First Supplemental Indenture, dated
as of _______ __, 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.
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"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
_______ __, 1996, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as
"Georgia Power Capital Trust __", 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.
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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 Georgia Power Company, 333 Piedmont Avenue,
N.E., Atlanta, Georgia 30308, Attention: Treasurer. The principal place of
business of the Trust is c/o Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308. 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
------------------------------------
_______ __, 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 _________ Preferred Securities
having an aggregate Liquidation Amount of $__________, against
receipt of the aggregate purchase price of such Preferred
Securities of $__________, which amount the Administrative Trustees
shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall 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 $___________,
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 ________ Common Securities having an
aggregate Liquidation Amount
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of $_________, and (ii) cause the Property Trustee to deliver to
the Depositor the sum of $___________.
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,
_____________________, and ________________ 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 to execute and cause the
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:
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;
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(ii) to give the Depositor and the Property Trustee prompt written
notice of the occurrence of any Special Event (as defined in the
Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees
shall consult with the Depositor and the Property Trustee before
taking or refraining to take any ministerial action in relation
to a Special Event;
(iii)to establish a record date with respect to all actions to be
taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture
Act and with respect to Distributions, voting rights,
redemptions, and exchanges, and to issue relevant notices to
Holders of the Trust Securities as to such actions and applicable
record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such
Legal Action;
(v) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for
such services;
(vi) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(vii)to give the certificate to the Property Trustee required by ss.
314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of this
Agreement;
(ix) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Trust Securities or to
enable the Trust to effect the purposes for which the Trust has
been created;
(x) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust;
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(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 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:
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(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;
(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;
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(xii)as provided in this Trust Agreement, the winding up of the
affairs of and termination of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the
Trust Property for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including, to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any
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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 the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall
consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Trust Agreement. The
right, title and interest of the Property Trustee to the Junior Subordinated
Notes shall vest automatically in each Person who may thereafter be appointed as
Property Trustee in accordance with the terms hereof.
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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 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
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Trust or the successor entity to be classified as other than a grantor trust for
federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Junior Subordinated Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01 Distributions.
(a) 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
_________ in arrears on _________________________________________ of each year,
commencing on _____ __, 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").
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(b) Distributions payable on the Trust Securities shall be fixed at a
rate of _____% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full _________ 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 _________) 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) _________ 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.
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;
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(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 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
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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 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.
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(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 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
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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 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.
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Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, authenticate and deliver in the name of
the designated transferee or transferees, one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of authentication by the Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities that have been called for redemption. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustees and the Securities
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be 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
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indemnity as may be required by them to save each of them harmless, then in the
absence of notice that such Trust Securities Certificate shall have been
acquired by a bona fide purchaser, the Administrative Trustees or any one of
them on behalf of the Trust shall execute and authenticate and make available
for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Trust Securities Certificate, a new Trust Securities Certificate of
like class, tenor and denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrative Trustees or
the Securities Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Trust Securities Certificate issued pursuant to this
Section shall constitute conclusive evidence of an ownership interest in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration of
transfer, the Trustees or the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be
registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving distributions
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
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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 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
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Agent shall include any co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the Issue
Date, the Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and interest
on the Book-Entry Preferred Securities and the giving of
instructions or directions to Owners of Book-Entry Preferred
Securities) as the sole Holder of Book-Entry Preferred Securities
and shall have no obligations to the Owners thereof;
(iii)to the extent that the provisions of this Section conflict with
any other provisions of this Trust Agreement, the provisions of
this Section shall control;
(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
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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.
(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
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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 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
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Subordinated Indenture or the Junior Subordinated Notes, where such consent
shall be required, or to any other action, as holder of the Junior Subordinated
Notes, under the Subordinated Indenture, without, in each case, obtaining the
prior approval of the Holders of at least 66-2/3% in Liquidation Amount of the
Preferred Securities; provided, however, that where a consent under the
Subordinated Indenture would require the consent of each holder of Junior
Subordinated Notes affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except pursuant to a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Indenture Trustee with respect to the Junior Subordinated
Notes. In addition to obtaining the foregoing approvals of the Holders of the
Preferred Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced
in such matters to the effect that the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes on account of
such action.
(c) If any proposed amendment to 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.
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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
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annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to 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
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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).
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
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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 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
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corporation or trust company duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full corporate power,
authority and legal right to execute, deliver and perform their obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Bank and constitutes the valid
and legally binding agreement of each of the Bank and the Delaware Bank,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by each of the Bank and the
Delaware Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank, 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.
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(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(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;
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(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 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;
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(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
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
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administration of this Trust Agreement, including the costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of 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
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have power to appoint, and upon the written request of the Property Trustee, the
Depositor shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Property Trustee
either to act as co-trustee, jointly with the Property Trustee, of all or any
part of such Trust Property, or to act as separate trustee of any such Trust
Property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable,subject to the
other provisions of this Section. If the Depositor does not join in such
appointment within 15 days after the receipt by it of a request so to do, or in
case an 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).
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
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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 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;
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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 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,
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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,
1997, 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 __ 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 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.
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(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 __ consecutive _________ distribution
periods, or (ii) an Event of Default occurs and is continuing, then the Holders
of Preferred Securities will rely on the enforcement by the Property Trustee of
its rights against the Company as the holder of the Junior Subordinated Notes.
In addition, the Holders of a majority in aggregate liquidation amount of the
Preferred Securities will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property Trustee
under 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
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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 _____ __, ____ (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 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
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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
(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
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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
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
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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 any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement,
provided, however, that any such amendment shall not adversely affect in any
material respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes at any time that
any Trust Securities are outstanding; provided, however, that, except in the
case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause (i), any
amendments of
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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 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
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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 Georgia Power Company, 333 Piedmont Avenue, N.E., Atlanta, Georgia
30308, Attention: Treasurer, Facsimile No. (___) ___-____, with a copy to the
Assistant Secretary, Facsimile No. (770) 821-2894. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee and the Delaware Trustee, 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 Georgia Power Capital
Trust __ c/o Treasurer. Such notice, demand or other communication to or upon
the Trust or the Trustees shall be deemed to have been
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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.
(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
52
<PAGE>
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
53
<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.
GEORGIA POWER COMPANY
By:
Its
CHEMICAL BANK,
as Property Trustee
By:
Title:
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Title:
Judy M. Anderson,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
54
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST __
THIS CERTIFICATE OF TRUST of Georgia Power Capital Trust __ (the
"Trust"), dated _______ __, 1996, is being duly executed and filed by the
undersigned, as trustee of the Trust, to form a business trust under the
Delaware Business Trust Act (12 Del. C.
Section 3801, et seq.).
1. Name. The name of the business trust being formed hereby
is Georgia Power Capital Trust __.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the
State of Delaware are Chemical Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801.
4. Effective Date. This Certificate of Trust shall be
effective as of its filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
CHEMICAL BANK DELAWARE,
as Delaware Trustee
By:
Name:
Title:
Exhibit A - Page 1
<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: Georgia Power Capital Trust __
_____% 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 Georgia Power Capital Trust __, a Delaware statutory business
trust (the "Trust"). The Securities are guaranteed to the extent set forth in
the Prospectus relating to the Securities dated _______ __, 1996 by Georgia
Power Company, a Georgia corporation. The Trust is selling the Securities to
certain underwriters (the "Underwriters") pursuant to an Underwriting Agreement
dated _______ __, 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 _________
Securities.
2. The Amended and Restated Trust Agreement dated as of _______ __,
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, 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
Exhibit B - Page 1
<PAGE>
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 "Georgia Power Capital Trust __, _____%
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 aggregate
Exhibit B - Page 3
<PAGE>
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,
Georgia Power Capital Trust __
By:
Name: Wayne Boston
Title: Administrative Trustee
CHEMICAL BANK,
as Property Trustee of
Georgia Power Capital Trust __
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
Certificate Evidencing Common Securities
of
Georgia Power Capital Trust __
Common Securities
(liquidation amount $25 per Common Security)
Georgia Power Capital Trust __, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that Georgia
Power Company (the "Holder") is the registered owner of
___________________________ (_______) 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 _______ __, 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 ____ day of _______, 1996.
Georgia Power Capital Trust __
By:
Judy M. Anderson,
as Administrative Trustee
By:
Wayne Boston,
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 "Agreement") is
made as of ___________ ___, 1996, between Georgia Power Company, a Georgia
corporation (the "Company"), and Georgia Power Capital Trust __, a Delaware
business trust (the "Trust").
WHEREAS, the Trust intends to issue its _____% Common Securities (the
Common Securities) to and receive Junior Subordinated Notes from the Company and
to issue and sell Georgia Power Capital Trust __ _____% Trust Preferred
Securities, Series __ (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 _______ __, 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
Preferred Securities or any Beneficiary must restore payment of any
Exhibit D - Page 1
<PAGE>
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, assigns,
Exhibit D - Page 2
<PAGE>
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:
Georgia Power Capital Trust __
c/o Chemical Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.:
Attention: Corporate Trustee
Administration Department
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
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 GEORGIA.
THIS AGREEMENT is executed as of the date and year first above written.
GEORGIA POWER COMPANY
By:
Name:
Title:
GEORGIA POWER CAPITAL TRUST __
By:
Wayne Boston, 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 Georgia Power
Capital Trust __ 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
P-1
Number of Preferred Securities
---------
CUSIP NO. _________
Certificate Evidencing Preferred Securities
of
Georgia Power Capital Trust __
_____% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Georgia Power Capital Trust __, 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
___________________________________________ (_________) preferred securities of
the Trust representing undivided beneficial ownership interest in the assets of
the Trust and designated the Georgia Power Capital Trust __ _____% 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 Trust Agreement of the
Trust, dated as of _______ __, 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 Georgia Power Company, a Georgia corporation (the
"Company") pursuant to a Guarantee Agreement between the Company and Chemical
Bank, as guarantee trustee, dated
Exhibit E - Page 1
<PAGE>
as of _______ __, 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 ____ day of _______, 1996.
GEORGIA POWER CAPITAL TRUST __
By:
Judy M. Anderson,
as Administrative Trustee
By:
Wayne Boston,
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)
Exhibit 4.8
GUARANTEE AGREEMENT
Between
Georgia Power Company
(as Guarantor)
and
Chemical Bank
(as Trustee)
dated as of
________ __, 1996
<PAGE>
CROSS-REFERENCE TABLE1
Section of
Trust Indenture Act
of 1939, as amended
Section of
Guarantee
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 ________
__, 1996, is executed and delivered by GEORGIA POWER COMPANY, a Georgia
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 GEORGIA POWER CAPITAL TRUST __, a Delaware statutory business trust
(the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of ________ __, 1996 among the Trustee, the other
Trustees named therein, and Georgia Power Company, as Depositor, the Trust is
issuing as of the date hereof $__________ aggregate liquidation amount of its
_____% Trust Preferred Securities (the "Preferred Securities") representing
ownership interests in the Trust and having the terms set forth in the Trust
Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds thereof will be used to purchase the Junior Subordinated Notes (as
defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder thereof, which payment the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and
<PAGE>
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 if and 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 if and 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 ________
__, 1996, among the Guarantor, as Subordinated Note Issuer, and Chemical Bank,
as trustee, as supplemented by the Supplemental Indenture dated as of ________
__, 1996, by and between the Guarantor and Chemical Bank, as Trustee.
"Majority in liquidation amount of Preferred Securities" means a vote
by Holder(s) of Preferred Securities, voting separately as a class, of more than
50% of the liquidation amount of all Preferred Securities outstanding at the
time of determination.
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"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.
"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.
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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 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.
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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
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
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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 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
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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;
(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;
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(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 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.
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(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.
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
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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.
(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
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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;
(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;
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(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 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.
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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 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)
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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:
(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:
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
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
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(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:
Georgia Power Capital Trust __
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;
(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
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(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.
GEORGIA POWER COMPANY
By:
Name:
Title:
CHEMICAL BANK
By:
Name:
Title:
16
<TABLE>
<CAPTION>
EXHIBIT 12.1
6/14/96
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1995
and the twelve months ended April 30, 1996
Twelve
Months
Ended
Year ended December 31, April 30,
===================================================================================
1991 1992 1993 1994 1995 1996
-----------------------------Thousands of Dollars----------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 1,009,019 $ 1,004,886 $ 1,034,795 $ 927,336 $ 959,692 $ 937,104
Federal and state income taxes 315,507 165,667 266,771 360,380 411,675 424,733
Deferred income taxes, net 52,941 194,748 168,372 34,130 35,367 22,660
Deferred investment tax credits (9,524) (5,704) (18,274) (489) 1,127 1,127
AFUDC - Debt funds 10,584 8,459 8,294 11,613 12,123 11,459
------------ ------------ ------------ ------------ ------------ ------------
Earnings as defined $ 1,378,527 $ 1,368,056 $ 1,459,958 $ 1,332,970 $ 1,419,984 $ 1,397,083
============ ============ ============ ============ ============ ============
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 462,415 $ 404,854 $ 345,552 $ 308,611 $ 257,092 $ 236,164
Interest on interim obligations 4,906 9,694 15,530 17,529 21,463 20,842
Amort of debt disc, premium and expense, net 5,784 7,891 14,087 15,776 15,846 15,593
Other interest charges 9,941 12,426 47,393 23,483 20,400 23,092
------------ ------------ ------------ ------------ ------------ ------------
Fixed charges as defined $ 483,046 $ 434,865 $ 422,562 $ 365,399 $ 314,801 $ 295,691
============ ============ ============ ============ ============ ============
RATIO OF EARNINGS TO FIXED CHARGES 2.85 3.15 3.46 3.65 4.51 4.72
==== ==== ==== ==== ==== ====
Note: The above figures have been adjusted to give effect to Georgia
Power Company's 50% ownership of Southern Electric Generating
Company.
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT 12.2
6/14/96
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges plus preferred
dividend requirements for the five years ended December 31, 1995
and the twelve months ended April 30, 1996
Twelve
Months
Ended
Year ended December 31, April 30,
=================================================================================
1991 1992 1993 1994 1995 1996
-----------------------------Thousands of Dollars--------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $1,009,019 $1,004,886 $1,034,795 $ 927,336 $ 959,692 $ 937,104
Federal and state income taxes 315,507 165,667 266,771 360,380 411,675 424,733
Deferred income taxes, net 52,941 194,748 168,372 34,130 35,367 22,660
Deferred investment tax credits (9,524) (5,704) (18,274) (489) 1,127 1,127
AFUDC - Debt funds 10,584 8,459 8,294 11,613 12,123 11,459
----------- ----------- ----------- ----------- ----------- -----------
Earnings as defined $1,378,527 $1,368,056 $1,459,958 $1,332,970 $1,419,984 $1,397,083
=========== =========== =========== =========== =========== ===========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 462,415 $ 404,854 $ 345,552 $ 308,611 $ 257,092 $ 236,164
Interest on interim obligations 4,906 9,694 15,530 17,529 21,463 20,842
Amort of debt disc, premium and expense, net 5,784 7,891 14,087 15,776 15,846 15,593
Other interest charges 9,941 12,426 47,393 23,483 20,400 23,092
----------- ----------- ----------- ----------- ----------- -----------
Fixed charges as defined 483,046 434,865 422,562 365,399 314,801 295,691
Tax deductible preferred dividends 1,804 1,804 1,753 1,753 1,753 1,753
----------- ----------- ----------- ----------- ----------- -----------
484,850 436,669 424,315 367,152 316,554 297,444
----------- ----------- ----------- ----------- ----------- -----------
Non-tax deductible preferred dividends 59,897 56,138 48,921 46,253 46,399 45,629
Ratio of net income before taxes to net income x 1.669 x 1.613 x 1.672 x 1.687 x 1.682 x 1.687
----------- ----------- ----------- ----------- ----------- -----------
Pref dividend requirements before income taxes 99,968 90,551 81,796 78,029 78,043 76,976
----------- ----------- ----------- ----------- ----------- -----------
Fixed charges plus pref dividend requirements $ 584,818 $ 527,220 $ 506,111 $ 445,181 $ 394,597 $ 374,420
=========== =========== =========== =========== =========== ===========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 2.36 2.59 2.88 2.99 3.60 3.73
==== ==== ==== ==== ==== ====
Note: The above figures have been adjusted to give effect to Georgia
Power Company's 50% ownership of Southern Electric Generating
Company.
</TABLE>
EXHIBIT 15.1
ARTHUR
ANDERSEN
ARTHUR ANDERSEN & CO, SC
-------------------------
June 14, 1996 Arthur Andersen LLP
-------------------------
Suite 2500
Georgia Power Company 133 Peachtree Street NE
333 Piedmont Avenue, NE Atlanta GA 30303-1846
Atlanta, GA 30308 404 658 1776
Ladies and Gentlemen:
We are aware that Georgia Power Company has incorporated by reference in this
Registration Statement its Form 10-Q for the quarter ended March 31, 1996, which
includes our report on Georgia Power Company dated May 9, 1996, covering the
unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933 (the "Act"), that report is not
considered a part of the Registration Statement prepared or certified by our
firm or a report prepared or certified by our firm within the meaning of
Sections 7 and 11 of the Act.
Very truly yours,
/s/ARTHUR ANDERSEN LLP
EXHIBIT 23.1
ARTHUR ANDERSON LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 (relating to Georgia Power
Capital Trust I Preferred Securities, Georgia Power Capital Trust II Preferred
Securities, Georgia Power Capital Trust III Preferred Securities, Georgia Power
Company Junior Subordinated Notes and Georgia Power Company Guarantee with
respect to Preferred Securities of Georgia Power Capital Trust I, Georgia Power
Capital Trust II and Georgia Power Capital Trust III) of our reports on Georgia
Power Company dated February 21, 1996 included in Georgia Power Company's Form
10-K for the year ended December 31, 1995 and to all references to our firm
included in this Registration Statement.
/s/ARTHUR ANDERSEN LLP
Atlanta, Georgia
June 14, 1996
EXHIBIT 24.1
May 15, 1996
W. L. Westbrook, Warren Y. Jobe and Wayne Boston
Dear Sirs:
Georgia Power Company proposes to file with the Securities and Exchange
Commission a registration statement or statements under the Securities Act of
1933 with respect to preferred securities of a statutory business trust or
trusts (or other special purpose entity or entities) and the related guarantee
or guarantees and debt instruments of Georgia Power Company in an aggregate
amount of up to $400 million.
Georgia Power Company and the undersigned directors and officers of
said Company, individually as a director and/or as an officer of the Company,
hereby make, constitute and appoint each of you our true and lawful Attorney
(with full power of substitution) for each of us and in each of our names,
places and steads to sign and cause to be filed with the Securities and Exchange
Commission the aforementioned registration statement or statements and
appropriate amendment or amendments thereto (including post-effective
amendments), to be accompanied in each case by a prospectus and any
appropriately amended prospectus or supplement thereto and any necessary
exhibits.
Georgia Power Company hereby authorizes you or any one of you to
execute said registration statement or statements and any amendments thereto
(including post-effective amendments) on its behalf as attorney-in-fact for it
and its authorized officers, and to file the same as aforesaid.
The undersigned directors and officers of Georgia Power Company hereby
authorize you or any one of you to sign said registration statement or
statements on their behalf as attorney-in-fact and to amend, or remedy any
deficiencies with respect to, said registration statement or statements by
appropriate amendment or amendments (including post-effective amendments) and to
file the same as aforesaid.
Yours very truly,
GEORGIA POWER COMPANY
By /s/H. Allen Franklin
President and
Chief Executive Officer
<PAGE>
/s/Bennett A. Brown /s/G. Joseph Prendergast
/s/A. W. Dahlberg /s/Herman J. Russell
/s/William A. Fickling, Jr. /s/Gloria M. Shatto
/s/H. Allen Franklin /s/William Jerry Vereen
/s/L. G. Hardman III /s/Carl Ware
/s/Warren Y. Jobe /s/Thomas R. Williams
/s/James R. Lientz, Jr. /s/Cliff S. Thrasher
/s/William A. Parker, Jr. /s/Judy M. Anderson
<PAGE>
- 3 -
Extract from minutes of meeting of the board of directors of Georgia Power
Company.
- - - - - - - - - - - -
RESOLVED: That for the purpose of signing a Registration Statement or
Statements to be filed with the Securities and Exchange Commission,
pursuant to the Securities Act of 1933, as amended, covering up to an
aggregate of $400,000,000 of the Company's tax-advantaged preferred
securities, and any necessary or appropriate amendments (including
post-effective amendments) to such Registration Statement or Statements
(both before and after such statement or statements become effective), this
Company, its officers and the members of its Board of Directors are
authorized to grant their several powers of attorney to W. L. Westbrook,
Warren Y. Jobe and Wayne Boston.
- - - - - - - - - - - -
The undersigned officer of Georgia Power Company does hereby certify
that the foregoing is a true and correct copy of a resolution duly and regularly
adopted at a meeting of the Board of Directors of Georgia Power Company, duly
held on May 15, 1996, at which a quorum was in attendance and voting throughout,
and that said resolution has not since been rescinded but is still in full force
and effect.
Dated June 14, 1996 GEORGIA POWER COMPANY
By /s/Wayne Boston
Assistant Secretary
Exhibit 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GEORGIA POWER CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
GEORGIA POWER CAPITAL TRUST II
(Exact name of obligor as specified in its charter)
GEORGIA POWER CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
(Address of principal executive offices) (Zip Code)
-------------------------------------------
Trust Preferred Securities
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit
1 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 12th day of June, 1996.
CHEMICAL BANK
By /s/ P. Morabito
P. Morabito
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 3,391
Interest-bearing balances ......................... 2,075
Securities: ..........................................
Held to maturity securities............................ 3,607
Available for sale securities.......................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,264
Securities purchased under agreements to resell ... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve ... 104
Loans and leases, net of unearned income,
allowance, and reserve ............................ 71,258
Trading Assets ....................................... 25,919
Premises and fixed assets (including capitalized
leases)............................................ 1,337
Other real estate owned ............................... 30
Investments in unconsolidated subsidiaries and
associated companies............................... 187
Customer's liability to this bank on acceptances
outstanding ....................................... 1,082
Intangible assets ..................................... 419
Other assets .......................................... 7,406
-----
TOTAL ASSETS .......................................... $147,358
=========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $45,786
Noninterest-bearing .........................$14,972
Interest-bearing ............................ 30,814
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 36,550
Noninterest-bearing ......................... $ 202
Interest-bearing ............................ 36,348
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 11,412
Securities sold under agreements to repurchase ..... 2,444
Demand notes issued to the U.S. Treasury .............. 699
Trading liabilities ................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less ...... 11,305
With a remaining maturity of more than one year .... 130
Mortgage indebtedness and obligations under capitalized
leases ............................................. 13
Bank's liability on acceptances executed and outstanding 1,089
Subordinated notes and debentures ..................... 3,411
Other liabilities ..................................... 6,778
TOTAL LIABILITIES ..................................... 139,615
-------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,664
Undivided profits and capital reserves ................ 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (607)
Cumulative foreign currency translation adjustments ... 8
TOTAL EQUITY CAPITAL .................................. 7,743
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
Exhibit 25.2
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
(Address of principal executive offices) (Zip Code)
-------------------------------------------
Trust Preferred Securities Guarantee
(Title of the indenture securities)
-----------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit
1 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 12th day of June, 1996.
CHEMICAL BANK
By /s/ P. Morabito
P. Morabito
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 3,391
Interest-bearing balances ......................... 2,075
Securities: ..........................................
Held to maturity securities............................ 3,607
Available for sale securities.......................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,264
Securities purchased under agreements to resell ... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve ... 104
Loans and leases, net of unearned income,
allowance, and reserve ............................ 71,258
Trading Assets ....................................... 25,919
Premises and fixed assets (including capitalized
leases)............................................ 1,337
Other real estate owned ............................... 30
Investments in unconsolidated subsidiaries and
associated companies............................... 187
Customer's liability to this bank on acceptances
outstanding ....................................... 1,082
Intangible assets ..................................... 419
Other assets .......................................... 7,406
-----
TOTAL ASSETS .......................................... $147,358
=========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $45,786
Noninterest-bearing .........................$14,972
Interest-bearing ............................ 30,814
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 36,550
Noninterest-bearing ......................... $ 202
Interest-bearing ............................ 36,348
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 11,412
Securities sold under agreements to repurchase ..... 2,444
Demand notes issued to the U.S. Treasury .............. 699
Trading liabilities ................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less ...... 11,305
With a remaining maturity of more than one year .... 130
Mortgage indebtedness and obligations under capitalized
leases ............................................. 13
Bank's liability on acceptances executed and outstanding 1,089
Subordinated notes and debentures ..................... 3,411
Other liabilities ..................................... 6,778
TOTAL LIABILITIES ..................................... 139,615
-------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,664
Undivided profits and capital reserves ................ 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (607)
Cumulative foreign currency translation adjustments ... 8
TOTAL EQUITY CAPITAL .................................. 7,743
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
Exhbit 25.3
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
(Address of principal executive offices) (Zip Code)
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Junior Subordinated Notes
(Title of the indenture securities)
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<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
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<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit
1 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 12th day of June, 1996.
CHEMICAL BANK
By /s/ P. Morabito
P. Morabito
Vice President
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<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 3,391
Interest-bearing balances ......................... 2,075
Securities: ..........................................
Held to maturity securities............................ 3,607
Available for sale securities.......................... 29,029
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,264
Securities purchased under agreements to resell ... 354
Loans and lease financing receivables:
Loans and leases, net of unearned income $73,216
Less: Allowance for loan and lease losses 1,854
Less: Allocated transfer risk reserve ... 104
Loans and leases, net of unearned income,
allowance, and reserve ............................ 71,258
Trading Assets ....................................... 25,919
Premises and fixed assets (including capitalized
leases)............................................ 1,337
Other real estate owned ............................... 30
Investments in unconsolidated subsidiaries and
associated companies............................... 187
Customer's liability to this bank on acceptances
outstanding ....................................... 1,082
Intangible assets ..................................... 419
Other assets .......................................... 7,406
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TOTAL ASSETS .......................................... $147,358
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<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $45,786
Noninterest-bearing .........................$14,972
Interest-bearing ............................ 30,814
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 36,550
Noninterest-bearing ......................... $ 202
Interest-bearing ............................ 36,348
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 11,412
Securities sold under agreements to repurchase ..... 2,444
Demand notes issued to the U.S. Treasury .............. 699
Trading liabilities ................................... 19,998
Other Borrowed money:
With a remaining maturity of one year or less ...... 11,305
With a remaining maturity of more than one year .... 130
Mortgage indebtedness and obligations under capitalized
leases ............................................. 13
Bank's liability on acceptances executed and outstanding 1,089
Subordinated notes and debentures ..................... 3,411
Other liabilities ..................................... 6,778
TOTAL LIABILITIES ..................................... 139,615
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EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,664
Undivided profits and capital reserves ................ 3,058
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (607)
Cumulative foreign currency translation adjustments ... 8
TOTAL EQUITY CAPITAL .................................. 7,743
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TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,358
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
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