AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 16, 1996.
SUBJECT TO AMENDMENT. REGISTRATION NOS. 333-06037
333-06037-01
333-06037-02
333-06037-03
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
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 51-6505000
GEORGIA POWER CAPITAL TRUST II DELAWARE 51-6505001
GEORGIA POWER CAPITAL TRUST III DELAWARE 51-6505002
(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>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
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)(6)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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(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
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</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 obligations of Georgia Power Company under the respective Trust
Agreements, the Subordinated Note Indenture, the related series of Junior
Subordinated Notes, the respective Guarantees and the respective Agreements
as to Expenses and Liabilities, which include the Company's 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.
(6) Previously paid.
---------------------
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PG$PCN>
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 AUGUST 16, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED AUGUST , 1996
9,000,000 PREFERRED SECURITIES
GEORGIA POWER CAPITAL TRUST I
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS 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 interests in the assets of Georgia Power Capital Trust I, a
statutory business trust created 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 interests in 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 A
% junior subordinated deferrable interest notes due June 30, 2036 (the
"Series A Junior Subordinated Notes").
The Series A 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, quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, a "Distribution
Date").
--------------------------- (continued on page S-2)
See "Risk Factors" beginning on page S-7 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. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
Price to Underwriting Proceeds to
Public(1) Discount(2)(3) Trust(2)(3)(4)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security...................... $ $ $
- -----------------------------------------------------------------------------------------------------------
Total....................................... $ $ $
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</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 A 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 $415,000.
---------------------------
The Preferred Securities are offered severally by the Underwriters, as
specified herein, subject to receipt and acceptance by them and subject to their
right to reject any order in whole or in part. It is expected that delivery of
the Preferred Securities will be made in book-entry only form through the
facilities of The Depository Trust Company on or about August , 1996 (the
"Issue Date"). ---------------------------
LEHMAN BROTHERS
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
PRUDENTIAL SECURITIES INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
August , 1996
<PG$PCN>
(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 A 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 A 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 A JUNIOR SUBORDINATED NOTES BY EXTENDING THE INTEREST PAYMENT PERIOD ON
THE SERIES A JUNIOR SUBORDINATED NOTES, AT ANY TIME AND FROM TIME TO TIME, FOR
UP TO 20 CONSECUTIVE QUARTERS (EACH, AN "EXTENSION PERIOD"). If interest
payments are so deferred, distributions on the Preferred Securities also will be
deferred and the Company will not be permitted to declare or pay any dividend or
distribution on any of its capital stock or make any guarantee payments with
respect to the foregoing, or make any payment on any debt securities issued by
the Company which rank pari passu with or junior to the Series A Junior
Subordinated Notes. 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 A 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 A Junior Subordinated Notes will bear interest, compounded quarterly, 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 A Junior Subordinated Notes at maturity or their earlier redemption.
The Series A Junior Subordinated Notes are redeemable at the option of the
Company (in whole or in part), from time to time, on or after August , 2001,
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 A 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." The Series A 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 June 30, 1996, Senior Indebtedness of the
Company aggregated approximately $3,825,000,000. If the Series A Junior
Subordinated Notes are distributed to the holders of the Preferred Securities,
the Company will use its best efforts to have the Series A 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 A 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 A 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 Series A Junior
Subordinated Notes. See "Description of the Series A 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 A 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 A 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 $25 plus accrued and unpaid
distributions thereon (including interest thereon) to the date of payment (the
"Redemption Price"), unless in connection with such dissolution, winding-up or
termination, the Series A Junior Subordinated Notes are distributed to the
holders of the Preferred Securities. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution."
The Preferred Securities initially will be represented by a global
certificate or certificates registered in the name of The Depository Trust
Company ("DTC") or its nominee. Beneficial interests in the Preferred Securities
will be shown on, and transfers thereof will be effected only through, records
maintained by Participants (as defined herein) in DTC. Except as described
herein, Preferred Securities in certificated form will not be issued in exchange
for the global certificates. See "Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust Company."
---------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NYSE, IN THE OVER THE COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
S-2
<PG$PCN>
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.
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 I is a statutory
business trust created under Delaware law solely
for the purpose of holding the Company's Series A
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............... The Chase Manhattan 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. Chase Manhattan Bank Delaware will be an
additional trustee (the "Delaware Trustee") of
the Trust. The Chase Manhattan Bank also will act
as trustee (the "Indenture Trustee") under the
Subordinated Note Indenture pursuant to which the
Series A 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 9,000,000 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 quarterly in arrears on March 31,
June 30, September 30 and December 31 of each
year, commencing on September 30, 1996 (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 A 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 A 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.
S-3
<PG$PCN>
Series A 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 A
% junior subordinated deferrable interest notes
due June 30, 2036. The Series A Junior
Subordinated Notes will be subordinate and junior
in right of payment to all 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 A
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 A 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 A Junior Subordinated
Notes by extending the interest payment period on
the Series A Junior Subordinated Notes, at any
time and from time to time, for up to 20
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 with or
subordinate to the Series A Junior Subordinated
Notes. There could be multiple Extension Periods
of varying lengths throughout the term of the
Series A Junior Subordinated Notes.
If interest payments on the Series A 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
A 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
quarterly, at a rate per annum equal to the
Securities Rate from the date of deferral to the
date of payment.
S-4
<PG$PCN>
Redemption; Distribution... The Preferred Securities are subject to mandatory
redemption upon repayment of the Series A Junior
Subordinated Notes at maturity or their earlier
redemption. The Series A Junior Subordinated
Notes are redeemable by the Company (in whole or
in part), from time to time on or after August
, 2001, or at any time in whole upon the
occurrence of a Special Event. If a partial
redemption of the Series A Junior Subordinated
Notes would result in the delisting of the
Preferred Securities, the Company may only redeem
the Series A Junior Subordinated Notes in whole.
Any partial redemption of the Series A 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."
The Company will have the right at any time to
terminate the Trust and cause the Series A Junior
Subordinated Notes to be distributed to the
holders of the Preferred Securities in
liquidation of the Trust. This right is optional
and wholly within the discretion of the Company.
Circumstances under which the Company may
determine to exercise such right could include
the occurrence of an Investment Company Act Event
or a Tax Event, adverse tax consequences to the
Company or the Trust that are not within the
definition of a Tax Event because they do not
result from an amendment or change described in
such definition, and changes in the accounting
requirements applicable to the Preferred
Securities as described under "Accounting
Treatment." See "Description of the Preferred
Securities -- 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 A Junior Subordinated
Notes, (ii) interest payable to the Trust on the
Series A 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
S-5
<PG$PCN>
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 A Junior
Subordinated Notes, each Preferred Security shall
be entitled to receive a liquidation amount of
$25 plus accrued and unpaid distributions thereon
(including interest thereon) to the date of
payment.
S-6
<PG$PCN>
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 A JUNIOR SUBORDINATED NOTES
No amounts will be available to make payments on the Preferred Securities
except from payments made on the Series A Junior Subordinated Notes. The
obligations of the Company under the Series A Junior Subordinated Notes are
subordinate and junior in right of payment to all present and future Senior
Indebtedness of the Company. At June 30, 1996, Senior Indebtedness of the
Company aggregated approximately $3,825,000,000. There are no terms in the
Preferred Securities, the Series A Junior Subordinated Notes or the Guarantee
that limit the Company's ability to incur additional indebtedness, including
indebtedness that ranks senior to the Series A 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 A 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 A
Junior Subordinated Notes for a period of up to 20 consecutive quarters (each,
an "Extension Period"), but not beyond the stated maturity of the Series A
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 20 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 A Junior
Subordinated Notes. Deferred installments of interest on the Series A Junior
Subordinated Notes will bear interest, compounded quarterly, 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 with or subordinate to the
Series A Junior Subordinated Notes. See "Description of the Preferred
Securities -- Distributions" and "Description of the Series A 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-7
<PG$PCN>
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 A
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 A 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 A 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 A 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 A 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 A 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 A 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 A Junior Subordinated Notes, the Company
would be unable to deduct interest on the Series A 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 A 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 A 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.
S-8
<PG$PCN>
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 A
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 A Junior
Subordinated Notes at any time on or after August , 2001 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 A Junior Subordinated Notes and may receive Series A
Junior Subordinated Notes upon the termination of the Trust, prospective
purchasers of Preferred Securities are making an investment decision with regard
to the Series A Junior Subordinated Notes and should carefully review all the
information regarding the Series A Junior Subordinated Notes contained herein.
See "Description of the Preferred Securities -- Special Event Redemption or
Distribution" and "Description of the Series A Junior Subordinated Notes."
GEORGIA POWER CAPITAL TRUST I
The Trust is a statutory business trust created 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 A Junior
Subordinated Notes, and (iii) engaging in only those other activities necessary,
appropriate, convenient or incidental thereto. The Trust has a term of
approximately 45 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 Subordinated
Note Indenture 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. The Chase Manhattan Bank will serve as Property Trustee and will hold
legal title to the Series A Junior Subordinated Notes issued by the Company on
behalf of the Trust and the holders of the Trust Securities. Chase Manhattan
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."
S-9
<PG$PCN>
The Property Trustee will hold legal title to the Series A 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 A 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 A 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 Chase
Manhattan 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.
CAPITALIZATION
The following table sets forth the capitalization of the Company as of June
30, 1996, and as adjusted to reflect the issuance of the $400,000,000 of
Preferred Securities covered by the accompanying Prospectus, assuming
application of a portion of the proceeds of such Preferred Securities to the
redemption of $325,000,000 of outstanding preferred stock of the Company. The
following data is qualified in its entirety by reference to and, therefore,
should be read together with the detailed information and financial statements
appearing in the documents incorporated herein by reference. See also "Selected
Information" in the accompanying Prospectus.
<TABLE>
<CAPTION>
AS OF JUNE 30, 1996
---------------------------
ACTUAL AS ADJUSTED
------ ----------------
(MILLIONS, EXCEPT
PERCENTAGES)
<S> <C> <C> <C>
Common Stock Equity............................................... $4,324 $4,324 51.3%
Cumulative Preferred Stock........................................ 618 293 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(1)........................................................ -- 400 4.7
Long-Term Debt.................................................... 3,311 3,311 39.3
------ ------ -----
Total, excluding amounts due within one year of $576
million..................................................... $8,353 $8,428 100.0%
====== ====== =====
</TABLE>
- ---------------
(1) As described herein and in the accompanying 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 $412,400,000,
and upon redemption of such debt, the related Preferred Securities will be
mandatorily redeemable.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as a subsidiary
of the Company and, accordingly, the accounts of the Trust will be included in
the consolidated financial statements of the
S-10
<PG$PCN>
Company. The Preferred Securities will be presented as a separate line item in
the consolidated balance sheet of the Company, and appropriate disclosures
concerning the Preferred Securities, the Guarantee and the Series A Junior
Subordinated Notes will be included in the notes to the consolidated financial
statements. For financial reporting purposes, the Company will record
distributions payable on the Preferred Securities as an expense.
USE OF PROCEEDS
The Trust will invest the proceeds received from the sale of the Preferred
Securities in Series A Junior Subordinated Notes. The net proceeds received by
the Company from such investment (estimated to be approximately $217,500,000)
will be used to repay a portion of its outstanding short-term debt which
aggregated approximately $291,000,000 as of August 15, 1996, and of which
approximately $75,000,000 was incurred in connection with the redemption in
August 1996 of 750,000 shares ($75,000,000 aggregate stated value) of the
Company's $7.80 Preferred Stock. The outstanding short-term debt of the Company
was incurred for working capital purposes and currently consists of uncommitted
bank loans and commercial paper evidenced by notes having maturities from one
week to 20 days and bearing interest at rates ranging from 5.19% to 5.42%.
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
Subordinated Note Indenture 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 Series A 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 A Junior Subordinated Notes. In addition, a holder of Preferred
Securities may institute a legal proceeding directly against the Company,
without first instituting a legal proceeding against the Property Trustee or any
other person or entity, for enforcement of payment to such holder of principal
of or interest on the Series A Junior Subordinated Notes having a principal
amount equal to the aggregate stated liquidation amount of the Preferred
Securities of such holder on or after the due dates specified in the Series A
Junior Subordinated
S-11
<PG$PCN>
Notes. The above mechanisms and obligations, together with the Company's
obligations under the Agreement as to Expenses and Liabilities, constitute a
full and unconditional guarantee by the Company of payments due on the Preferred
Securities. See "-- Voting Rights" below.
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 quarterly in arrears on March 31, June 30,
September 30 and December 31 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 a Saturday or
Sunday, a day on which banks in New York City are authorized or obligated by law
or executive order to remain closed or a day on which the principal corporate
trust office of the Property Trustee or the Indenture Trustee is closed for
business.
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 A Junior Subordinated Notes by extending the
interest payment period from time to time on the Series A Junior Subordinated
Notes (each, an "Extension Period") which, if exercised, would defer quarterly
distributions on the Preferred Securities during any such extended interest
payment period. Deferred installments of interest on the Series A Junior
Subordinated Notes will bear interest, compounded quarterly, 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 A
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 A Junior Subordinated Notes. See "Description
of the Series A Junior Subordinated Notes."
REDEMPTION
The Preferred Securities are subject to mandatory redemption upon repayment
of the Series A Junior Subordinated Notes at maturity or their earlier
redemption. The Series A Junior Subordinated Notes will mature on June 30, 2036
and may be redeemed, in whole or in part, at the option of the Company, at any
time on or after August , 2001 or at any time in whole upon the occurrence of
a Special Event. Upon the repayment of the Series A 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 A Junior
Subordinated Notes -- Optional Redemption." If a partial redemption of the
Series A Junior Subordinated Notes would result in the delisting of the
Preferred Securities, the Company may only redeem the Series A 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
S-12
<PG$PCN>
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 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 A 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 A Junior Subordinated Notes, (ii) interest payable to the Trust on the
Series A 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,
after satisfaction of liabilities to creditors of the Trust, if any, cause the
Series A Junior Subordinated Notes to be distributed to the holders of the
Preferred Securities in liquidation of the Trust. See "-- Liquidation
Distribution Upon Dissolution" below. This right is optional and wholly within
the discretion of the Company. Circumstances under which the Company may
determine to exercise such right could include the occurrence of an Investment
Company Act Event or a Tax Event, adverse tax consequences to the Company or the
Trust that are not within the definition of a Tax Event because they do not
result from an amendment or change described in such definition, and changes in
the accounting requirements applicable to the Preferred Securities as described
under "Accounting Treatment."
If Series A Junior Subordinated Notes are distributed to the holders of the
Preferred Securities, the Company will use its best efforts to have the Series A
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 A 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 A 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 A 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
S-13
<PG$PCN>
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 A 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 A 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.
REDEMPTION PROCEDURES
In the event that fewer than all of the Trust Securities are to be
redeemed, then the aggregate liquidation amount of 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 A 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 A
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 the initial 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.
S-14
<PG$PCN>
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 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
S-15
<PG$PCN>
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 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 December 31,
2041, or earlier upon (i) the occurrence of a Bankruptcy Event (as defined in
the Trust Agreement) in respect of the Company, dissolution or liquidation of
the Company, or dissolution of the Trust pursuant to a judicial decree; (ii) the
delivery of written direction to the Property Trustee by the Company, as
Depositor, at any time (which direction is optional and wholly within the
discretion of the Company, as Depositor) to terminate the Trust and distribute
the Series A Junior Subordinated Notes to the holders of the Preferred
Securities in liquidation of the Trust (see "-- Special Event Redemption or
Distribution" above); or (iii) the payment at maturity or redemption of all of
the Series A 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 A
Junior Subordinated Notes, unless in the case of an event described in clause
(i) 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 $25 per Trust Security plus accrued and unpaid
distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then subject to the next succeeding sentence, the
amounts payable directly by the Trust on the Trust Securities shall be paid on a
pro rata basis. The holder of the Common Securities will be entitled to receive
distributions upon any such dissolution pro rata with the holders of the
Preferred Securities, except that if a Subordinated Note Indenture Event of
Default has occurred and is continuing, the holders of Preferred Securities
shall have a preference over the holders of Common Securities.
EVENTS OF DEFAULT
Any one of the following events constitutes an "Event of Default" under the
Trust Agreement ("Trust Agreement Event of Default") with respect to the Trust
Securities issued thereunder (whatever the reason for such Event of Default, and
whether it shall be voluntary or involuntary or be effected by operation of law
or
S-16
<PG$PCN>
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 ("Subordinated Note Indenture Event of
Default") (see "Description of the Junior Subordinated Notes -- Events of
Default" in the accompanying Prospectus); or
(ii) default by the Trust 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 Trust 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 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 Trust.
Within 90 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 A Junior
Subordinated Notes. If the Property Trustee fails to enforce its rights under
the Series A Junior Subordinated Notes, a holder of Preferred Securities may, to
the fullest 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. Notwithstanding the foregoing, a holder of Preferred Securities may
institute a legal proceeding directly against the Company, without first
instituting a legal proceeding against the Property Trustee or any other person
or entity, for enforcement of payment to such holder of principal of or interest
on the Series A Junior Subordinated Notes having a principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities of such holder
on or after the due dates specified in the Series A Junior Subordinated Notes.
See "Relationship Among the Preferred Securities, the Series A Junior
Subordinated Notes and the Guarantee" herein and "Description of the
Guarantees -- Events of Default" in the accompanying Prospectus.
Unless a Subordinated Note Indenture 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 Subordinated Note Indenture 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 Subordinated Note Indenture 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."
S-17
<PG$PCN>
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 A 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 A 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 A 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 A Junior Subordinated Notes, where
such consent shall be required, or to any other action, as the holder of the
Series A Junior Subordinated Notes, under the Subordinated Note Indenture,
without, in each 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 A 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 A 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
S-18
<PG$PCN>
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 a Subordinated Note Indenture Event of
Default 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 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 substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation or
replacement, the Company has received an opinion of counsel to the effect that
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of the Trust
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation or replacement, neither the
Trust nor such successor entity will be required to register as an investment
company under the 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
S-19
<PG$PCN>
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 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.
The Chase Manhattan 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 The Chase Manhattan
Bank. The Chase Manhattan 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.
S-20
<PG$PCN>
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 Series A 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 Administrative
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 A JUNIOR SUBORDINATED NOTES
Set forth below is a description of the specific terms of the Series A
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).
GENERAL
The Series A Junior Subordinated Notes will be issued as a series of Junior
Subordinated Notes under the Subordinated Note Indenture. The Series A Junior
Subordinated Notes will be limited in aggregate principal amount to
$232,000,000, such amount being the approximate aggregate liquidation amount of
the Trust Securities.
The entire principal amount of the Series A Junior Subordinated Notes will
mature and become due and payable, together with any accrued and unpaid interest
thereon, including Additional Interest, if any, on June 30, 2036. The Series A
Junior Subordinated Notes are not subject to any sinking fund provision.
The terms of the Series A Junior Subordinated Notes correspond to those of
the Preferred Securities, as described herein.
OPTIONAL REDEMPTION
The Company shall have the right to redeem the Series A Junior Subordinated
Notes, in whole or in part, without premium, from time to time, on or after
August , 2001, or at any time in whole upon the occurrence of a Special Event
as described under "Description of the Preferred Securities -- Special Event
Redemption or Distribution," upon not less than 30 nor more than 60 days'
notice, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest, including Additional Interest, if
any, to the Redemption Date. If a partial redemption of the Series A Junior
Subordinated Notes would result in the delisting of the Preferred Securities,
the Company may only redeem the Series A Junior Subordinated Notes in whole.
INTEREST
Each Series A Junior Subordinated Note shall bear interest at the
Securities Rate from the Issue Date, payable quarterly in arrears on March 31,
June 30, September 30 and December 31 of each year to the person in whose name
such Series A Junior Subordinated Note is registered at the close of business on
the fifteenth
S-21
<PG$PCN>
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 A 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 A Junior Subordinated Notes by
extending the interest payment period for up to 20 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
quarterly); 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 A 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 20 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 A Junior Subordinated Notes.
The Company shall give the holder or holders of the Series A Junior
Subordinated Notes and the Indenture Trustee notice of its selection or
extension of an Extension Period at least one Business Day prior to 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 A 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 A 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 A JUNIOR SUBORDINATED NOTES AND THE GUARANTEE
As long as payments of interest and other payments are made when due on the
Series A 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 A 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 A
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
S-22
<PG$PCN>
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 A 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 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 A
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 A Junior
Subordinated Notes, including proceeding directly against the Company to enforce
the Series A Junior Subordinated Notes. If the Property Trustee fails to enforce
its rights under the Series A 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 A Junior Subordinated Notes without first instituting
any legal proceeding against the Property Trustee or any other person or entity.
Notwithstanding the foregoing, a holder of Preferred Securities may institute a
legal proceeding directly against the Company, without first instituting a legal
proceeding against the Property Trustee or any other person or entity, for
enforcement of payment to such holder of principal of or interest on the Series
A Junior Subordinated Notes having a principal amount equal to the aggregate
stated liquidation amount of the Preferred Securities of such holder on or after
the due dates specified in the Series A Junior Subordinated Notes.
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. In addition, 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.
The Guarantee, the Subordinated Note Indenture, the Series A 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, unless the Series A Junior Subordinated Notes are distributed in
connection therewith, 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 A 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 A 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 A Junior Subordinated
Notes provide that no payments may be made in respect of the Series A Junior
Subordinated Notes until such Senior Indebtedness has been paid in full or any
payment default thereunder has been cured or waived. Failure to
S-23
<PG$PCN>
make required payments on the Series A Junior Subordinated Notes would
constitute an Event of Default under the Subordinated Note Indenture except that
failure to make interest payments on the Series A Junior Subordinated Notes will
not be an Event of Default during an Extension Period; provided, however, that
any Extension Period may not exceed 20 consecutive quarters or extend beyond the
stated maturity of the Series A 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 owner of a
pro rata undivided interest in the Series A 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 A 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 A 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 A Junior Subordinated
Notes, the Holders will be required to include in income their pro rata share of
OID accruing on the Series A 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 A Junior
Subordinated Notes under a formula based upon the quarterly compounding of
interest at a rate that provides for a constant yield to maturity. If (as
expected) the issue price of the Series A Junior Subordinated Notes equals the
stated principal amount of such Notes, the amount of OID accruing during each
quarterly interest period will be approximately the same as the amount of stated
interest accruing during such period on the Series A Junior Subordinated Notes.
S-24
<PG$PCN>
The amount of OID on a Series A Junior Subordinated Note will equal the
excess of the "stated redemption price at maturity" over the "issue price" of
the Series A Junior Subordinated Note. The issue price of each Series A Junior
Subordinated Note is expected to equal the stated principal amount of such Note.
Because the terms of the Series A Junior Subordinated Notes permit the Company
to suspend payments of interest on the Notes for up to 20 consecutive quarters,
the stated redemption price at maturity of the Series A Junior Subordinated
Notes will equal the aggregate of all payments due on the Series A Junior
Subordinated Notes, whether designated as principal or interest. Accordingly,
the quarterly interest payments on the Series A 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 A Junior Subordinated Note is
issued, and if (as expected) the issue price equals the stated principal amount
of the Series A Junior Subordinated Notes, the OID will equal the total amount
of interest that will be payable (assuming no redemption before maturity) on the
Series A 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 A
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 quarterly 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 A 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 A 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 A 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 A Junior Subordinated Notes. However, if a Holder acquires
Preferred Securities for an amount greater than the adjusted issue price of the
Series A Junior Subordinated Notes (i.e., at an acquisition premium), such
Holder's daily portion of OID with respect to the Series A Junior Subordinated
Notes will be reduced by an allocable portion of the acquisition premium.
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 A 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 A Junior Subordinated Notes
multiplied by (ii) the number of complete years to maturity of such Series A
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 A 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 A 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 A
Junior Subordinated Notes (including redemptions thereof), a Holder may make an
election (which may not be revoked without the
S-25
<PG$PCN>
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 A 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 A Junior Subordinated Notes between the portion of the
Series A Junior Subordinated Notes redeemed and retained by the Holder in order
to determine gain or loss and future accruals of OID.
RECEIPT OF SERIES A JUNIOR SUBORDINATED NOTES UPON LIQUIDATION OF THE TRUST
As described under "Description of the Preferred Securities -- Special
Event Redemption or Distribution," Series A 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 A 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 A Junior Subordinated Notes so received in liquidation of the Trust would
include the period for which the Preferred Securities were held by such Holder.
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 A 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
S-26
<PG$PCN>
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 A Junior
Subordinated Notes, the Company would be unable to deduct interest on the Series
A 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 A 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 A 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-27
<PG$PCN>
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 Lehman Brothers Inc. 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>
Lehman Brothers Inc.........................................
Dean Witter Reynolds Inc....................................
A.G. Edwards & Sons, Inc....................................
Goldman, Sachs & Co.........................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated..........
Prudential Securities Incorporated..........................
The Robinson-Humphrey Company, Inc..........................
---------
Total............................................. 9,000,000
=========
</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 A 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-28
<PG$PCN>
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........... Chase Manhattan 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......... March 31, June 30, September 30 and December 31 of
each year.
Extension Period........... Any period during which interest is not paid on the
Series A 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 A 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, The
Chase Manhattan Bank.
Indenture Trustee.......... The trustee under the Subordinated Note Indenture;
initially, The Chase Manhattan Bank.
Issue Date................. The date set forth on the cover page on which the
Series A 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."
NYSE....................... New York Stock Exchange.
S-29
<PG$PCN>
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 The Chase Manhattan 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 $25
per Preferred Security, and set forth on the cover
page of this Prospectus Supplement.
Securities Trustees........ The Property Trustee, Administrative Trustees and
Delaware Trustee.
Senior Indebtedness........ Indebtedness of the Company described hereunder
under "Description of the Junior Subordinated
Notes -- Subordination" in the accompanying
Prospectus.
Series A Junior
Subordinated Notes......... The Series A % junior subordinated deferrable
interest notes of the Company due June 30, 2036.
Special Event.............. A Tax Event or Investment Company Act Event.
Subordinated Note
Indenture.................. The indenture pursuant to which the Company's
Series A Junior Subordinated Notes will be issued.
Subordinated Note Indenture
Event of Default......... As described under "Description of the Junior
Subordinated Notes -- Events of Default" in the
accompanying Prospectus.
Tax Event.................. An event of the type described in "Description of
the Preferred Securities -- Special Event
Redemption or Distribution."
Trust...................... Georgia Power Capital Trust I, a Delaware business
trust that will issue the Trust Securities.
Trust Agreement............ The agreement pursuant to which the Trust is
organized as it may be amended and restated from
time to time.
Trust Agreement Event of
Default.................. As described under "Description of the Preferred
Securities -- Events of Default."
Trust Securities........... The Preferred Securities and the Common Securities.
S-30
<PG$PCN>
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 AUGUST 16, 1996
PROSPECTUS
$400,000,000
GEORGIA POWER CAPITAL TRUST I
GEORGIA POWER CAPITAL TRUST II
GEORGIA POWER CAPITAL TRUST III
TRUST PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED, AS 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 created 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") representing common undivided beneficial interests in
the assets of the respective Trusts. 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.
As described herein, the Company will, through each Guarantee, the
Subordinated Note Indenture, the Junior Subordinated Notes of the related
series, the related Trust Agreement and the related Agreement as to Expenses and
Liabilities, fully and unconditionally guarantee all of each Trust's obligations
with respect to its Preferred Securities.
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
$400,000,000.
The Prospectus Supplement relating to any series of Preferred Securities
will contain information concerning certain United States federal income tax
considerations, if applicable to such Preferred Securities.
---------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------------
The Preferred Securities may be sold directly, through agents, underwriters
or dealers as designated from time to time, or through a combination of such
methods. See "Plan of Distribution." If agents or any underwriters or dealers
are involved in the sale of Preferred Securities in respect of which this
Prospectus is being delivered, the names of such agents, underwriters or dealers
and any applicable commissions or discounts will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Preferred
Securities.
---------------------------
August , 1996
<PG$PCN>
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. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants including the Company that file electronically at
http://www.sec.gov. 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 Reports on Form 10-Q for the quarters ended
March 31, 1996 and June 30, 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
<PG$PCN>
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
----------------------------------------------- JULY 31,
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 $4,514
Income Before Interest Charges........... $1,006 $1,003 $1,033 $925 $957 $932
Net Income After Dividends on Preferred
Stock.................................. $475 $521 $570 $526 $609 $620
Ratio of Earnings to Fixed Charges(3).... 2.85 3.15 3.46 3.65 4.51 4.98
Ratio of Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-
Income Tax Basis)(4)................... 2.36 2.59 2.88 2.99 3.60 3.90
</TABLE>
3
<PG$PCN>
<TABLE>
<CAPTION>
CAPITALIZATION AS OF JUNE
30, 1996
---------------------------
ACTUAL AS ADJUSTED(5)
------ ----------------
(MILLIONS, EXCEPT
PERCENTAGES)
<S> <C> <C> <C>
Common Stock Equity............................................... $4,324 $4,324 51.3%
Cumulative Preferred Stock........................................ 618 293 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 4.7
Long-Term Debt.................................................... 3,311 3,311 39.3
------ ------ -----
Total, excluding amounts due within one year of $576 million.... $8,353 $8,428 100.0%
====== ====== =====
</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 July 31, 1996,
reflect charges of approximately $55,000,000, $8,000,000 and $22,000,000,
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 a portion of the proceeds of the
Preferred Securities to the redemption of $325,000,000 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 $412,400,000, and upon redemption
of such debt, the related Preferred Securities will be mandatorily
redeemable.
GEORGIA POWER COMPANY
The Company is a wholly-owned subsidiary of The Southern Company, a holding
company registered under the Public Utility Holding Company Act of 1935, as
amended. The Company was incorporated under the laws of the State of Georgia on
June 26, 1930. It is engaged in the generation and purchase of electric energy
and the transmission, distribution and sale of such energy within the State of
Georgia at retail in over 600 communities (including Athens, Atlanta, Augusta,
Columbus, Macon, Rome and Valdosta), as well as in rural areas, and at wholesale
currently to 39 electric cooperative associations through Oglethorpe Power
Corporation, a corporate cooperative of electric membership corporations in
Georgia, and to 50 municipalities, 48 of which are served through the Municipal
Electric Authority of Georgia, a public corporation and an instrumentality of
the State of Georgia. The Company and one of its affiliates, Alabama Power
Company, each owns 50% of the common stock of Southern Electric Generating
Company ("SEGCO"). SEGCO owns electric generating units near Wilsonville,
Alabama. The principal executive offices of the Company are located at 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308, and the telephone number is (404)
526-6526.
4
<PG$PCN>
THE TRUSTS
Each Trust is a statutory business trust created 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 Agreement
will be qualified as an indenture under the Trust Indenture Act of 1939, as
amended (the "1939 Act"). 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.
Each Trust's business and affairs will be conducted by its trustees, which
shall be appointed by the Company as the holder of the Common Securities: two
officers of the Company as Administrative Trustees; The Chase Manhattan Bank as
Property Trustee; and Chase Manhattan Bank Delaware as Delaware Trustee. The
Property Trustee of each Trust will act as the indenture trustee with respect to
such Trust for purposes of compliance with the provisions of the 1939 Act.
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.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trusts will be treated as
subsidiaries of the Company and, accordingly, the accounts of the Trusts will be
included in the consolidated financial statements of the Company. The Preferred
Securities will be presented as a separate line item in the consolidated balance
sheet of the Company, and appropriate disclosures concerning the Preferred
Securities, the Guarantees and the Junior Subordinated Notes will be included in
the notes to the consolidated financial statements. For financial reporting
purposes, the Company will record distributions payable on the Preferred
Securities as an expense.
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 July 31, 1996, "Operating Revenues", "Income
Before Interest Charges", and "Net Income After Dividends on Preferred Stock"
were $4,514,000,000, $932,000,000 and $620,000,000, respectively. In the opinion
of the management of the Company, the above amounts for the twelve months ended
July 31, 1996 reflect all adjustments (which were only normal recurring
adjustments) necessary to present fairly the results of operations for such
period, subject to the effect of such adjustments, if any, as might have been
required had the outcome of the uncertainty with respect to the actions of the
regulators regarding the recoverability of the Company's investment in the Rocky
Mountain hydoelectric project been known. The "Ratio of Earnings to Fixed
Charges" and the "Ratio of Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis)" for the twelve months ended July 31, 1996
were 4.98 and 3.90, respectively.
5
<PG$PCN>
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, 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. The Chase Manhattan 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
6
<PG$PCN>
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 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 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
7
<PG$PCN>
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. 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.
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.
The Chase Manhattan 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 The Chase Manhattan
Bank. The Chase Manhattan 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.
THE AGREEMENTS AS TO EXPENSES AND LIABILITIES
Pursuant to an Agreement as to Expenses and Liabilities to be entered into
by the Company under each Trust Agreement, the Company will irrevocably and
unconditionally guarantee to each person or entity to whom each Trust becomes
indebted or liable the full payment of any indebtedness, expenses or liabilities
of such Trust, other than obligations of such Trust to pay to the holders of the
related Preferred Securities or other similar interests in such Trust the
amounts due such holders pursuant to the terms of such Preferred Securities or
such other similar interests, as the case may be.
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 August 1, 1996, between the Company and
The Chase Manhattan 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
8
<PG$PCN>
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 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 terms of each series of Junior Subordinated Notes
will correspond to those of the related Preferred Securities as described in the
Prospectus Supplement relating to such Preferred Securities.
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
9
<PG$PCN>
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 June 30, 1996,
Senior Indebtedness of the Company aggregated approximately $3,825,000,000.
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 quarterly, 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
10
<PG$PCN>
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
(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
11
<PG$PCN>
paid or advanced by the Indenture Trustee, including reasonable compensation and
expenses of the Indenture Trustee.
A holder of Preferred Securities may institute a legal proceeding directly
against the Company, without first instituting a legal proceeding against the
Property Trustee or any other person or entity, for enforcement of payment to
such holder of principal of or interest on the Junior Subordinated Notes of the
related series having a principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities of such holder on or after the
due dates specified in the Junior Subordinated Notes of such series.
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 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
12
<PG$PCN>
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.
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.
The Chase Manhattan 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 The Chase Manhattan
Bank. The Chase Manhattan 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.
13
<PG$PCN>
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.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE JUNIOR SUBORDINATED NOTES AND THE GUARANTEES
As long as payments of interest and other payments are made when due on
each series of Junior Subordinated Notes, such payments will be sufficient to
cover distributions and payments due on the related Trust Securities primarily
because (i) the aggregate principal amount of each series of Junior Subordinated
Notes will be equal to the sum of the aggregate stated liquidation amount of the
related Trust Securities; (ii) the interest rate and interest and other payment
dates on each series of Junior Subordinated Notes will match the distribution
rate and distribution and other payment dates for the related Preferred
Securities; (iii) the Company shall pay for all costs and expenses of each Trust
pursuant to the Agreements as to Expenses and Liabilities; and (iv) each Trust
Agreement provides that the Securities Trustees thereunder 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) will be
guaranteed by the Company as and to the extent set forth under "Description of
the Guarantees." If the Company does not make interest payments on any series of
Junior Subordinated Notes, it is not expected that the related Trust will have
sufficient funds to pay distributions on its Preferred Securities. Each
Guarantee is a guarantee from the time of its issuance, but does not apply to
any payment of distributions unless and until the related 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 any series of
Junior Subordinated Notes when due (taking into account any extension period as
described in the applicable Prospectus Supplement), the Trust Agreement provides
a mechanism whereby the holders of the related Preferred Securities may appoint
a substitute Property Trustee. Such holders may also direct the Property Trustee
to enforce its rights under the Junior Subordinated Notes of such series,
including proceeding directly against the Company to enforce such Junior
Subordinated Notes. If the Property Trustee fails to enforce its rights under
any series of Junior Subordinated Notes, to the fullest extent permitted by
applicable law, any holder of related Preferred Securities may institute a legal
proceeding directly against the Company to enforce the Property Trustee's rights
under such series of Junior Subordinated Notes without first instituting any
legal proceeding against the Property Trustee or any other person or entity.
Notwithstanding the foregoing, a holder of Preferred Securities may institute a
legal proceeding directly against the Company, without first instituting a legal
proceeding against the Property Trustee or any other person or entity, for
enforcement of payment to such holder of principal of or interest on Junior
Subordinated Notes of the related series having a principal amount equal to the
aggregate stated liquidation amount of the Preferred Securities of such holder
on or after the due dates specified in the Junior Subordinated Notes of such
series.
If the Company fails to make payments under any Guarantee, such Guarantee
provides a mechanism whereby the holders of the Preferred Securities to which
such Guarantee relates may direct the Guarantee Trustee to enforce its rights
thereunder. In addition, any holder of Preferred Securities may institute a
legal proceeding directly against the Company to enforce the Guarantee Trustee's
rights under the related Guarantee without first instituting a legal proceeding
against the Guarantee Trustee or any other person or entity.
14
<PG$PCN>
Each Guarantee, the Subordinated Note Indenture, the Junior Subordinated
Notes of the related series, the related Trust Agreement and the related
Agreement as to Expenses and Liabilities, as described above, constitute a full
and unconditional guarantee by the Company of the payments due on the related
series of Preferred Securities.
Upon any voluntary or involuntary dissolution, winding-up or termination of
any Trust, unless Junior Subordinated Notes of the related series are
distributed in connection therewith, the holders of Preferred Securities of such
Trust will be entitled to receive, out of assets legally available for
distribution to holders, a liquidation distribution in cash as described in the
applicable Prospectus Supplement. Upon any voluntary or involuntary liquidation
or bankruptcy of the Company, the Property Trustee, as holder of the related
series of 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 each Guarantee and has agreed to pay for all costs,
expenses and liabilities of each Trust (other than the Trust's obligations to
holders of the Preferred Securities) pursuant to the related Agreement as to
Expenses and Liabilities, the positions of a holder of Preferred Securities and
a holder of Junior Subordinated Notes of the related series 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 Junior Subordinated Notes
provide that no payments may be made in respect of the 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
Junior Subordinated Notes of any series would constitute an Event of Default
under the Subordinated Note Indenture with respect to the Junior Subordinated
Notes of such series except that failure to make interest payments on the Junior
Subordinated Notes of such series will not be an Event of Default during an
extension period as described in the applicable Prospectus Supplement.
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 Junior Subordinated Notes of any series, the
Company would be unable to deduct interest on the Junior Subordinated Notes of
such series. 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 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
Junior Subordinated Notes. Such a change could give rise to certain events which
may permit the Company to cause a redemption of the Preferred Securities or a
determination by the Company to terminate a Trust and cause the Junior
Subordinated Notes of the related series to be distributed to the holders of the
Preferred Securities of such Trust in liquidation thereof, all as described in
the applicable Prospectus Supplement
15
<PG$PCN>
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.
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 Trusts by
Richards, Layton & Finger, Wilmington, Delaware, special Delaware counsel to the
Company and the Trusts. 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 and June 30, 1996 and 1995, included in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996
and June 30, 1996, respectively, 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 reports
thereon state that they did not audit and they do not express an opinion on such
interim financial information. Accordingly, the degree of reliance on their
reports 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 reports on
the unaudited interim financial information because these
16
<PG$PCN>
reports are not "reports" or "parts" 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.
17
<PG$PCN>
- ------------------------------------------------------
- ------------------------------------------------------
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 I 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 I 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-7
Georgia Power Capital Trust I............. S-9
Capitalization............................ S-10
Accounting Treatment...................... S-10
Use of Proceeds........................... S-11
Description of the Preferred Securities... S-11
Description of the Series A Junior
Subordinated Notes...................... S-21
Relationship Among the Preferred
Securities, the Series A Junior
Subordinated Notes and the Guarantee.... S-22
Certain Federal Income Tax
Considerations.......................... S-24
Underwriting.............................. S-28
Legal Opinions............................ S-28
Glossary.................................. S-29
PROSPECTUS
Available Information..................... 2
Incorporation of Certain Documents by
Reference............................... 2
Selected Information...................... 3
Georgia Power Company..................... 4
The Trusts................................ 5
Accounting Treatment...................... 5
Use of Proceeds........................... 5
Recent Results of Operations.............. 5
Description of the Preferred Securities... 6
Description of the Guarantees............. 6
Description of the Junior Subordinated
Notes................................... 8
Relationship Among the Preferred
Securities, the Junior Subordinated
Notes and the Guarantees................ 14
Possible Tax Law Changes.................. 15
Plan of Distribution...................... 16
Legal Matters............................. 16
Experts................................... 16
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
9,000,000 PREFERRED SECURITIES
GEORGIA POWER
CAPITAL TRUST I
% TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT
$25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY
GUARANTEED, AS SET FORTH HEREIN, BY
GEORGIA POWER
COMPANY
A SUBSIDIARY OF THE SOUTHERN COMPANY
---------------------------
PROSPECTUS SUPPLEMENT
August , 1996
---------------------------
LEHMAN BROTHERS
DEAN WITTER REYNOLDS INC.
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
PRUDENTIAL SECURITIES INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, INC.
- ------------------------------------------------------
- ------------------------------------------------------
<PG$PCN>
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)........................ 9,500 9,500
*Listing fees of New York Stock Exchange....................... 86,300 --
Printing and preparation of registration statement, prospectus,
etc.......................................................... 30,000 10,000
Rating fees --
Moody's Investors Service, Inc............................... 40,000 40,000
Standard & Poor's Corporation................................ 42,000 --
Duff and Phelps, Inc......................................... 25,000 25,000
Services of Southern Company Services, Inc..................... 30,000 15,000
Fees and expenses of counsel................................... 40,000 25,000
Blue sky fees and expenses..................................... 3,500 3,500
Fees of accountants, Arthur Andersen LLP....................... 42,000 24,000
Miscellaneous, including telephone charges and traveling
expenses..................................................... 14,000 8,000
-------- ----------
Total................................................ $500,232 $ 160,000
======== ========
</TABLE>
- ---------------
* The Prospectus Supplement will reflect actual filing and listing fees based
upon the amount of the related offering.
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
<PG$PCN>
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
<PG$PCN>
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 The Chase
Manhattan 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.**
4.3-A(1) -- Certificate of Amendment to Certificate of Trust of Georgia Power Capital Trust
I.
4.3-B(1) -- Certificate of Amendment to Certificate of Trust of Georgia Power Capital Trust
II.
4.3-C(1) -- Certificate of Amendment to 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-A -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust I.
4.5-B -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust II.
4.5-C -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust III.
4.6-A -- Form of Preferred Security of Georgia Power Capital Trust I (included in Exhibit
4.5-A above).
4.6-B -- Form of Preferred Security of Georgia Power Capital Trust II (included in
Exhibit 4.5-B above).
4.6-C -- Form of Preferred Security of Georgia Power Capital Trust III (included in
Exhibit 4.5-C above).
4.7 -- Form of Junior Subordinated Note (included in Exhibit 4.2 above).
4.8-A -- Form of Guarantee relating to Georgia Power Capital Trust I.
4.8-B -- Form of Guarantee relating to Georgia Power Capital Trust II.
4.8-C -- Form of Guarantee relating to Georgia Power Capital Trust III.
4.9-A -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust I (included in Exhibit 4.5-A above).
4.9-B -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust II (included in Exhibit 4.5-B above).
4.9-C -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust III (included in Exhibit 4.5-C above).
5.1-A -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust I.
5.1-B -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust II.
5.1-C -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust III.
5.2-A -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust I.
5.2-B -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust II.
5.2-C -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust
III.
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-A, 5.1-B and 5.1-C
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-A, 5.2-B and 5.2-C
above).
</TABLE>
II-3
<PG$PCN>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ---------
<C> <C> <S>
24.1 -- Powers of Attorney and Resolution.**
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Indenture Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust I.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust I.
25.4 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust II.
25.5 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust II.
25.6 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust III.
25.7 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust III.
</TABLE>
- ---------------
* To be subsequently filed or incorporated by reference.
** Previously filed.
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
II-4
<PG$PCN>
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 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.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
497(h) under the Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-5
<PG$PCN>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
COMPANY CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF
THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO
THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 16TH
DAY OF AUGUST, 1996.
GEORGIA POWER COMPANY
By: H. ALLEN FRANKLIN
President and Chief Executive
Officer
By:WAYNE BOSTON,
Attorney-in-fact
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL TRUST I CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF
GEORGIA, ON THE 16TH DAY OF AUGUST, 1996.
GEORGIA POWER CAPITAL TRUST I
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, GEORGIA POWER
CAPITAL TRUST II CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT
MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF
GEORGIA, ON THE 16TH DAY OF AUGUST, 1996.
GEORGIA POWER CAPITAL TRUST II
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
II-6
<PG$PCN>
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
AMENDMENT TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF
GEORGIA, ON THE 16TH DAY OF AUGUST, 1996.
GEORGIA POWER CAPITAL TRUST III
By: GEORGIA POWER COMPANY,
Depositor
By: WAYNE BOSTON,
Assistant Secretary
II-7
<PG$PCN>
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE 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.
G. JOSEPH PRENDERGAST Directors
HERMAN J. RUSSELL
GLORIA M. SHATTO
WILLIAM JERRY VEREEN
CARL WARE
THOMAS R. WILLIAMS
BY WAYNE BOSTON August 16, 1996
(WAYNE BOSTON, ATTORNEY-IN-FACT)
</TABLE>
II-8
<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 The Chase
Manhattan 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.**
4.3-A(1) -- Certificate of Amendment to Certificate of Trust of Georgia Power Capital Trust
I.
4.3-B(1) -- Certificate of Amendment to Certificate of Trust of Georgia Power Capital Trust
II.
4.3-C(1) -- Certificate of Amendment to 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-A -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust I.
4.5-B -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust II.
4.5-C -- Form of Amended and Restated Trust Agreement of Georgia Power Capital Trust III.
4.6-A -- Form of Preferred Security of Georgia Power Capital Trust I (included in Exhibit
4.5-A above).
4.6-B -- Form of Preferred Security of Georgia Power Capital Trust II (included in
Exhibit 4.5-B above).
4.6-C -- Form of Preferred Security of Georgia Power Capital Trust III (included in
Exhibit 4.5-C above).
4.7 -- Form of Junior Subordinated Note (included in Exhibit 4.2 above).
4.8-A -- Form of Guarantee relating to Georgia Power Capital Trust I.
4.8-B -- Form of Guarantee relating to Georgia Power Capital Trust II.
4.8-C -- Form of Guarantee relating to Georgia Power Capital Trust III.
4.9-A -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust I (included in Exhibit 4.5-A above).
4.9-B -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust II (included in Exhibit 4.5-B above).
4.9-C -- Form of Agreement as to Expenses and Liabilities relating to Georgia Power
Capital Trust III (included in Exhibit 4.5-C above).
5.1-A -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust I.
5.1-B -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust II.
5.1-C -- Opinion of Troutman Sanders LLP relating to Georgia Power Capital Trust III.
5.2-A -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust I.
5.2-B -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust II.
5.2-C -- Opinion of Richards, Layton & Finger relating to Georgia Power Capital Trust
III.
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-A, 5.1-B and 5.1-C
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-A, 5.2-B and 5.2-C
above).
</TABLE>
1
<PG$PCN>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
- ---------
<C> <C> <S>
24.1 -- Powers of Attorney and Resolution.**
25.1 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Indenture Trustee.
25.2 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust I.
25.3 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust I.
25.4 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust II.
25.5 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust II.
25.6 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Property Trustee, relating to Georgia Power Capital
Trust III.
25.7 -- Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Guarantee Trustee, relating to Georgia Power Capital
Trust III.
</TABLE>
- ---------------
* To be subsequently filed or incorporated by reference.
** Previously filed.
2
Exhibit 4.3-A(1)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST I
THIS Certificate of Amendment of Georgia Power Capital Trust I (the
"Trust"), dated July 23, 1996, is being duly executed and filed by the
undersigned trustee to amend a Certificate of Trust of a business trust created
under the Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust is Georgia Power Capital Trust I.
2. Amendment to Certificate of Trust. The Certificate of Trust of the
Trust is hereby amended by changing the name and address of the trustee of the
Trust with a principal place of business in the State of Delaware to:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Amendment shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the date and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
<PAGE>
Exhibit 4.3-B(1)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST II
THIS Certificate of Amendment of Georgia Power Capital Trust II (the
"Trust"), dated July 23, 1996, is being duly executed and filed by the
undersigned trustee to amend a Certificate of Trust of a business trust created
under the Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust is Georgia Power Capital Trust II.
2. Amendment to Certificate of Trust. The Certificate of Trust of the
Trust is hereby amended by changing the name and address of the trustee of the
Trust with a principal place of business in the State of Delaware to:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Amendment shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the date and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
<PAGE>
Exhibit 4.3-C(1)
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF TRUST
OF
GEORGIA POWER CAPITAL TRUST III
THIS Certificate of Amendment of Georgia Power Capital Trust III (the
"Trust"), dated July 23, 1996, is being duly executed and filed by the
undersigned trustee to amend a Certificate of Trust of a business trust created
under the Delaware Business Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust is Georgia Power Capital Trust III.
2. Amendment to Certificate of Trust. The Certificate of Trust of the
Trust is hereby amended by changing the name and address of the trustee of
the Trust with a principal place of business in the State of Delaware to:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. Effective Date. This Certificate of Amendment shall be effective as of
its filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Amendment as of the date and year first above written.
CHASE MANHATTAN BANK DELAWARE,
as Trustee
By: /s/ John J. Cashin
Name: John J. Cashin
Title: Senior Trust Officer
<PAGE>
Exhibit 4.5-A
REVISED DRAFT
8/14/96
GEORGIA POWER CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
among
GEORGIA POWER COMPANY, as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee,
and
JUDY M. ANDERSON and WAYNE BOSTON,
as Administrative Trustees
Dated as of _______ __, 1996
<PAGE>
GEORGIA POWER CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
Section 310(a)(1)....................................8.07
(a)(2)......................................8.07
(a)(3)......................................8.09
(a)(4)............................Not Applicable
(b).........................................8.08
Section 311(a).......................................8.13
(b).........................................8.13
Section 312(a).......................................5.07
(b).........................................5.07
(c).........................................5.07
Section 313(a)....................................8.14(a)
(a)(4)...................................8.14(b)
(b)......................................8.14(b)
(c)......................................8.14(a)
(d).............................8.14(a), 8.14(b)
Section 314(a).......................................8.15
(b)...............................Not Applicable
(c)(1)................................8.15, 8.16
(c)(2)......................................8.16
(c)(3)......................................8.16
(d)...............................Not Applicable
(e).........................................8.16
Section 315(a).......................................8.01
(b)................................8.02, 8.14(b)
(c)......................................8.01(a)
(d)...................................8.01, 8.03
(e)...............................Not Applicable
Section 316(a).............................Not Applicable
(a)(1)(A)...................................8.19
(a)(1)(B)...................................8.19
(a)(2)............................Not Applicable
(b)...............................Not Applicable
(c)...............................Not Applicable
Section 317(a)(1)..........................Not Applicable
(a)(2)............................Not Applicable
(b).........................................5.09
Section 318(a)......................................10.10
Note: This Cross-Reference Table does not constitute part of
the Trust Agreement and shall not affect the interpretation of any
of its terms and provisions.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
ARTICLE I
<C> <S> <C>
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
-------------------------------------
Trustees................................................. 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
iii
<PAGE>
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
---------------------------------
iv
</TABLE>
<PAGE>
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B Form of Certificate Depository Agreement
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
v
<PAGE>
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) The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of New York, as trustee
(the "Property Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Chase Manhattan Bank Delaware, a banking
corporation duly organized under the laws of Delaware, as Delaware trustee (the
"Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) 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 June
13, 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 June 13, 1996, as amended by that certain
Certificate of Amendment, dated July 23, 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, Judy M. Anderson and Wayne Boston as
trustees of the Trust, (ii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Notes, (iii) the
issuance of the Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
1
<PAGE>
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 and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
in interest in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
2
<PAGE>
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 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 certificates
representing Preferred Securities issued in global, fully registered form to the
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 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.
3
<PAGE>
"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 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.
4
<PAGE>
"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 Trust in the payment of any
Distribution when it becomes due and payable, and continuation
of such default for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is dealt with in
clause (ii) or (iii) above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Trustees by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to
the Trust.
5
<PAGE>
"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 The Chase Manhattan Bank, as Guarantee Trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Preferred Securities, as amended from time to time.
"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 A _____% Junior Subordinated Notes, due June
30, 2036, 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.
6
<PAGE>
"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;
7
<PAGE>
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been authenticated and delivered
pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any Trustee shall
be disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
which such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid in respect of the Junior Subordinated
Notes will be held and from which the Property Trustee shall make payments to
the Securityholders in accordance with Section 4.01.
8
<PAGE>
"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" are described
in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Business Trust Act.
"Subordinated Indenture" means the Subordinated Note Indenture, dated
as of August 1, 1996, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the __________ Supplemental Indenture,
dated as of _______ __, 1996, by and between the Depositor and the Indenture
Trustee.
9
<PAGE>
"Trust" means the Delaware business trust continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Amended and Restated Trust Agreement and any modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the preamble
to this Trust Agreement solely in their capacities as Trustees of the Trust
formed and continued hereunder and not in their individual capacities, or their
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes, (ii) any cash
on deposit in, or owing to, the Payment Account, and (iii) all proceeds and
rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
_______ __, 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
I", in which name the Trustees may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and sue and
10
<PAGE>
be sued. The Administrative Trustees may change the name of the Trust from time
to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business.
The address of the Property Trustee is The Chase Manhattan Bank, 450 West
33rd Street, New York, New York 10001, or at such other address as the Property
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal place of business of the Delaware Trustee is 1201
Market Street, Wilmington, Delaware, 19801, or at such other address in Delaware
as the Delaware Trustee may designate by notice to the Depositor. The address of
the Administrative Trustees is c/o Georgia Power Company, 333 Piedmont Avenue,
N.E., Atlanta, Georgia 30308, Attention: Corporate Secretary. 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.
Contemporaneously with the execution and delivery of this Trust Agreement,
the Administrative Trustees, on behalf of the Trust, shall execute and deliver
to the underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ 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 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 of $______, against payment by the Depositor of
such amount. Contemporaneously therewith, the Administrative Trustees, on behalf
of the Trust, shall subscribe to and purchase from the Depositor Junior
Subordinated Notes, registered in the
11
<PAGE>
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 Property Trustee, on
behalf of the Trust, shall 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, Judy M. Anderson and Wayne Boston as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein. The Property Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein for
the benefit of the Trust and the Securityholders. The Trustees shall have all
rights, powers and duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The Delaware Trustee
shall not be entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the requirements of
the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions.
The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in paragraph
C of this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the proceeds
of the sale of the Trust Securities; provided, however, the
Administrative Trustees shall cause legal title to all of the Junior
Subordinated Notes to be vested in, and the Junior Subordinated Notes
to be held of record in the name of, the Property Trustee for the
benefit of the Trust and Holders of the Trust Securities;
12
<PAGE>
(ii) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees shall
consult with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a Special
Event;
(iii) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture Act and
with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such Legal
Action;
(v) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(vi) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee
required by ss. 314(a)(4) of the Trust Indenture Act, which
certificate may be executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as
may be required of the Administrative Trustees pursuant to the
terms of this Trust Agreement;
(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;
13
<PAGE>
(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 this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated
Notes to the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section
5.09), 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:
(i) engage in such ministerial activities as shall
be necessary or appropriate to effect promptly the redemption
14
<PAGE>
of the Trust Securities to the extent the Junior Subordinated
Notes are redeemed or mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage
in such ministerial activities as shall be necessary or appropriate to
effect promptly the distribution pursuant to terms of this Trust
Agreement of Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights,
powers and privileges of a holder of the Junior Subordinated Notes
under the Subordinated Indenture and, if an Event of Default occurs and
is continuing, shall enforce for the benefit of, and subject to the
rights of, the Holders of the Trust Securities, its rights as holder of
the Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as may
be specifically required of the Property Trustee pursuant to
the terms of this Trust Agreement;
(v) take any Legal Action specifically required of the
Property Trustee pursuant to the terms of this Trust Agreement which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Trust Agreement, the
Delaware Business Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the
Payment Account;
(vii) the receipt of and holding of legal title to
the Junior Subordinated Notes as described herein;
(viii) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated
Notes in the Payment Account;
(ix) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the
winding up of the affairs of and termination of the Trust and
15
<PAGE>
the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf
16
<PAGE>
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. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered.
17
<PAGE>
Section 2.10 Mergers and Consolidations of the Trust.
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below or otherwise provided in this Trust Agreement. The Trust may at
the request of the Company, with the consent of the Administrative Trustees and
without the consent of the Holders of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any state; provided, that (i) such successor entity either (x)
expressly assumes all of the obligations of the Trust with respect to the Trust
Securities or (y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Trust Securities (herein referred to
as the "Successor Securities") so long as the Successor Securities rank the same
as the Trust Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of legal title to the Junior
Subordinated Notes, (iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which the
Preferred Securities are then listed, (iv) such merger, consolidation,
amalgamation or replacement does not cause the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the Trust Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, or replacement, the Company has received an Opinion of Counsel to
the effect that (A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Trust Securities (including any Successor Securities) in any material
respect, and (B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of 1940, and
(viii) the Company guarantees the obligations of such successor entity under the
Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by any other entity or permit any
other entity to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would cause the Trust or
the successor entity to be classified as other than a grantor trust for federal
income tax purposes.
18
<PAGE>
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
quarterly in arrears on March 31, June 30, September 30 and December 31 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").
(b) Distributions payable on the Trust Securities shall be
fixed at a rate of _____% per annum of the Liquidation Amount of
19
<PAGE>
the Trust Securities. The amount of Distributions payable for any full quarterly
period shall be computed on the basis of twelve 30- day months and a 360-day
year. If the interest payment period for the Junior Subordinated Notes is
extended pursuant to Section 104 of the Supplemental Indenture (an "Extension
Period"), then the rate per annum at which Distributions on the Trust Securities
accumulate shall be increased by an amount such that the aggregate amount of
Distributions that accumulate on all Trust Securities during any such Extension
Period is equal to the aggregate amount of interest (including interest payable
on unpaid interest at the percentage rate per annum set forth above, compounded
quarterly) that accrues during any such Extension Period on the Junior
Subordinated Notes. The payment of such deferred interest, together with
interest thereon, will be distributed to the Holders of the Trust Securities as
received at the end of any Extension Period. The amount of Distributions payable
for any period shall include the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(d) 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 Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
20
<PAGE>
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 2:00 p.m. New York time, on the Redemption
Date, subject to Section 4.02(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
Securities 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 Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities
21
<PAGE>
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
Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its Affiliates may, at any time and from time to time,
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the
22
<PAGE>
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 this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
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. The Administrative Trustee(s) shall provide or cause to be provided on a
timely basis to each Holder any Internal Revenue Service form required to be so
provided in respect of the Trust Securities.
23
<PAGE>
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates.
Each of the Preferred and Common Securities Certificates shall be issued in
minimum denominations of $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.
Section 5.04 Registration of Transfer and Exchange of Preferred Securities
Certificates.
24
<PAGE>
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
Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Administrative Trustees may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
25
<PAGE>
Administrative Trustees or any one of them on behalf of the Trust shall execute
and authenticate and make available for delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like class, tenor and denomination. In
connection with the issuance of any new Trust Securities Certificate under this
Section, the Administrative Trustees or the Securities Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Trust Securities
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
Section 5.06 Persons Deemed Securityholders.
Prior to due presentation of a Trust Securities Certificate for
registration of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions (subject to Section 4.01(d)) and for all
other purposes whatsoever, and neither the Trustees nor the Securities Registrar
shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i)
the Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Depositor or the Property Trustee, as the
case may be, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than 25% of the outstanding
Liquidation Amount apply in writing to the Administrative Trustees, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
26
<PAGE>
Section 5.08 Maintenance of Office or Agency.
The Administrative Trustees shall maintain in the Borough of Manhattan, New
York, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative Trustees initially
designate The Chase Manhattan Bank, 450 West 33rd Street, New York, New York
10001, as its principal agency for such purposes. The Administrative Trustees
shall give prompt written notice to the Depositor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
Section 5.09 Appointment of Paying Agent.
The Paying Agent shall make Distributions and other payments provided
hereby to Securityholders from the Payment Account and shall report the amounts
of such Distributions and payments to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions and payments provided hereby. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees and the Depositor. In the event
that a Paying Agent shall resign or be removed, the Administrative Trustees
shall appoint a successor that is acceptable to the Depositor to act as Paying
Agent (which shall be a bank or trust company). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
27
<PAGE>
Section 5.10 Ownership of Common Securities by Depositor.
On the Issue Date, the Depositor shall acquire, and thereafter retain,
beneficial and record ownership of the Common Securities. Any attempted transfer
of the Common Securities, except for transfers by operation of law, shall be
void. The Administrative Trustees shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be
in full force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and interest on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and
28
<PAGE>
receive and transmit payments on the Preferred Securities to
such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency.
To the extent a notice or other communication to the Owners is required
under this Trust Agreement, unless and until Definitive Preferred Securities
Certificates shall have been issued to Owners pursuant to Section 5.13, the
Trustees shall give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, or (ii) the Depositor at its option
advises the Trustees in writing that it elects to terminate the book-entry
system through the Clearing Agency, then the Administrative Trustees shall
notify the Clearing Agency and Holders of the Preferred Securities. Upon
surrender to the Administrative Trustees of the typewritten Preferred Securities
Certificate or Certificates representing the Book-Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration instructions,
the Administrative Trustees or any one of them shall execute and authenticate
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates
as Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders.
The legal title to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section 2.09, and the
Securityholders shall not have any right or title therein other than the
beneficial ownership interest in the assets of the Trust conferred by their
Trust Securities, and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
29
<PAGE>
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or other similar rights and when issued and delivered
to Securityholders against payment of the purchase price therefor, except as
otherwise provided in the Expense Agreement and Section 10.01 hereof, will be
fully paid and nonassessable by the Trust. Except as otherwise provided in the
Expense Agreement and Section 10.01 hereof, the Holders of the Trust Securities
shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section 10.03 of
this Trust Agreement, in the Subordinated Indenture, and as otherwise required
by law, no Holder of Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and management of the
Trust or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of at least 66-2/3% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall
30
<PAGE>
notify all Holders of the Preferred Securities of any notice of default received
from the Indenture Trustee with respect to the Junior Subordinated Notes. In
addition to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees shall, at
the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes on account of such
action.
(c) If any proposed amendment to this Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Preferred Securities,
whether by way of amendment to this Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least 66-2/3% in Liquidation Amount of the Outstanding
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
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.
Section 6.03 Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
record of 25% of the Preferred Securities (based upon their Liquidation Amount)
and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which Preferred Securityholders are entitled to vote.
31
<PAGE>
Preferred Securityholders of record of 50% of the Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66-2/3% of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04 Voting Rights.
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote may
vote by proxy, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Administrative Trustees, or with such
other officer or agent of the Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several Persons, any one of them may vote at any meeting in
person or by proxy in respect of such Trust Securities, but if more than one of
them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such vote
shall not be received in respect of such Trust Securities. A proxy purporting to
be executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
Section 6.06 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding at least 66-2/3% of all outstanding
Trust Securities entitled to vote in respect of such action (or such other
proportion thereof as shall be required by any express provision of this Trust
Agreement) shall consent to the action in writing (based upon their Liquidation
Amount).
Section 6.07 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust
32
<PAGE>
Agreement, or for the purpose of any other action, the Administrative Trustees
may from time to time fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or other action, as
the case may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08 Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in
person or by an agent appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to the Administrative Trustees. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.01) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part
33
<PAGE>
of the Liquidation Amount of such Trust Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records.
Upon reasonable notice to the Trustees, the records of the Trust shall be
open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the Trustees.
The Bank, the Delaware Bank, the Property Trustee and the Delaware Trustee,
each on behalf of and as to itself, hereby represents and warrants for the
benefit of the Depositor and the Securityholders that:
(a) the Bank is a banking corporation or trust company duly organized,
validly existing and in good standing under the laws of the State of New York,
and the Delaware Trustee is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
(b) each of the Bank and the Delaware Bank has full corporate power,
authority and legal right to execute, deliver and perform their obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Bank and constitutes the valid
and legally binding agreement of each of the Bank and the Delaware Bank,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
34
<PAGE>
(d) the execution, delivery and performance by each of the Bank and the
Delaware Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank, the Property Trustee, the Delaware
Bank and the Delaware Trustee and do not require any approval of stockholders of
the Bank or the Delaware Bank and such execution, delivery and performance will
not (i) violate the Bank's or the Delaware Bank's Charter or By-laws, or (ii)
violate any law, governmental rule or regulation of the United States or the
State of New York or Delaware, as the case may be, governing the banking or
trust powers of the Bank and the Property Trustee or the Delaware Bank and the
Delaware Trustee, or any order, judgment or decree applicable to the Bank, the
Property Trustee, the Delaware Bank or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the Bank or the
Delaware Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Bank, the Property Trustee, the Delaware Bank or the
Delaware Trustee (as appropriate in context) contemplated herein or therein, nor
the issuance of the Trust Securities Certificates pursuant to this Trust
Agreement require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, New York or
Delaware law governing the banking or trust powers of the Bank or the Delaware
Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the
35
<PAGE>
terms hereof. Each Securityholder, by its acceptance of a Trust Security, agrees
that it will look solely to the income and proceeds from the Trust Property to
the extent available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults.
Within 90 days after the occurrence of any default, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.08,
notice of any default known to the Property Trustee to the Securityholders, the
Administrative Trustees and the Depositor, unless such default shall have been
cured or waived. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default.
Section 8.03 Certain Rights of Property Trustee.
Subject to the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it
to be genuine and to have been signed or presented by the
proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, or (B) in
construing any of the provisions in this Trust Agreement
the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained 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 action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking,
by the Depositor; provided, however, that if the Property
Trustee does not receive such instructions of the
Depositor within ten Business Days after it has delivered
36
<PAGE>
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; and
(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
37
<PAGE>
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 willful misconduct,
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
willful misconduct, negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties hereunder.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the
38
<PAGE>
Property Trustee with respect to the Trust Securities shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity authorized to conduct a trust business and with its principal place
of business in the State of Delaware that shall act through one or more persons
authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements of
the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such Trust Property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed necessary
or desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Indenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
39
<PAGE>
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Indenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
40
<PAGE>
(v) The Trustees shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be continuing,
the Relevant Trustee may be removed at any time by Act of the Holder of the
Common Securities. If an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred Securities
Certificates, delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any
41
<PAGE>
court of competent jurisdiction for the appointment of a successor
Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, every
such successor Relevant Trustee so appointed shall execute, acknowledge and
deliver to the Trust and to the retiring Relevant Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Relevant Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on the request of the Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Relevant Trustee all the rights,
powers and trusts of the retiring Relevant Trustee and shall duly assign,
transfer and deliver to such successor Relevant Trustee all property and money
held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
42
<PAGE>
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or Trust.
If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Junior Subordinated Notes
or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15,
1997, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of
43
<PAGE>
such May 15 with respect to any of the events specified in such Section 313(a)
that may have occurred since the later of the date of this Trust Agreement or
the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the reports
required by Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and (d)
of the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and, within 120 days
after the end of each fiscal year of the Depositor, the compliance certificate
required by Section 314(a)(4) of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to Section 314(c)(1) of
the Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture
Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted
44
<PAGE>
to the Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders.
If (i) the Trust fails to pay Distributions in full on the Preferred
Securities for more than 20 consecutive quarterly distribution periods, or (ii)
an Event of Default occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee of its rights
against the Company as the holder of the Junior Subordinated Notes. In addition,
the Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities will have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under this Trust Agreement, including the right to direct the Property Trustee
to exercise the remedies available to it as a holder of the Junior Subordinated
Notes, provided that such direction shall not be in conflict with any rule of
law or with this Trust Agreement, and could not involve the Property Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Notes, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce its rights under this Trust Agreement without first instituting any
legal proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Trust Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a
45
<PAGE>
holder of Preferred Securities may institute a legal proceeding directly against
the Company, without first instituting a legal proceeding against the Property
Trustee or any other person or entity, for enforcement of payment to such holder
of principal of or interest on the Series A Junior Subordinated Notes having a
principal amount equal to the aggregate stated liquidation amount of the
Preferred Securities of such holder on or after the due dates specified in the
Series A Junior Subordinated Notes.
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 in respect
of the Depositor, dissolution or liquidation of the Depositor,
or the dissolution of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee
by the Depositor at any time (which direction is optional and wholly
within the discretion of the Depositor) to terminate the Trust and
distribute the Junior Subordinated Notes to Securityholders as provided
in Section 9.04; and
(iii) the payment at maturity or redemption of all of
the Junior Subordinated Notes, and the consequent payment of
the Preferred Securities.
Section 9.03 Termination.
The respective obligations and responsibilities of the Trust and the
Trustees created hereby shall terminate upon the latest to occur of the
following: (a) the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon the redemption of
all of the Trust Securities pursuant to Section 4.02, 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.
46
<PAGE>
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of Section
9.02 occurs, the Trust shall be liquidated and the Property trustee shall
distribute the Junior Subordinated Notes to the Securityholders as provided in
this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated Notes,
each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Junior
Subordinated Notes as the Administrative Trustees or the Property
Trustee shall deem
appropriate.
(c) In order to effect the liquidation of the Trust and distribution of
the Junior Subordinated Notes to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Notes in exchange for the Outstanding Trust Securities
Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will no longer
be deemed to be Outstanding, (ii) certificates representing a Like Amount of
Junior Subordinated Notes will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Junior
Subordinated Notes, accruing interest at the rate provided for in the Junior
Subordinated Notes from the last Distribution Date on which a Distribution was
made on such Trust
47
<PAGE>
Certificates until such certificates are so surrendered (and until such
certificates are so surrendered, no payments of interest or principal will be
made to Holders of Trust Securities Certificates with respect to such Junior
Subordinated Notes) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Notes upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee pursuant to a Certificate
Depository Agreement substantially in the form of Exhibit B.
Section 9.05 Bankruptcy.
If an Early Termination Event specified in clause (i) of Section 9.02 has
occurred, the Trust shall be liquidated. The Property Trustee shall distribute
the Junior Subordinated Notes to the Securityholders as provided in Section
9.04, unless such distribution is determined by the Administrative Trustees not
to be practical, in which event the Holders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the Liquidation
Amount per Trust Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The Holder of the Common Securities will be entitled
to receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if an Indenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
ARTICLE X
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 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
48
<PAGE>
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 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.
49
<PAGE>
(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. Any Trustee may,
but shall not be obligated to, enter into any such amendment which affects such
Trustee's own rights, duties, immunities or liabilities under this Trust
Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.05 Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF DELAWARE; PROVIDED THAT THE IMMUNITIES AND
STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL BE GOVERNED BY NEW YORK LAW.
Section 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.
50
<PAGE>
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, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (i) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address appear on the Securities Register and (ii) in
the case of the Common Securityholder or the Depositor, to Georgia Power
Company, 333 Piedmont Avenue, N.E., Atlanta, Georgia 30308, Attention: Corporate
Secretary, Facsimile No. (404) 526-2945, with a copy to Southern Company
Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346, Attention:
Corporate Finance Department, Facsimile No. (770) 821-4460. Such notice, demand
or other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee and the Delaware Trustee, The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York, 10001, Attention: Corporate Trustee Administration
Department; Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust Department, as the case may be; and
(ii) with respect to the Administrative Trustees, to them at the address above
for notices to the Depositor, marked Attention: Administrative Trustees of
Georgia Power Capital Trust I c/o Corporate Secretary. Such notice, demand or
other communication to or upon the Trust or the Trustees shall be deemed to have
been sufficiently given or made only upon actual receipt of the writing by the
applicable Trustee.
Section 10.09 Agreement Not to Petition.
Each of the Trustees and the Depositor agrees for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, it shall not file, or join in the
filing of, a petition against the Trust under any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar law (including, without
limitation, the United States Bankruptcy Code) (collectively, "Bankruptcy Laws")
or otherwise join in the commencement of any proceeding against the Trust under
any Bankruptcy Law. In the event the Depositor takes action in violation of this
Section 10.09, the Property Trustee agrees, for the benefit of Securityholders,
that
51
<PAGE>
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 undivided beneficial interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
52
<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,
as Depositor
By:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Title:
Judy M. Anderson,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
53
<PAGE>
EXHIBIT A
[INTENTIONALLY RESERVED]
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 I
_____% 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 I, a Delaware statutory business
trust (the "Trust"). The Securities are guaranteed to the extent set forth in
the Prospectus relating to the Securities dated __________, 1996, and the
accompanying Prospectus Supplement 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. The Chase Manhattan 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
Exhibit B - Page 1
<PAGE>
notices shall be confirmed by telephoning (212) 709-6870. Notices to DTC
pursuant to this paragraph by mail or by other means shall be sent to DTC's
Reorganization Department as indicated in paragraph 6.
3. In the event of a stock split, conversion, recapitaliza- tion,
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 at least 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 at least 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 I, _____%
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 by written notice 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
number of Securities outstanding, DTC, in its discretion: (a) may
Exhibit B - Page 3
<PAGE>
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 I
By:
Name: Wayne Boston
Title: Administrative Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee of
Georgia Power Capital Trust I
By:
Name:
Title:
Exhibit B - Page 4
<PAGE>
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
Authorized Officer
Exhibit B - Page 5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
Georgia Power Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
Georgia Power Capital Trust I, a statutory business trust created 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 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 I
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 I, 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 I _____% Trust Preferred Securities,
Series A (the "Preferred Securities") with such powers, preferences and special
rights and restrictions as are set forth in the Amended and Restated Trust
Agreement of the Trust dated as of _______ __, 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 sums paid
under the Preferred Securities, under any Obligation,
Exhibit D - Page 1
<PAGE>
under the Guarantee Agreement dated the date hereof by the Company and The Chase
Manhattan Bank, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall in
no way be affected or impaired by reason of the happening from time
to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of, or
in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Company and shall
inure to the benefit of the Beneficiaries.
Exhibit D - Page 2
<PAGE>
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 I
c/o The Chase Manhattan 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.: (404) 526-2945
Attention: Corporate Secretary
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 I
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 I or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), any transfer, pledge, or other use hereof for
value or otherwise by or to any person is wrongful inasmuch as the registered
owner thereof, Cede & Co., has an interest herein.
Certificate Number
P-1
Number of Preferred Securities
---------
CUSIP NO. _________
Certificate Evidencing Preferred Securities
of
Georgia Power Capital Trust I
_____% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Georgia Power Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of
___________________________________________ (_________) preferred securities of
the Trust representing undivided beneficial interest in the assets of the Trust
and designated the Georgia Power Capital Trust I _____% 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, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of _______ __, 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
Exhibit E - Page 1
<PAGE>
between the Company and The Chase Manhattan Bank, as guarantee trustee, dated as
of _______ __, 1996, as the same may be amended from time to time (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the holder of this certificate without
charge upon written request to the Trust at its principal place of business or
registered office.
Upon receipt of this certificate, the holder of this certificate is
bound by the Trust Agreement and is entitled to the benefits thereunder.
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 I
By:
Judy M. Anderson,
as Administrative Trustee
By:
Wayne Boston,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
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 number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.5-B
REVISED DRAFT
8/14/96
GEORGIA POWER CAPITAL TRUST II
AMENDED AND RESTATED
TRUST AGREEMENT
among
GEORGIA POWER COMPANY, as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee,
and
JUDY M. ANDERSON and WAYNE BOSTON,
as Administrative Trustees
Dated as of _______ __, 1996
<PAGE>
GEORGIA POWER CAPITAL TRUST II
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
Trustees . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
The Trustees . . . . . . . . . . . 36
Section 8.01 Certain Duties and Responsibilities . . . . . 36
Section 8.02 Notice of Defaults . . . . . . . . . . . . . . 36
Section 8.03 Certain Rights of Property Trustee . . . . . . 36
Section 8.04 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 38
Section 8.05 May Hold Securities . . . . . . . . . . . . . 38
Section 8.06 Compensation; Fees; Indemnity . . . . . . . . 38
Section 8.07 Trustees Required; Eligibility . . . . . . . . 39
Section 8.08 Conflicting Interests . . . . . . . . . . . . 39
Section 8.09 Co-Trustees and Separate Trustee . . . . . . . 40
Section 8.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 41
Section 8.11 Acceptance of Appointment by Successor . . . . 42
Section 8.12 Merger, Conversion, Consolidation or
Succession
to Business . . . . . . . . . . . . . . . . . 43
Section 8.13 Preferential Collection of Claims Against
iii
<PAGE>
Depositor or Trust . . . . . . . . . . . . . . 43
Section 8.14 Reports by Property Trustee . . . . . . . . . 44
Section 8.15 Reports to the Property Trustee . . . . . . . 44
Section 8.16 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 44
Section 8.17 Number of Trustees . . . . . . . . . . . . . . 45
Section 8.18 Delegation of Power . . . . . . . . . . . . . 45
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders . . . . . . . . . . . . . . . 45
ARTICLE IX
Termination and Liquidation . . . . . . . 46
Section 9.01 Termination Upon Expiration Date . . . . . . . 46
Section 9.02 Early Termination . . . . . . . . . . . . . . 46
Section 9.03 Termination . . . . . . . . . . . . . . . . . 47
Section 9.04 Liquidation . . . . . . . . . . . . . . . . . 47
Section 9.05 Bankruptcy . . . . . . . . . . . . . . . . . . 48
ARTICLE X
Miscellaneous Provisions . . . . . . . . 49
Section 10.01 Guarantee by the Depositor . . . . . . . . . . 49
Section 10.02 Limitation of Rights of Securityholders . . . 49
Section 10.03 Amendment . . . . . . . . . . . . . . . . . . 49
Section 10.04 Separability . . . . . . . . . . . . . . . . . 51
Section 10.05 Governing Law . . . . . . . . . . . . . . . . 51
Section 10.06 Successors . . . . . . . . . . . . . . . . . . 51
Section 10.07 Headings . . . . . . . . . . . . . . . . . . . 51
Section 10.08 Notice and Demand . . . . . . . . . . . . . . 51
Section 10.09 Agreement Not to Petition . . . . . . . . . . 52
iv
<PAGE>
Section 10.10 Conflict with Trust Indenture Act . . . . . . 52
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B Form of Certificate Depository Agreement
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
v
<PAGE>
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) The
Chase Manhattan Bank, a banking corporation duly organized and
existing under the laws of New York, as trustee (the "Property
Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Chase Manhattan Bank
Delaware, a banking corporation duly organized under the laws of
Delaware, as Delaware trustee (the "Delaware Trustee" and, in its
separate corporate capacity and not in its capacity as Delaware
Trustee, the "Delaware Bank"), (iv) 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 June 13, 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 June 13, 1996, as
amended by that certain Certificate of Amendment, dated July 23,
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,
Judy M. Anderson and Wayne Boston as trustees of the Trust, (ii)
the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Notes, (iii)
the issuance of the Common Securities by the Trust to the
Depositor, and (iv) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
1
<PAGE>
2
<PAGE>
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 and continued hereunder and not in
their individual capacities, or such trustee's successor(s) in
interest in such capacity, or any successor "Administrative
Trustee" appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
3
<PAGE>
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under federal
bankruptcy law or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of
any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law,
or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such Person or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section
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
certificates representing Preferred Securities issued in global,
fully registered form to the 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 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
4
<PAGE>
Indenture Trustee's principal corporate trust office is closed
for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Issue Date, relating to
the Preferred Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository Trust Company
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges
of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of a Common Security or Securities,
substantially in the form attached as Exhibit C.
"Company" means Georgia Power Company.
"Corporate Trust Office" means the office of the Property
Trustee 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.
5
<PAGE>
"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the commercial bank or trust
company or any other Person identified as the "Delaware Trustee"
and has the meaning specified in the preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust
formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means 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 Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, of any
covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (ii) or (iii)
above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
6
<PAGE>
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in
the form attached as Exhibit D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and The Chase Manhattan Bank, as
Guarantee Trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Securities, as amended from time to time.
"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.
7
<PAGE>
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Junior
Subordinated Notes are to be distributed to Holders of Trust
Securities in connection with a dissolution and liquidation of
the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. An Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such
officer's opinion, to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees or the Depositor, but
not an employee of the Trust or the Trustees, and who shall be
reasonably acceptable to the Property Trustee. Any Opinion of
Counsel pertaining to federal income tax matters may rely on
published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
8
<PAGE>
Securities theretofore authenticated and delivered under this
Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by
the Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities;
provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities 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.
9
<PAGE>
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Notes will be held and from
which the Property Trustee shall make payments to the
Securityholders in accordance with Section 4.01.
"Person" means an individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or
political subdivision thereof.
"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" are
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities
Register; any such Person is a beneficial owner within the
meaning of the Delaware Business Trust Act.
10
<PAGE>
"Subordinated Indenture" means the Subordinated Note
Indenture, dated as of August 1, 1996, between the Depositor and
the Indenture Trustee, as supplemented by the Supplemental
Indenture.
"Supplemental Indenture" means the __________ 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.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as
Trustees of the Trust formed and continued hereunder and not in
their individual capacities, or their successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes,
(ii) any cash on deposit in, or owing to, the Payment Account,
and (iii) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed
to be held by the Property Trustee pursuant to this Trust
Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of _______ __, 1996, among the Trust, the Depositor and
the underwriters named therein.
11
<PAGE>
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be
known as "Georgia Power Capital Trust II", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued. The Administrative Trustees may change the name of
the Trust from time to time following written notice to the
Holders.
Section 2.02 Offices of the Trustees; Principal Place of
Business. The address of the Property Trustee is The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001,
or at such other address as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 1201
Market Street, Wilmington, Delaware, 19801, or at such other
address in Delaware as the Delaware Trustee may designate by
notice to the Depositor. The address of the Administrative
Trustees is c/o Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, Attention: Corporate Secretary. 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.
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall execute and deliver to the underwriters named in the
Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ 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.
12
<PAGE>
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common Securities.
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of ________ Common Securities having an
aggregate Liquidation Amount of $______, against payment by the
Depositor of such amount. Contemporaneously therewith, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Junior Subordinated Notes,
registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price
for such Junior Subordinated Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of
$___________.
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,
Judy M. Anderson and Wayne Boston as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the
Securityholders. The Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the
requirements of the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph C of this
Section, and in accordance with the following paragraphs A and B,
the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and
to perform all acts in furtherance thereof, including without
limitation, the following:
13
<PAGE>
A. As among the Trustees, the Administrative Trustees,
acting singly or jointly, shall have the exclusive power, duty
and authority to act on behalf of the Trust with respect to the
following matters:
(i) to acquire the Junior Subordinated Notes with
the proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title
to all of the Junior Subordinated Notes to be vested in, and
the Junior Subordinated Notes to be held of record in the
name of, the Property Trustee for the benefit of the Trust
and Holders of the Trust Securities;
(ii) to give the Depositor and the Property
Trustee prompt written notice of the occurrence of any
Special Event (as defined in the Supplemental Indenture) and
to take any ministerial actions in connection therewith;
provided, that the Administrative Trustees shall consult
with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a
Special Event;
(iii) to establish a record date with respect to
all actions to be taken hereunder that require a record date
be established, including for the purposes of Section 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 Section 314(a)(4) of the Trust Indenture Act,
which certificate may be executed by any Administrative
Trustee;
(viii) to take all actions and perform such duties
as may be required of the Administrative Trustees pursuant
to the terms of this Trust Agreement;
14
<PAGE>
(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges
as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust
to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable
in connection with the consummation hereof;
(xiii) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and
the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(xv) to send notices (other than notices of
default) and other information regarding the Trust
Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section
5.09), 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
15
<PAGE>
filing of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(xix) to take any action incidental to the
foregoing as the Administrative Trustees may from time to
time determine is necessary, appropriate, convenient or
advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have
the exclusive power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
redemption of the Trust Securities to the extent the Junior
Subordinated Notes are redeemed or mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of
the rights, powers and privileges of a holder of the Junior
Subordinated Notes under the Subordinated Indenture and, if
an Event of Default occurs and is continuing, shall enforce
for the benefit of, and subject to the rights of, the
Holders of the Trust Securities, its rights as holder of the
Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as
may be specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement;
(v) take any Legal Action specifically required
of the Property Trustee pursuant to the terms of this Trust
Agreement which arises out of or in connection with an Event
of Default or the Property Trustee's duties and obligations
under this Trust Agreement, the Delaware Business Trust Act
or the Trust Indenture Act;
(vi) the establishment and maintenance of the
Payment Account;
(vii) the receipt of and holding of legal title to
the Junior Subordinated Notes as described herein;
16
<PAGE>
(viii) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated
Notes in the Payment Account;
(ix) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Notes to the Securityholders in accordance with
this Trust Agreement;
(xi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the
winding up of the affairs of and termination of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary, appropriate, convenient or advisable
to protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a grantor trust for United States federal income tax purposes,
(iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a
Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or
agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The
Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
17
<PAGE>
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable laws of
any such States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred Securities
and to execute, deliver and perform the Underwriting
Agreement on behalf of the Trust; and
(vi) any other actions necessary, incidental,
appropriate or convenient to carry out any of the foregoing
activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated
Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate
of Trust or this Trust Agreement, that each of the Depositor and
18
<PAGE>
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially and adversely affect the interests of the
Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee
to the Junior Subordinated Notes shall vest automatically in each
Person who may thereafter be appointed as Property Trustee in
accordance with the terms hereof. Such vesting and cessation of
title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The
Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other
body, except as described below or otherwise provided in this
Trust Agreement. The Trust may at the request of the Company,
with the consent of the Administrative Trustees and without the
consent of the Holders of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any state; provided, that (i)
such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or
(y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Trust Securities
(herein referred to as the "Successor Securities") so long as the
Successor Securities rank the same as the Trust Securities rank
in priority with respect to Distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of legal
title to the Junior Subordinated Notes, (iii) the Preferred
Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect,
19
<PAGE>
(vi) such successor entity has a purpose substantially identical
to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, or replacement, the Company has received an Opinion
of Counsel to the effect that (A) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be
required to register as an investment company under the
Investment Company Act of 1940, and (viii) the Company guarantees
the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with
the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and an
agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for
the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All
monies and other property deposited or held from time to time in
the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Junior Subordinated Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
20
<PAGE>
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").
(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) 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.
21
<PAGE>
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 Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the
Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Junior Subordinated Notes.
Redemptions of the Trust Securities shall be made and the
Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 p.m. New York
time, on the Redemption Date, subject to Section 4.02(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
22
<PAGE>
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 Securities 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 Redemption Price shall be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of Trust Securities is
improperly withheld or refused and not paid either by the Trust
or by the Depositor pursuant to the Guarantee, Distributions on
such Trust Securities will continue to accrue at the then
applicable rate, from such Redemption Date originally established
by the Trust for such Preferred Securities to the date such
Redemption Price is actually paid.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant
record date, 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
23
<PAGE>
undertaking redemption of the Preferred Securities on other than
a pro rata basis, the Property Trustee shall have received an
Opinion of Counsel that the status of the Trust as a grantor
trust for federal income tax purposes would not be adversely
affected. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount
of Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and
to applicable law (including, without limitation, United States
federal securities laws), the Company or its Affiliates may, at
any time and from time to time, purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have
waived any such Event of Default under this Trust Agreement until
the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so
24
<PAGE>
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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely
basis to each Holder any Internal Revenue Service form required
to be so provided in respect of the Trust Securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of
the Preferred and Common Securities Certificates shall be issued
in minimum denominations of $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
25
<PAGE>
Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04.
Section 5.03 Authentication of Trust Securities
Certificates. On the Issue Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman
of the Board, its President or any Vice President, without
further corporate action by the Depositor, in authorized
denominations. No Trust Securities Certificate shall entitle its
holder to any benefit under this Trust Agreement, or shall be
valid for any purpose, unless there shall appear on such Trust
Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit E or Exhibit C, as
applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive
evidence that such Trust Securities Certificate shall have been
duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities
Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained
pursuant to Section 5.08, the Administrative Trustees shall
execute, authenticate and deliver in the name of the designated
transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the
Administrative Trustee or Trustees. The Securities Registrar
shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
26
<PAGE>
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 Securities Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar or the Administrative Trustees may
require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or
if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on
behalf of the Trust shall execute and authenticate and make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving
27
<PAGE>
Distributions (subject to Section 4.01(d)) and for all other
purposes whatsoever, and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished to (i) the Depositor and the Property Trustee semi-
annually, not later than June 1 and December 1 in each year, and
(ii) the Depositor or the Property Trustee, as the case may be,
within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as
the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may
reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the
time such list is furnished. If three or more Securityholders or
one or more Holders of Trust Securities Certificates evidencing
not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application
states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that
such applicants propose to transmit, then the Administrative
Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate,
shall be deemed to have agreed not to hold either the Depositor
or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.08 Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of
Manhattan, New York, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative
Trustees initially designate The Chase Manhattan Bank, 450 West
33rd Street, New York, New York 10001, as its principal agency
for such purposes. The Administrative Trustees shall give prompt
written notice to the Depositor and to the Securityholders of any
change in the location of the Securities Register or any such
office or agency.
Section 5.09 Appointment of Paying Agent. The Paying
Agent shall make Distributions and other payments provided hereby
to Securityholders from the Payment Account and shall report the
amounts of such Distributions and payments to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall
28
<PAGE>
have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions and payments
provided hereby. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property
Trustee, and it may choose any co-paying agent that is acceptable
to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Administrative Trustees
and the Depositor. In the event that a Paying Agent shall resign
or be removed, the Administrative Trustees shall appoint a
successor that is acceptable to the Depositor to act as Paying
Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Property Trustee also in its role as Paying Agent,
for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
On the Issue Date, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities, except for
transfers by operation of law, shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
29
<PAGE>
behalf of, the Trust. Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees
shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred
Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Trust
Agreement, the provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of
a definitive Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under
this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the
30
<PAGE>
Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-
entry system through the Clearing Agency, then the Administrative
Trustees shall notify the Clearing Agency and Holders of the
Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them
shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of
the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of
them.
Section 5.14 Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or
other similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor,
except as otherwise provided in the Expense Agreement and Section
10.01 hereof, will be fully paid and nonassessable by the Trust.
Except as otherwise provided in the Expense Agreement and Section
10.01 hereof, the Holders of the Trust Securities shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
31
<PAGE>
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or
Section 10.03 of this Trust Agreement, in the Subordinated
Indenture, and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association.
(b) So long as any Junior Subordinated Notes are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such
Junior Subordinated Notes, (ii) waive any past default which is
waivable under Section 513 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Notes shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior
Subordinated Notes, where such consent shall be required, or to
any other action, as holder of the Junior Subordinated Notes,
under the Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of at least 66-2/3%
in Liquidation Amount of the Preferred Securities; provided,
however, that where a consent under the Subordinated Indenture
would require the consent of each holder of Junior Subordinated
Notes affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of
Preferred Securities, except pursuant to a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice of
default received from the Indenture Trustee with respect to the
Junior Subordinated Notes. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, preferences or
special rights of the Preferred Securities, whether by way of
amendment to this Trust Agreement or otherwise, or (ii) the
32
<PAGE>
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.
Section 6.03 Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
in their discretion, call a meeting of Preferred Securityholders
to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by
proxy, holding more than 66-2/3% of the Preferred Securities
(based upon their Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
33
<PAGE>
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote may vote by
proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid
more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding at least
66-2/3% of all outstanding Trust Securities entitled to vote in
respect of such action (or such other proportion thereof as shall
be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their
Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section 6.08 Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
34
<PAGE>
tenor signed by such Securityholders in person or by an agent
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument
or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such
Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or
35
<PAGE>
Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect
to such matter.
Section 6.09 Inspection of Records. Upon reasonable
notice to the Trustees, the records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the
Trustees. The Bank, the Delaware Bank, the Property Trustee and
the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws
of the State of New York, and the Delaware Trustee is a banking
corporation or trust company duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full
corporate power, authority and legal right to execute, deliver
and perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by each of the Bank and the Delaware Bank and
constitutes the valid and legally binding agreement of each of
the Bank and the Delaware Bank, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles;
(d) the execution, delivery and performance by each of the
Bank and the Delaware Bank of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the
Bank, the Property Trustee, the Delaware Bank and the Delaware
Trustee and do not require any approval of stockholders of the
Bank or the Delaware Bank and such execution, delivery and
performance will not (i) violate the Bank's or the Delaware
Bank's Charter or By-laws, or (ii) violate any law, governmental
rule or regulation of the United States or the State of New York
or Delaware, as the case may be, governing the banking or trust
36
<PAGE>
powers of the Bank and the Property Trustee or the Delaware Bank
and the Delaware Trustee, or any order, judgment or decree
applicable to the Bank, the Property Trustee, the Delaware Bank
or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the
Bank or the Delaware Bank of this Trust Agreement, nor the
consummation of any of the transactions by the Bank, the Property
Trustee, the Delaware Bank or the Delaware Trustee (as
appropriate in context) contemplated herein or therein, nor the
issuance of the Trust Securities Certificates pursuant to this
Trust Agreement require the consent or approval of, the giving of
notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under
any existing federal, New York or Delaware law governing the
banking or trust powers of the Bank or the Delaware Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require
the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of
the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust
Property to enable the Property Trustee to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth
37
<PAGE>
elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the
occurrence of any default, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an
Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate
of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
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 action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
38
<PAGE>
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; and
(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.
39
<PAGE>
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 willful misconduct,
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 willful misconduct, negligence or bad
faith on their part, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including
the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
40
<PAGE>
in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located,
the Holder of the Common Securities and the Property Trustee
shall have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such Trust Property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section shall satisfy the
requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
41
<PAGE>
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(i) The Trust Securities shall be executed,
authenticated and delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in
respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under
this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-
trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed
in the manner provided in this Section.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission
of the Property Trustee, or any other such trustee
hereunder.
42
<PAGE>
(v) The Trustees shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the
"Relevant Trustee") and no appointment of a successor Relevant
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Relevant Trustee in
accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and
be continuing, the Relevant Trustee may be removed at any time by
Act of the Holder of the Common Securities. If an Indenture
Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority in Liquidation Amount of the
Preferred Securities Certificates, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no
Indenture Event of Default shall have occurred and be continuing,
the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees,
and the retiring Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If the Relevant Trustee
shall resign, be removed or become incapable of continuing to act
as the Relevant Trustee at a time when an Indenture Event of
Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority
in Liquidation Amount of the Preferred Securities then
outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed in accordance with this Section 8.10
and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and
43
<PAGE>
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee, and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the act of the
remaining Administrative Trustee or (ii) otherwise by the
Depositor (with the successor in each case being an individual
who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor believes that any
Administrative Trustee has become incompetent or incapacitated,
the Depositor, by notice to the remaining Trustees, may terminate
the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed shall
execute, acknowledge and deliver to the Trust and to the retiring
Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on the request of the
Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by
such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
44
<PAGE>
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee, Delaware Trustee or any Administrative Trustee which is
not a natural person may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall
be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be
the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Junior Subordinated Notes or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor). For purposes of Section 311(b)(4) and (6) of the Trust
Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Depositor or the Trust (or any such
obligor) for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor
relationship with the Depositor or the Trust (or any such
obligor) arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
45
<PAGE>
(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 Trust Agreement or the preceding May
15.
(b) The Property Trustee shall transmit to Securityholders
the reports required by Section 313(b) of the Trust Indenture Act
at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and
(d) of the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act
(if any) and, within 120 days after the end of each fiscal year
of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to
Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four,
provided that the Depositor by written instrument may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
46
<PAGE>
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted
to the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(A),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay Distributions in
full on the Preferred Securities for more than __ 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 this Trust Agreement,
including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Junior
Subordinated Notes, provided that such direction shall not be in
conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate.
If the Property Trustee fails to enforce its rights under the
Junior Subordinated Notes, a Holder of Preferred Securities may,
to the fullest extent permitted by applicable law, institute a
legal proceeding against the Company to enforce its rights under
this Trust Agreement without first instituting any legal
proceeding against the Property Trustee or any other Person,
including the Trust; it being understood and intended that no one
or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
47
<PAGE>
Trust Agreement to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any
right under this Trust Agreement, except in the manner herein
provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a holder of Preferred
Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against the
Property Trustee or any other person or entity, for enforcement
of payment to such holder of principal of or interest on the
Series __ Junior Subordinated Notes having a principal amount
equal to the aggregate stated liquidation amount of the Preferred
Securities of such holder on or after the due dates specified in
the Series __ Junior Subordinated Notes.
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 in
respect of the Depositor, dissolution or liquidation of the
Depositor, or the dissolution of the Trust pursuant to
judicial decree;
(ii) the delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is optional and wholly within the discretion of
the Depositor) to terminate the Trust and distribute the
Junior Subordinated Notes to Securityholders as provided in
Section 9.04; and
(iii) the payment at maturity or redemption of all
of the Junior Subordinated Notes, and the consequent payment
of the Preferred Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (a)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed
48
<PAGE>
hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; and (c) the discharge
of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii)
of Section 9.02 occurs, the Trust shall be liquidated and the
Property trustee shall distribute the Junior Subordinated Notes
to the Securityholders as provided in this Section 9.04.
(b) In connection with a distribution of the Junior
Subordinated Notes, each Holder of Trust Securities shall be
entitled to receive, after the satisfaction of liabilities to
creditors of the Trust (as evidenced by a certificate of the
Administrative Trustees), a Like Amount of Junior Subordinated
Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor
more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like
Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Notes as the
Administrative Trustees or the Property Trustee shall deem
appropriate.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Notes to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect
the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Junior Subordinated Notes will be
issued to Holders of Trust Securities Certificates, upon
49
<PAGE>
surrender of such certificates to the Administrative Trustees or
their agent for exchange, (iii) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a
Like Amount of Junior Subordinated Notes, accruing interest at
the rate provided for in the Junior Subordinated Notes from the
last Distribution Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Subordinated Notes) and
(iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Junior
Subordinated Notes upon surrender of Trust Securities
Certificates.
(e) The Depositor will use its best efforts to have the
Junior Subordinated Notes that are distributed in exchange for
the Preferred Securities to be listed on such securities exchange
as the Preferred Securities are then listed. The Depositor may
elect to have the Junior Subordinated Notes issued in book-entry
form to the Clearing Agency or its nominee pursuant to a
Certificate Depository Agreement substantially in the form of
Exhibit B.
Section 9.05 Bankruptcy. If an Early Termination Event
specified in clause (i) of Section 9.02 has occurred, the Trust
shall be liquidated. The Property Trustee shall distribute the
Junior Subordinated Notes to the Securityholders as provided in
Section 9.04, unless such distribution is determined by the
Administrative Trustees not to be practical, in which event the
Holders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the
Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common
Securities.
ARTICLE X
50
<PAGE>
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 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 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
51
<PAGE>
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. Any Trustee may, but shall not be
obligated to, enter into any such amendment which affects such
Trustee's own rights, duties, immunities or liabilities under
this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to
the Depositor a copy of such amendment.
Section 10.04 Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
52
<PAGE>
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 INTERNAL LAWS OF THE STATE OF DELAWARE; PROVIDED
THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE
SHALL BE GOVERNED BY NEW YORK LAW.
Section 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, first-class postage prepaid, in
the United States mail, hand delivery or facsimile transmission,
in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such
Securityholder's name and address appear on the Securities
Register and (ii) in the case of the Common Securityholder or the
Depositor, to Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, Attention: Corporate Secretary,
Facsimile No. (404) 526-2945, with a copy to Southern Company
Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department, Facsimile No. (770) 821-
4460. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust or the Trustees shall be
given in writing addressed (until another address is published by
the Trust) as follows: (i) with respect to the Property Trustee
and the Delaware Trustee, The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York, 10001, Attention: Corporate Trustee
Administration Department; Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate
Trust Department, as the case may be; and (ii) with respect to
the Administrative Trustees, to them at the address above for
notices to the Depositor, marked Attention: Administrative
Trustees of Georgia Power Capital Trust II c/o Corporate
Secretary. Such notice, demand or other communication to or upon
the Trust or the Trustees shall be deemed to have been
53
<PAGE>
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 undivided beneficial
interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
54
<PAGE>
TERMS OF THE GUARANTEE AND THE SUBORDINATED INDENTURE AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
55
<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,
as Depositor
By:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Title:
Judy M. Anderson,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
56
<PAGE>
EXHIBIT A
[INTENTIONALLY RESERVED]
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 II
_____% 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 II, 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, and the accompanying
Prospectus Supplement 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. The
Chase Manhattan 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
Exhibit B - Page 1
<PAGE>
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 be sent to DTC's Reorganization
Department as indicated in paragraph 6.
3. In the event of a 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 at least 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 at least 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
Exhibit B - Page 2
<PAGE>
shall be confirmed by telephoning (212) 709-6884, or by mail or
any other means to:
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 II, _____% 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 by written notice 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.
Exhibit B - Page 3
<PAGE>
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 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 II
By:
Name: Wayne Boston
Title: Administrative Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee of
Georgia Power Capital Trust II
Exhibit B - Page 4
<PAGE>
By:
Name:
Title:
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 II
Common Securities
(liquidation amount $25 per Common Security)
Georgia Power Capital Trust II, a statutory business trust
created 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
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 II
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 "Agree-
ment") is made as of ___________ ___, 1996, between Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power
Capital Trust II, 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 II _____% 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
Exhibit D - Page 1
<PAGE>
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by the Company and The Chase Manhattan Bank, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall
in no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of,
or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or
exercise any right, privilege, power or remedy conferred on
the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, the Company with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any
right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
Exhibit D - Page 2
<PAGE>
assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to-wit:
Georgia Power Capital Trust II
c/o The Chase Manhattan 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.: (404) 526-2945
Attention: Corporate Secretary
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 II
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 II or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
any transfer, pledge, or other use hereof for value or otherwise
by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
_________
P-1 CUSIP NO. _________
Certificate Evidencing Preferred Securities
of
Georgia Power Capital Trust II
_____% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Georgia Power Capital Trust II, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of ___________________________________________ (_________)
preferred securities of the Trust representing undivided
beneficial interest in the assets of the Trust and designated the
Georgia Power Capital Trust II _____% 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, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of _______ __, 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
Exhibit E - Page 1
<PAGE>
between the Company and The Chase Manhattan Bank, as guarantee
trustee, dated as of _______ __, 1996, as the same may be amended
from time to time (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the holder of this certificate without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
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 II
By:
Judy M. Anderson,
as Administrative Trustee
By:
Wayne Boston,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
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 number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.5-C
REVISED DRAFT
8/14/96
GEORGIA POWER CAPITAL TRUST III
AMENDED AND RESTATED
TRUST AGREEMENT
among
GEORGIA POWER COMPANY, as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee,
and
JUDY M. ANDERSON and WAYNE BOSTON,
as Administrative Trustees
Dated as of _______ __, 1996
<PAGE>
GEORGIA POWER CAPITAL TRUST III
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture 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
Trustees . . . . . . . . . . . . . . . . . . . 34
ARTICLE VIII
The Trustees . . . . . . . . . . . 36
Section 8.01 Certain Duties and Responsibilities . . . . . 36
Section 8.02 Notice of Defaults . . . . . . . . . . . . . . 36
Section 8.03 Certain Rights of Property Trustee . . . . . . 36
Section 8.04 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . 38
Section 8.05 May Hold Securities . . . . . . . . . . . . . 38
Section 8.06 Compensation; Fees; Indemnity . . . . . . . . 38
Section 8.07 Trustees Required; Eligibility . . . . . . . . 39
Section 8.08 Conflicting Interests . . . . . . . . . . . . 39
Section 8.09 Co-Trustees and Separate Trustee . . . . . . . 40
Section 8.10 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . 41
Section 8.11 Acceptance of Appointment by Successor . . . . 42
Section 8.12 Merger, Conversion, Consolidation or
Succession
to Business . . . . . . . . . . . . . . . . . 43
Section 8.13 Preferential Collection of Claims Against
iii
<PAGE>
Depositor or Trust . . . . . . . . . . . . . . 43
Section 8.14 Reports by Property Trustee . . . . . . . . . 44
Section 8.15 Reports to the Property Trustee . . . . . . . 44
Section 8.16 Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 44
Section 8.17 Number of Trustees . . . . . . . . . . . . . . 45
Section 8.18 Delegation of Power . . . . . . . . . . . . . 45
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders . . . . . . . . . . . . . . . 45
ARTICLE IX
Termination and Liquidation . . . . . . . 46
Section 9.01 Termination Upon Expiration Date . . . . . . . 46
Section 9.02 Early Termination . . . . . . . . . . . . . . 46
Section 9.03 Termination . . . . . . . . . . . . . . . . . 47
Section 9.04 Liquidation . . . . . . . . . . . . . . . . . 47
Section 9.05 Bankruptcy . . . . . . . . . . . . . . . . . . 48
ARTICLE X
Miscellaneous Provisions . . . . . . . . 49
Section 10.01 Guarantee by the Depositor . . . . . . . . . . 49
Section 10.02 Limitation of Rights of Securityholders . . . 49
Section 10.03 Amendment . . . . . . . . . . . . . . . . . . 49
Section 10.04 Separability . . . . . . . . . . . . . . . . . 51
Section 10.05 Governing Law . . . . . . . . . . . . . . . . 51
Section 10.06 Successors . . . . . . . . . . . . . . . . . . 51
Section 10.07 Headings . . . . . . . . . . . . . . . . . . . 51
Section 10.08 Notice and Demand . . . . . . . . . . . . . . 51
Section 10.09 Agreement Not to Petition . . . . . . . . . . 52
iv
<PAGE>
Section 10.10 Conflict with Trust Indenture Act . . . . . . 52
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B Form of Certificate Depository Agreement
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
v
<PAGE>
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) The
Chase Manhattan Bank, a banking corporation duly organized and
existing under the laws of New York, as trustee (the "Property
Trustee" and, in its separate corporate capacity and not in its
capacity as Trustee, the "Bank"), (iii) Chase Manhattan Bank
Delaware, a banking corporation duly organized under the laws of
Delaware, as Delaware trustee (the "Delaware Trustee" and, in its
separate corporate capacity and not in its capacity as Delaware
Trustee, the "Delaware Bank"), (iv) 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 June 13, 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 June 13, 1996, as
amended by that certain Certificate of Amendment, dated July 23,
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,
Judy M. Anderson and Wayne Boston as trustees of the Trust, (ii)
the acquisition by the Trust from the Depositor of all of the
right, title and interest in the Junior Subordinated Notes, (iii)
the issuance of the Common Securities by the Trust to the
Depositor, and (iv) the issuance and sale of the Preferred
Securities by the Trust pursuant to the Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged,
each party, for the benefit of the other parties and for the
benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
1
<PAGE>
2
<PAGE>
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 and continued hereunder and not in
their individual capacities, or such trustee's successor(s) in
interest in such capacity, or any successor "Administrative
Trustee" appointed as herein provided.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
3
<PAGE>
"Bank" has the meaning specified in the preamble to this
Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt
or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under federal
bankruptcy law or any other applicable federal or state law,
or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Person or of
any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the
continuance of such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law,
or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or similar official of such Person or
of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of action by
such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section
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
certificates representing Preferred Securities issued in global,
fully registered form to the 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 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
4
<PAGE>
Indenture Trustee's principal corporate trust office is closed
for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the
initial Clearing Agency, dated as of the Issue Date, relating to
the Preferred Securities Certificates, substantially in the form
attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository Trust Company
will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to
time a Clearing Agency effects book-entry transfers and pledges
of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount
of $25 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate
evidencing ownership of a Common Security or Securities,
substantially in the form attached as Exhibit C.
"Company" means Georgia Power Company.
"Corporate Trust Office" means the office of the Property
Trustee 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.
5
<PAGE>
"Delaware Bank" has the meaning specified in the preamble to
this Trust Agreement.
"Delaware Business Trust Act" means Chapter 38 of Title 12
of the Delaware Code, 12 Del. Code Section 3801 et seq., as it
may be amended from time to time.
"Delaware Trustee" means the commercial bank or trust
company or any other Person identified as the "Delaware Trustee"
and has the meaning specified in the preamble to this Trust
Agreement solely in its capacity as Delaware Trustee of the Trust
formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided.
"Depositor" means 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 Trust in the payment of any
Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Trust in the payment of any
Redemption Price of any Trust Security when it becomes due
and payable; or
(iv) default in the performance, or breach, of any
covenant or warranty of the Trustees in this Trust Agreement
(other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (ii) or (iii)
above) and continuation of such default or breach for a
period of 60 days after there has been given, by registered
or certified mail, to the Trustees by the Holders of at
least 10% in Liquidation Amount of the Outstanding Preferred
Securities a written notice specifying such default or
6
<PAGE>
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(v) the occurrence of a Bankruptcy Event with respect
to the Trust.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in
the form attached as Exhibit D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and The Chase Manhattan Bank, as
Guarantee Trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the Holders
of the Preferred Securities, as amended from time to time.
"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.
7
<PAGE>
"Liquidation Amount" means the stated amount of $25 per
Trust Security.
"Liquidation Date" means the date on which Junior
Subordinated Notes are to be distributed to Holders of Trust
Securities in connection with a dissolution and liquidation of
the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in
Section 9.05.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the
Depositor, and delivered to the appropriate Trustee. One of the
officers signing an Officers' Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or
accounting officer of the Depositor. An Officers' Certificate
delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in
rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such
officer's opinion, to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees or the Depositor, but
not an employee of the Trust or the Trustees, and who shall be
reasonably acceptable to the Property Trustee. Any Opinion of
Counsel pertaining to federal income tax matters may rely on
published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred
Securities, means, as of the date of determination, all Preferred
8
<PAGE>
Securities theretofore authenticated and delivered under this
Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by
the Administrative Trustees or delivered to the
Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Preferred Securities;
provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(iii) Preferred Securities 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.
9
<PAGE>
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for
the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Notes will be held and from
which the Property Trustee shall make payments to the
Securityholders in accordance with Section 4.01.
"Person" means an individual, corporation, partnership,
joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or
political subdivision thereof.
"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" are
described in Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities
Register; any such Person is a beneficial owner within the
meaning of the Delaware Business Trust Act.
10
<PAGE>
"Subordinated Indenture" means the Subordinated Note
Indenture, dated as of August 1, 1996, between the Depositor and
the Indenture Trustee, as supplemented by the Supplemental
Indenture.
"Supplemental Indenture" means the __________ 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.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented
in accordance with the applicable provisions hereof, including
all exhibits hereto, including, for all purposes of this Amended
and Restated Trust Agreement and any modification, amendment or
supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement,
respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as
Trustees of the Trust formed and continued hereunder and not in
their individual capacities, or their successor in interest in
such capacity, or any successor trustee appointed as herein
provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes,
(ii) any cash on deposit in, or owing to, the Payment Account,
and (iii) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed
to be held by the Property Trustee pursuant to this Trust
Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of _______ __, 1996, among the Trust, the Depositor and
the underwriters named therein.
11
<PAGE>
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be
known as "Georgia Power Capital Trust III", in which name the
Trustees may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue
and be sued. The Administrative Trustees may change the name of
the Trust from time to time following written notice to the
Holders.
Section 2.02 Offices of the Trustees; Principal Place of
Business. The address of the Property Trustee is The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001,
or at such other address as the Property Trustee may designate by
written notice to the Securityholders and the Depositor. The
principal place of business of the Delaware Trustee is 1201
Market Street, Wilmington, Delaware, 19801, or at such other
address in Delaware as the Delaware Trustee may designate by
notice to the Depositor. The address of the Administrative
Trustees is c/o Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, Attention: Corporate Secretary. 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.
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall execute and deliver to the underwriters named in the
Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of _________ 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.
12
<PAGE>
Section 2.05 Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common Securities.
Contemporaneously with the execution and delivery of this Trust
Agreement, the Administrative Trustees, on behalf of the Trust,
shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an
aggregate amount of ________ Common Securities having an
aggregate Liquidation Amount of $______, against payment by the
Depositor of such amount. Contemporaneously therewith, the
Administrative Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Junior Subordinated Notes,
registered in the name of the Property Trustee, on behalf of the
Trust and the Holders, and having an aggregate principal amount
equal to $___________, and, in satisfaction of the purchase price
for such Junior Subordinated Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of
$___________.
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,
Judy M. Anderson and Wayne Boston as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth
herein. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the
Securityholders. The Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law
with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of
the Trustees for the sole and limited purpose of fulfilling the
requirements of the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain
Transactions. The Trustees shall conduct the affairs of the
Trust in accordance with the terms of this Trust Agreement.
Subject to the limitations set forth in paragraph C of this
Section, and in accordance with the following paragraphs A and B,
the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Trust Agreement, and
to perform all acts in furtherance thereof, including without
limitation, the following:
13
<PAGE>
A. As among the Trustees, the Administrative Trustees,
acting singly or jointly, shall have the exclusive power, duty
and authority to act on behalf of the Trust with respect to the
following matters:
(i) to acquire the Junior Subordinated Notes with
the proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title
to all of the Junior Subordinated Notes to be vested in, and
the Junior Subordinated Notes to be held of record in the
name of, the Property Trustee for the benefit of the Trust
and Holders of the Trust Securities;
(ii) to give the Depositor and the Property
Trustee prompt written notice of the occurrence of any
Special Event (as defined in the Supplemental Indenture) and
to take any ministerial actions in connection therewith;
provided, that the Administrative Trustees shall consult
with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a
Special Event;
(iii) to establish a record date with respect to
all actions to be taken hereunder that require a record date
be established, including for the purposes of Section 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 Section 314(a)(4) of the Trust Indenture Act,
which certificate may be executed by any Administrative
Trustee;
(viii) to take all actions and perform such duties
as may be required of the Administrative Trustees pursuant
to the terms of this Trust Agreement;
14
<PAGE>
(ix) to take all action that may be necessary or
appropriate for the preservation and the continuation of the
Trust's valid existence, rights, franchises and privileges
as a statutory business trust under the laws of the State of
Delaware and of each other jurisdiction in which such
existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust
to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Expense Agreement and the Certificate Depository Agreement
and such other agreements as may be necessary or desirable
in connection with the consummation hereof;
(xiii) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and
the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing;
(xv) to send notices (other than notices of
default) and other information regarding the Trust
Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section
5.09), 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
15
<PAGE>
filing of the certificate of cancellation with the Secretary
of State of the State of Delaware; and
(xix) to take any action incidental to the
foregoing as the Administrative Trustees may from time to
time determine is necessary, appropriate, convenient or
advisable to protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have
the exclusive power, duty and authority to act on behalf of the
Trust with respect to the following matters:
(i) engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
redemption of the Trust Securities to the extent the Junior
Subordinated Notes are redeemed or mature;
(ii) upon notice of distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of
the rights, powers and privileges of a holder of the Junior
Subordinated Notes under the Subordinated Indenture and, if
an Event of Default occurs and is continuing, shall enforce
for the benefit of, and subject to the rights of, the
Holders of the Trust Securities, its rights as holder of the
Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as
may be specifically required of the Property Trustee
pursuant to the terms of this Trust Agreement;
(v) take any Legal Action specifically required
of the Property Trustee pursuant to the terms of this Trust
Agreement which arises out of or in connection with an Event
of Default or the Property Trustee's duties and obligations
under this Trust Agreement, the Delaware Business Trust Act
or the Trust Indenture Act;
(vi) the establishment and maintenance of the
Payment Account;
(vii) the receipt of and holding of legal title to
the Junior Subordinated Notes as described herein;
16
<PAGE>
(viii) the collection of interest, principal and any
other payments made in respect of the Junior Subordinated
Notes in the Payment Account;
(ix) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(x) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Notes to the Securityholders in accordance with
this Trust Agreement;
(xi) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the
winding up of the affairs of and termination of the Trust
and the preparation, execution and filing of the certificate
of cancellation with the Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary, appropriate, convenient or advisable
to protect and conserve the Trust Property for the benefit
of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not
undertake any business, activities or transaction except as
expressly provided herein or contemplated hereby. In particular,
the Trustees shall not (i) acquire any investments or engage in
any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose
of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take
any action that would cause the Trust to fail or cease to qualify
as a grantor trust for United States federal income tax purposes,
(iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a
Lien on any of the Trust Property, (vi) issue any securities
other than the Trust Securities, or (vii) have any power to, or
agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The
Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse
to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility
17
<PAGE>
to assist the Trust with respect to, or effect on behalf of the
Trust, the following (and any actions taken by the Depositor in
furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by or on behalf
of the Trust, and advise the Trustees of actions they must
take on behalf of the Trust, and prepare for execution and
filing any documents to be executed and filed by the Trust
or on behalf of the Trust, as the Depositor deems necessary
or advisable in order to comply with the applicable laws of
any such States;
(iii) to prepare for filing by the Trust an
application to the New York Stock Exchange or any other
national stock exchange or the NASDAQ National Market for
listing upon notice of issuance of any Preferred Securities;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred Securities
and to execute, deliver and perform the Underwriting
Agreement on behalf of the Trust; and
(vi) any other actions necessary, incidental,
appropriate or convenient to carry out any of the foregoing
activities.
E. Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct
the affairs of the Trust and to operate the Trust so that the
Trust will not be deemed to be an "investment company" required
to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States
federal income tax purposes and so that the Junior Subordinated
Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the Certificate
of Trust or this Trust Agreement, that each of the Depositor and
18
<PAGE>
the Administrative Trustees determines in its discretion to be
necessary or desirable for such purposes, as long as such action
does not materially and adversely affect the interests of the
Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust
shall consist of the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and
administered by the Property Trustee for the benefit of the
Securityholders and the Trust in accordance with this Trust
Agreement. The right, title and interest of the Property Trustee
to the Junior Subordinated Notes shall vest automatically in each
Person who may thereafter be appointed as Property Trustee in
accordance with the terms hereof. Such vesting and cessation of
title shall be effective whether or not conveyancing documents
have been executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The
Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other
body, except as described below or otherwise provided in this
Trust Agreement. The Trust may at the request of the Company,
with the consent of the Administrative Trustees and without the
consent of the Holders of the Trust Securities, consolidate,
amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any state; provided, that (i)
such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or
(y) substitutes for the Preferred Securities other securities
having substantially the same terms as the Trust Securities
(herein referred to as the "Successor Securities") so long as the
Successor Securities rank the same as the Trust Securities rank
in priority with respect to Distributions and payments upon
liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same
powers and duties as the Property Trustee as the holder of legal
title to the Junior Subordinated Notes, (iii) the Preferred
Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect,
19
<PAGE>
(vi) such successor entity has a purpose substantially identical
to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, or replacement, the Company has received an Opinion
of Counsel to the effect that (A) such merger, consolidation,
amalgamation or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be
required to register as an investment company under the
Investment Company Act of 1940, and (viii) the Company guarantees
the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with
the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other
than a grantor trust for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee
shall establish the Payment Account. The Property Trustee and an
agent of the Property Trustee shall have exclusive control and
sole right of withdrawal with respect to the Payment Account for
the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All
monies and other property deposited or held from time to time in
the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal or
interest on, and any other payments or proceeds with respect to,
the Junior Subordinated Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
20
<PAGE>
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").
(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) 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.
21
<PAGE>
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 Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities
are to be redeemed, the total Liquidation Amount of the
Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price
will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from
the contemporaneous redemption of Junior Subordinated Notes.
Redemptions of the Trust Securities shall be made and the
Redemption Price shall be deemed payable on each Redemption Date
only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 2:00 p.m. New York
time, on the Redemption Date, subject to Section 4.02(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
22
<PAGE>
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 Securities 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 Redemption Price shall be made on the
immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of Trust Securities is
improperly withheld or refused and not paid either by the Trust
or by the Depositor pursuant to the Guarantee, Distributions on
such Trust Securities will continue to accrue at the then
applicable rate, from such Redemption Date originally established
by the Trust for such Preferred Securities to the date such
Redemption Price is actually paid.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the
Securities Register for the Trust Securities on the relevant
record date, 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
23
<PAGE>
undertaking redemption of the Preferred Securities on other than
a pro rata basis, the Property Trustee shall have received an
Opinion of Counsel that the status of the Trust as a grantor
trust for federal income tax purposes would not be adversely
affected. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust
Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount
of Preferred Securities which has been or is to be redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and
to applicable law (including, without limitation, United States
federal securities laws), the Company or its Affiliates may, at
any time and from time to time, purchase outstanding Preferred
Securities by tender, in the open market or by private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts,
if applicable) on, and the Redemption Price of, the Trust
Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however,
that if on any Distribution Date or Redemption Date an Indenture
Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions (including Additional Amounts, if applicable) on
all Outstanding Preferred Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or
provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of
all Distributions (including Additional Amounts, if applicable)
on, or Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have
waived any such Event of Default under this Trust Agreement until
the effect of all such Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise
eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so
24
<PAGE>
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. The Administrative
Trustee(s) shall provide or cause to be provided on a timely
basis to each Holder any Internal Revenue Service form required
to be so provided in respect of the Trust Securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the
Trust by the contribution by the Depositor pursuant to Section
2.03 and until the issuance of the Trust Securities, and at any
time during which no Trust Securities are outstanding, the
Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of
the Preferred and Common Securities Certificates shall be issued
in minimum denominations of $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
25
<PAGE>
Securities Certificate shall become a Securityholder, and shall
be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to
Section 5.04.
Section 5.03 Authentication of Trust Securities
Certificates. On the Issue Date, the Administrative Trustees
shall cause Trust Securities Certificates, in an aggregate
Liquidation Amount as provided in Sections 2.04 and 2.05, to be
executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman
of the Board, its President or any Vice President, without
further corporate action by the Depositor, in authorized
denominations. No Trust Securities Certificate shall entitle its
holder to any benefit under this Trust Agreement, or shall be
valid for any purpose, unless there shall appear on such Trust
Securities Certificate a certificate of authentication
substantially in the form set forth in Exhibit E or Exhibit C, as
applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive
evidence that such Trust Securities Certificate shall have been
duly authenticated and delivered hereunder. All Trust Securities
Certificates shall be dated the date of their authentication.
Section 5.04 Registration of Transfer and Exchange of
Preferred Securities Certificates. The Securities Registrar
shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a Securities Register in
which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the
registration of Preferred Securities Certificates and the Common
Securities Certificates (subject to Section 5.10 in the case of
the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities
Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained
pursuant to Section 5.08, the Administrative Trustees shall
execute, authenticate and deliver in the name of the designated
transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the
Administrative Trustee or Trustees. The Securities Registrar
shall not be required to register the transfer of any Preferred
Securities that have been called for redemption. At the option
of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate
Liquidation Amount upon surrender of the Preferred Securities
26
<PAGE>
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 Securities Registrar in
accordance with its customary practice.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but
the Securities Registrar or the Administrative Trustees may
require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities
Certificate shall be surrendered to the Securities Registrar, or
if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such
security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on
behalf of the Trust shall execute and authenticate and make
available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class,
tenor and denomination. In connection with the issuance of any
new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
Any duplicate Trust Securities Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership
interest in the Trust, as if originally issued, whether or not
the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due
presentation of a Trust Securities Certificate for registration
of transfer, the Trustees or the Securities Registrar shall treat
the Person in whose name any Trust Securities Certificate shall
be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving
27
<PAGE>
Distributions (subject to Section 4.01(d)) and for all other
purposes whatsoever, and neither the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and
Addresses. The Administrative Trustees shall furnish or cause to
be furnished to (i) the Depositor and the Property Trustee semi-
annually, not later than June 1 and December 1 in each year, and
(ii) the Depositor or the Property Trustee, as the case may be,
within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as
the case may be, in writing, a list, in such form as the
Depositor or the Property Trustee, as the case may be, may
reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the
time such list is furnished. If three or more Securityholders or
one or more Holders of Trust Securities Certificates evidencing
not less than 25% of the outstanding Liquidation Amount apply in
writing to the Administrative Trustees, and such application
states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust
Agreement or under the Trust Securities Certificates and such
application is accompanied by a copy of the communication that
such applicants propose to transmit, then the Administrative
Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal
business hours to the current list of Securityholders. Each
Holder, by receiving and holding a Trust Securities Certificate,
shall be deemed to have agreed not to hold either the Depositor
or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from
which such information was derived.
Section 5.08 Maintenance of Office or Agency. The
Administrative Trustees shall maintain in the Borough of
Manhattan, New York, an office or offices or agency or agencies
where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served. The Administrative
Trustees initially designate The Chase Manhattan Bank, 450 West
33rd Street, New York, New York 10001, as its principal agency
for such purposes. The Administrative Trustees shall give prompt
written notice to the Depositor and to the Securityholders of any
change in the location of the Securities Register or any such
office or agency.
Section 5.09 Appointment of Paying Agent. The Paying
Agent shall make Distributions and other payments provided hereby
to Securityholders from the Payment Account and shall report the
amounts of such Distributions and payments to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall
28
<PAGE>
have the revocable power to withdraw funds from the Payment
Account for the purpose of making the Distributions and payments
provided hereby. The Administrative Trustees may revoke such
power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to
perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property
Trustee, and it may choose any co-paying agent that is acceptable
to the Administrative Trustees and the Depositor. Any Person
acting as Paying Agent shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Administrative Trustees
and the Depositor. In the event that a Paying Agent shall resign
or be removed, the Administrative Trustees shall appoint a
successor that is acceptable to the Depositor to act as Paying
Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent
or any additional Paying Agent appointed by the Administrative
Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in
trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
Paying Agent shall return all unclaimed funds to the Property
Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall
apply to the Property Trustee also in its role as Paying Agent,
for so long as the Property Trustee shall act as Paying Agent
and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context
requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor.
On the Issue Date, the Depositor shall acquire, and thereafter
retain, beneficial and record ownership of the Common Securities.
Any attempted transfer of the Common Securities, except for
transfers by operation of law, shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS
NOT TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates;
Common Securities Certificate.
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred
Securities Certificate or Certificates representing Book-Entry
Preferred Securities Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on
29
<PAGE>
behalf of, the Trust. Such Preferred Securities Certificate or
Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a definitive Preferred
Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in
Section 5.13. Unless and until Definitive Preferred Securities
Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall
be in full force and effect;
(ii) the Securities Registrar and the Trustees
shall be entitled to deal with the Clearing Agency for all
purposes of this Trust Agreement relating to the Book-Entry
Preferred Securities Certificates (including the payment of
principal of and interest on the Book-Entry Preferred
Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no
obligations to the Owners thereof;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Trust
Agreement, the provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and
the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.13, the Clearing Agency will
make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the
Preferred Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the
Common Securities shall be issued to the Depositor in the form of
a definitive Common Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a
notice or other communication to the Owners is required under
this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant
to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the
Clearing Agency, and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates.
If (i) the Depositor advises the Trustees in writing that the
30
<PAGE>
Clearing Agency is no longer willing or able to properly
discharge its responsibilities with respect to the Preferred
Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-
entry system through the Clearing Agency, then the Administrative
Trustees shall notify the Clearing Agency and Holders of the
Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or
Certificates representing the Book-Entry Preferred Securities
Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees or any one of them
shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of
the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities
Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of
them.
Section 5.14 Rights of Securityholders. The legal title
to the Trust Property is vested exclusively in the Property
Trustee (in its capacity as such) in accordance with Section
2.09, and the Securityholders shall not have any right or title
therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they
shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described
below. The Trust Securities shall be personal property giving
only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or
other similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor,
except as otherwise provided in the Expense Agreement and Section
10.01 hereof, will be fully paid and nonassessable by the Trust.
Except as otherwise provided in the Expense Agreement and Section
10.01 hereof, the Holders of the Trust Securities shall be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
31
<PAGE>
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or
Section 10.03 of this Trust Agreement, in the Subordinated
Indenture, and as otherwise required by law, no Holder of
Preferred Securities shall have any right to vote or in any
manner otherwise control the administration, operation and
management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of
the Trust Securities Certificates, be construed so as to
constitute the Securityholders from time to time as partners or
members of an association.
(b) So long as any Junior Subordinated Notes are held by
the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such
Junior Subordinated Notes, (ii) waive any past default which is
waivable under Section 513 of the Subordinated Indenture, (iii)
exercise any right to rescind or annul a declaration that the
principal of all the Junior Subordinated Notes shall be due and
payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior
Subordinated Notes, where such consent shall be required, or to
any other action, as holder of the Junior Subordinated Notes,
under the Subordinated Indenture, without, in each case,
obtaining the prior approval of the Holders of at least 66-2/3%
in Liquidation Amount of the Preferred Securities; provided,
however, that where a consent under the Subordinated Indenture
would require the consent of each holder of Junior Subordinated
Notes affected thereby, no such consent shall be given by the
Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of
Preferred Securities, except pursuant to a subsequent vote of the
Holders of Preferred Securities. The Property Trustee shall
notify all Holders of the Preferred Securities of any notice of
default received from the Indenture Trustee with respect to the
Junior Subordinated Notes. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall,
at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as other than a grantor trust for United States
federal income tax purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i)
any action that would adversely affect the powers, preferences or
special rights of the Preferred Securities, whether by way of
amendment to this Trust Agreement or otherwise, or (ii) the
32
<PAGE>
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.
Section 6.03 Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of
Securityholders to vote on any matter upon the written request of
the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time
in their discretion, call a meeting of Preferred Securityholders
to vote on any matters as to which Preferred Securityholders are
entitled to vote.
Preferred Securityholders of record of 50% of the Preferred
Securities (based upon their Liquidation Amount), present in
person or by proxy, shall constitute a quorum at any meeting of
Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Preferred Securityholders of record present, in person or by
proxy, holding more than 66-2/3% of the Preferred Securities
(based upon their Liquidation Amount) held by the Preferred
Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the
Securityholders, unless this Trust Agreement requires a greater
number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be
entitled to one vote for each $25 of Liquidation Amount
33
<PAGE>
represented by their Trust Securities in respect of any matter as
to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of
Securityholders, any Securityholder entitled to vote may vote by
proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative
Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to
vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in
respect of such Trust Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such
joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such
Trust Securities. A proxy purporting to be executed by or on
behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger. No proxy shall be valid
more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may
be taken without a meeting if Securityholders holding at least
66-2/3% of all outstanding Trust Securities entitled to vote in
respect of such action (or such other proportion thereof as shall
be required by any express provision of this Trust Agreement)
shall consent to the action in writing (based upon their
Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written
consent, or to participate in any Distribution on the Trust
Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any
meeting of Securityholders or the payment of Distribution or
other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record
for such purposes.
Section 6.08 Acts of Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be
given, made or taken by Securityholders may be embodied in and
evidenced by one or more instruments of substantially similar
34
<PAGE>
tenor signed by such Securityholders in person or by an agent
appointed in writing; and, except as otherwise expressly provided
herein, such action shall become effective when such instrument
or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgements of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other
manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust
Security shall bind every future Securityholder of the same Trust
Security and the Securityholder of every Trust Security issued
upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such
Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any
part of the Liquidation Amount of such Trust Security or by one
or more duly appointed agents each of which may do so pursuant to
such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders of
Trust Securities and the Administrative Trustees or among such
Securityholders or Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or
35
<PAGE>
Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect
to such matter.
Section 6.09 Inspection of Records. Upon reasonable
notice to the Trustees, the records of the Trust shall be open to
inspection by Securityholders during normal business hours for
any purpose reasonably related to such Securityholder's interest
as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the
Trustees. The Bank, the Delaware Bank, the Property Trustee and
the Delaware Trustee, each on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the
Securityholders that:
(a) the Bank is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws
of the State of New York, and the Delaware Trustee is a banking
corporation or trust company duly organized, validly existing and
in good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full
corporate power, authority and legal right to execute, deliver
and perform their obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed
and delivered by each of the Bank and the Delaware Bank and
constitutes the valid and legally binding agreement of each of
the Bank and the Delaware Bank, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles;
(d) the execution, delivery and performance by each of the
Bank and the Delaware Bank of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the
Bank, the Property Trustee, the Delaware Bank and the Delaware
Trustee and do not require any approval of stockholders of the
Bank or the Delaware Bank and such execution, delivery and
performance will not (i) violate the Bank's or the Delaware
Bank's Charter or By-laws, or (ii) violate any law, governmental
rule or regulation of the United States or the State of New York
or Delaware, as the case may be, governing the banking or trust
36
<PAGE>
powers of the Bank and the Property Trustee or the Delaware Bank
and the Delaware Trustee, or any order, judgment or decree
applicable to the Bank, the Property Trustee, the Delaware Bank
or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the
Bank or the Delaware Bank of this Trust Agreement, nor the
consummation of any of the transactions by the Bank, the Property
Trustee, the Delaware Bank or the Delaware Trustee (as
appropriate in context) contemplated herein or therein, nor the
issuance of the Trust Securities Certificates pursuant to this
Trust Agreement require the consent or approval of, the giving of
notice to, the registration with or the taking of any other
action with respect to any governmental authority or agency under
any existing federal, New York or Delaware law governing the
banking or trust powers of the Bank or the Delaware Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees
shall be as provided by this Trust Agreement and, in the case of
the Property Trustee, the Trust Indenture Act. Notwithstanding
the foregoing, no provision of this Trust Agreement shall require
the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them. Whether or not
therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of
or affording protection to the Trustees shall be subject to the
provisions of this Section.
(b) All payments made by the Property Trustee in respect of
the Trust Securities shall be made only from the income and
proceeds from the Trust Property and only to the extent that
there shall be sufficient income or proceeds from the Trust
Property to enable the Property Trustee to make payments in
accordance with the terms hereof. Each Securityholder, by its
acceptance of a Trust Security, agrees that it will look solely
to the income and proceeds from the Trust Property to the extent
available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. This Section 8.01(b)
does not limit the liability of the Trustees expressly set forth
37
<PAGE>
elsewhere in this Trust Agreement or, in the case of the Property
Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the
occurrence of any default, the Property Trustee shall transmit,
in the manner and to the extent provided in Section 10.08, notice
of any default known to the Property Trustee to the
Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the
purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time or both would become, an
Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject
to the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written
representation of a Holder or transferee, certificate
of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust
Agreement the Property Trustee is required to decide
between alternative courses of action, or (B) in
construing any of the provisions in this Trust
Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained
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 action, as the
Property Trustee shall be instructed in writing to
take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice,
or such reasonably shorter period of time set forth in
such notice (which to the extent practicable shall not
be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such
action not inconsistent with this Trust Agreement as it
shall deem advisable and in the best interests of the
38
<PAGE>
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; and
(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.
39
<PAGE>
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 willful misconduct,
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 willful misconduct, negligence or bad
faith on their part, arising out of or in connection with the
acceptance or administration of this Trust Agreement, including
the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of
such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to
the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
40
<PAGE>
in the manner and with the effect hereinafter specified in this
Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each
Administrative Trustee shall be either a natural person who is at
least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind such entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age
and a resident of the State of Delaware or (ii) a legal entity
authorized to conduct a trust business and with its principal
place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in
which any part of the Trust Property may at the time be located,
the Holder of the Common Securities and the Property Trustee
shall have power to appoint, and upon the written request of the
Property Trustee, the Depositor shall for such purpose join with
the Property Trustee in the execution, delivery and performance
of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to
act as co-trustee, jointly with the Property Trustee, of all or
any part of such Trust Property, or to act as separate trustee of
any such Trust Property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the
other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate
trustee appointed pursuant to this Section shall satisfy the
requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully
41
<PAGE>
confirming to such co-trustee or separate trustee such property,
title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged, and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject
to the following terms, namely:
(i) The Trust Securities shall be executed,
authenticated and delivered and all rights, powers, duties,
and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations
hereby conferred or imposed upon the Property Trustee in
respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed by the
Property Trustee or by the Property Trustee and such co-
trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed,
the Property Trustee shall be incompetent or unqualified to
perform such act, in which event such rights, powers,
duties, and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an
instrument in writing executed by it, with the written
concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under
this Section, and, in case an Indenture Event of Default has
occurred and is continuing, the Property Trustee shall have
power to accept the resignation of, or remove, any such co-
trustee or separate trustee without the concurrence of the
Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee
in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee
or separate trustee so resigned or removed may be appointed
in the manner provided in this Section.
(iv) No co-trustee or separate trustee hereunder
shall be personally liable by reason of any act or omission
of the Property Trustee, or any other such trustee
hereunder.
42
<PAGE>
(v) The Trustees shall not be liable by reason of
any act of a co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 8.10 Resignation and Removal; Appointment of
Successor. No resignation or removal of any Trustee (the
"Relevant Trustee") and no appointment of a successor Relevant
Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Relevant Trustee in
accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving
written notice thereof to the Securityholders. If the instrument
of acceptance by a successor Relevant Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within
30 days after the giving of such notice of resignation, the
resigning Relevant Trustee may petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and
be continuing, the Relevant Trustee may be removed at any time by
Act of the Holder of the Common Securities. If an Indenture
Event of Default shall have occurred and be continuing, the
Relevant Trustee may be removed at such time by Act of the
Securityholders of a majority in Liquidation Amount of the
Preferred Securities Certificates, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as Trustee at a time when no
Indenture Event of Default shall have occurred and be continuing,
the Holder of the Common Securities, by Act of the Holder of the
Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees,
and the retiring Relevant Trustee shall comply with the
applicable requirements of Section 8.11. If the Relevant Trustee
shall resign, be removed or become incapable of continuing to act
as the Relevant Trustee at a time when an Indenture Event of
Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority
in Liquidation Amount of the Preferred Securities then
outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and
the Relevant Trustee shall comply with the applicable
requirements of Section 8.11. If no successor Relevant Trustee
shall have been so appointed in accordance with this Section 8.10
and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and
43
<PAGE>
all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each
resignation and each removal of the Relevant Trustee, and each
appointment of a successor Trustee to all Securityholders in the
manner provided in Section 10.08 and shall give notice to the
Depositor. Each notice shall include the name of the successor
Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a
Delaware Trustee who is a natural person dies or becomes
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the act of the
remaining Administrative Trustee or (ii) otherwise by the
Depositor (with the successor in each case being an individual
who satisfies the eligibility requirement for Administrative
Trustees set forth in Section 8.07). Additionally,
notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event the Depositor believes that any
Administrative Trustee has become incompetent or incapacitated,
the Depositor, by notice to the remaining Trustees, may terminate
the status of such Person as an Administrative Trustee (in which
case the vacancy so created will be filled in accordance with the
preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed shall
execute, acknowledge and deliver to the Trust and to the retiring
Relevant Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Relevant Trustee; but, on the request of the
Depositor or the successor Relevant Trustee, such retiring
Relevant Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Relevant
Trustee all the rights, powers and trusts of the retiring
Relevant Trustee and shall duly assign, transfer and deliver to
such successor Relevant Trustee all property and money held by
such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the
Trust shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant
Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
44
<PAGE>
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant
Trustee shall be qualified and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or
Succession to Business. Any Person into which the Property
Trustee, Delaware Trustee or any Administrative Trustee which is
not a natural person may be merged or converted or with which it
may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall
be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be
the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against
Depositor or Trust. If and when the Property Trustee shall be or
become a creditor of the Depositor or the Trust (or any other
obligor upon the Junior Subordinated Notes or the Trust
Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of
claims against the Depositor or Trust (or any such other
obligor). For purposes of Section 311(b)(4) and (6) of the Trust
Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable
upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Depositor or the Trust (or any such
obligor) for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale
of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor
relationship with the Depositor or the Trust (or any such
obligor) arising from the making, drawing, negotiating or
incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
45
<PAGE>
(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 Trust Agreement or the preceding May
15.
(b) The Property Trustee shall transmit to Securityholders
the reports required by Section 313(b) of the Trust Indenture Act
at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and
(d) of the Trust Indenture Act.
Section 8.15 Reports to the Property Trustee. The
Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act
(if any) and, within 120 days after the end of each fiscal year
of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the
manner required by Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions
Precedent. Each of the Depositor and the Administrative Trustees
on behalf of the Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Trust Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given pursuant to
Section 314(c)(1) of the Trust Indenture Act shall comply with
Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four,
provided that the Depositor by written instrument may increase or
decrease the number of Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur. The vacancy
shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy
in the number of Administrative Trustees shall occur, until such
46
<PAGE>
vacancy is filled by the appointment of an Administrative Trustee
in accordance with Section 8.10, the Administrative Trustees in
office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted
to the Administrative Trustees and shall discharge the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of
executing any documents contemplated in Section 2.07(A),
including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to
delegate from time to time to such of their number the doing of
such things and the execution of such instruments either in the
name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay Distributions in
full on the Preferred Securities for more than __ 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 this Trust Agreement,
including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Junior
Subordinated Notes, provided that such direction shall not be in
conflict with any rule of law or with this Trust Agreement, and
could not involve the Property Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate.
If the Property Trustee fails to enforce its rights under the
Junior Subordinated Notes, a Holder of Preferred Securities may,
to the fullest extent permitted by applicable law, institute a
legal proceeding against the Company to enforce its rights under
this Trust Agreement without first instituting any legal
proceeding against the Property Trustee or any other Person,
including the Trust; it being understood and intended that no one
or more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
47
<PAGE>
Trust Agreement to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any
right under this Trust Agreement, except in the manner herein
provided and for the equal and ratable benefit of all such
Holders. Notwithstanding the foregoing, a holder of Preferred
Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against the
Property Trustee or any other person or entity, for enforcement
of payment to such holder of principal of or interest on the
Series __ Junior Subordinated Notes having a principal amount
equal to the aggregate stated liquidation amount of the Preferred
Securities of such holder on or after the due dates specified in
the Series __ Junior Subordinated Notes.
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 in
respect of the Depositor, dissolution or liquidation of the
Depositor, or the dissolution of the Trust pursuant to
judicial decree;
(ii) the delivery of written direction to the
Property Trustee by the Depositor at any time (which
direction is optional and wholly within the discretion of
the Depositor) to terminate the Trust and distribute the
Junior Subordinated Notes to Securityholders as provided in
Section 9.04; and
(iii) the payment at maturity or redemption of all
of the Junior Subordinated Notes, and the consequent payment
of the Preferred Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby
shall terminate upon the latest to occur of the following: (a)
the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.04, or upon
the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed
48
<PAGE>
hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; and (c) the discharge
of all administrative duties of the Administrative Trustees,
including the performance of any tax reporting obligations with
respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii)
of Section 9.02 occurs, the Trust shall be liquidated and the
Property trustee shall distribute the Junior Subordinated Notes
to the Securityholders as provided in this Section 9.04.
(b) In connection with a distribution of the Junior
Subordinated Notes, each Holder of Trust Securities shall be
entitled to receive, after the satisfaction of liabilities to
creditors of the Trust (as evidenced by a certificate of the
Administrative Trustees), a Like Amount of Junior Subordinated
Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor
more than 60 days prior to the Liquidation Date to each Holder of
Trust Securities at such Holder's address appearing in the
Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation
Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like
Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities
Certificates for Junior Subordinated Notes as the
Administrative Trustees or the Property Trustee shall deem
appropriate.
(c) In order to effect the liquidation of the Trust and
distribution of the Junior Subordinated Notes to Securityholders,
the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the
Liquidation Date) and, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall
establish such procedures as it shall deem appropriate to effect
the distribution of Junior Subordinated Notes in exchange for the
Outstanding Trust Securities Certificates.
(d) After the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates
representing a Like Amount of Junior Subordinated Notes will be
issued to Holders of Trust Securities Certificates, upon
49
<PAGE>
surrender of such certificates to the Administrative Trustees or
their agent for exchange, (iii) any Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a
Like Amount of Junior Subordinated Notes, accruing interest at
the rate provided for in the Junior Subordinated Notes from the
last Distribution Date on which a Distribution was made on such
Trust Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Subordinated Notes) and
(iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Junior
Subordinated Notes upon surrender of Trust Securities
Certificates.
(e) The Depositor will use its best efforts to have the
Junior Subordinated Notes that are distributed in exchange for
the Preferred Securities to be listed on such securities exchange
as the Preferred Securities are then listed. The Depositor may
elect to have the Junior Subordinated Notes issued in book-entry
form to the Clearing Agency or its nominee pursuant to a
Certificate Depository Agreement substantially in the form of
Exhibit B.
Section 9.05 Bankruptcy. If an Early Termination Event
specified in clause (i) of Section 9.02 has occurred, the Trust
shall be liquidated. The Property Trustee shall distribute the
Junior Subordinated Notes to the Securityholders as provided in
Section 9.04, unless such distribution is determined by the
Administrative Trustees not to be practical, in which event the
Holders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors, an amount equal to the
Liquidation Amount per Trust Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being
the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such
dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if
an Indenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a priority over the Common
Securities.
ARTICLE X
50
<PAGE>
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 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 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
51
<PAGE>
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. Any Trustee may, but shall not be
obligated to, enter into any such amendment which affects such
Trustee's own rights, duties, immunities or liabilities under
this Trust Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement
is made, the Administrative Trustees shall promptly provide to
the Depositor a copy of such amendment.
Section 10.04 Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
52
<PAGE>
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 INTERNAL LAWS OF THE STATE OF DELAWARE; PROVIDED
THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE
SHALL BE GOVERNED BY NEW YORK LAW.
Section 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, first-class postage prepaid, in
the United States mail, hand delivery or facsimile transmission,
in each case, addressed, (i) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such
Securityholder's name and address appear on the Securities
Register and (ii) in the case of the Common Securityholder or the
Depositor, to Georgia Power Company, 333 Piedmont Avenue, N.E.,
Atlanta, Georgia 30308, Attention: Corporate Secretary,
Facsimile No. (404) 526-2945, with a copy to Southern Company
Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department, Facsimile No. (770) 821-
4460. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be
given or served to or upon the Trust or the Trustees shall be
given in writing addressed (until another address is published by
the Trust) as follows: (i) with respect to the Property Trustee
and the Delaware Trustee, The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York, 10001, Attention: Corporate Trustee
Administration Department; Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801, Attention: Corporate
Trust Department, as the case may be; and (ii) with respect to
the Administrative Trustees, to them at the address above for
notices to the Depositor, marked Attention: Administrative
Trustees of Georgia Power Capital Trust III c/o Corporate
Secretary. Such notice, demand or other communication to or upon
the Trust or the Trustees shall be deemed to have been
53
<PAGE>
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 undivided beneficial
interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL
OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
54
<PAGE>
TERMS OF THE GUARANTEE AND THE SUBORDINATED INDENTURE AND THE
AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
55
<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,
as Depositor
By:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Title:
Judy M. Anderson,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
56
<PAGE>
EXHIBIT A
[INTENTIONALLY RESERVED]
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 III
_____% 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 III,
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, and
the accompanying Prospectus Supplement 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. The Chase Manhattan 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
Exhibit B - Page 1
<PAGE>
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 be sent to DTC's Reorganization
Department as indicated in paragraph 6.
3. In the event of a 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 at least 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 at least 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
Exhibit B - Page 2
<PAGE>
shall be confirmed by telephoning (212) 709-6884, or by mail or
any other means to:
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 III, _____% 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 by written notice 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.
Exhibit B - Page 3
<PAGE>
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 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 III
By:
Name: Wayne Boston
Title: Administrative Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee of
Georgia Power Capital Trust III
Exhibit B - Page 4
<PAGE>
By:
Name:
Title:
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 III
Common Securities
(liquidation amount $25 per Common Security)
Georgia Power Capital Trust III, a statutory business trust
created 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
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 III
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 "Agree-
ment") is made as of ___________ ___, 1996, between Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power
Capital Trust III, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities
(the "Common Securities") to and receive Junior Subordinated
Notes from the Company and to issue and sell Georgia Power
Capital Trust III _____% 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
Exhibit D - Page 1
<PAGE>
Preferred Securities or any Beneficiary must restore payment of
any sums paid under the Preferred Securities, under any
Obligation, under the Guarantee Agreement dated the date hereof
by the Company and The Chase Manhattan Bank, as guarantee
trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives
notice of acceptance of this Agreement and of any Obligation to
which it applies or may apply, and the Company hereby waives
presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices
and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall
in no way be affected or impaired by reason of the happening from
time to time of any of the following:
(a) the extension of time for the payment by the Trust
of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of,
or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence
on the part of the Beneficiaries to enforce, assert or
exercise any right, privilege, power or remedy conferred on
the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or
extension of any kind; or
(c) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice
to, or obtain the consent of, the Company with respect to the
happening of any of the foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this
Agreement directly against the Company and the Company waives any
right or remedy to require that any action be brought against the
Trust or any other person or entity before proceeding against the
Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and
agreements contained in this Agreement shall bind the successors,
Exhibit D - Page 2
<PAGE>
assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are
outstanding, this Agreement shall not be modified or amended in
any manner adverse to such Beneficiary or to the holders of the
Preferred Securities.
Section 2.03. Notices. Any notice, request or other
communication required or permitted to be given hereunder shall
be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or
by registered or certified mail, addressed as follows (and if so
given, shall be deemed given when mailed or upon receipt of an
answer-back, if sent by telex), to-wit:
Georgia Power Capital Trust III
c/o The Chase Manhattan 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.: (404) 526-2945
Attention: Corporate Secretary
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 III
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 III or its
agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in
such other name as is requested by an authorized representative
of DTC (and any payment made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
any transfer, pledge, or other use hereof for value or otherwise
by or to any person is wrongful inasmuch as the registered owner
thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
_________
P-1 CUSIP NO. _________
Certificate Evidencing Preferred Securities
of
Georgia Power Capital Trust III
_____% Trust Preferred Securities,
(Liquidation amount $25 per Preferred Security)
Georgia Power Capital Trust III, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that Cede & Co. (the "Holder") is the registered
owner of ___________________________________________ (_________)
preferred securities of the Trust representing undivided
beneficial interest in the assets of the Trust and designated the
Georgia Power Capital Trust III _____% 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, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this
certificate and the Preferred Securities represented hereby are
issued and shall in all respects be subject to the terms and
provisions of, the Amended and Restated Trust Agreement of the
Trust, dated as of _______ __, 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
Exhibit E - Page 1
<PAGE>
between the Company and The Chase Manhattan Bank, as guarantee
trustee, dated as of _______ __, 1996, as the same may be amended
from time to time (the "Guarantee"), to the extent provided
therein. The Trust will furnish a copy of the Trust Agreement
and the Guarantee to the holder of this certificate without
charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to
the benefits thereunder.
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 III
By:
Judy M. Anderson,
as Administrative Trustee
By:
Wayne Boston,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
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 number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Securities Certificate on the
books of the Trust. The agent may substitute another to act for
him or her.
Date:
Signature:
(Sign exactly as your name appears on the other side of this
Preferred Securities Certificate)
Exhibit 4.8-A
Draft 8/14/96
GUARANTEE AGREEMENT
Between
Georgia Power Company
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
________ __, 1996
<PAGE>
CROSS-REFERENCE TABLE1
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(i), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
1This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . 4
SECTION 2.01. Trust Indenture Act; Application . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . 4
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . 4
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . 4
SECTION 2.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . 5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . 5
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE . . . . . 5
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . 5
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . 7
SECTION 3.03. Compensation; Fees; Indemnity . . . . . . . . 9
ARTICLE IV
TRUSTEE . . . . . . . . . . . . 9
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . 9
SECTION 4.02. Appointment, Removal and Resignation of
Trustee . . . . . . . . . . . . . . . . . . . 10
ii
<PAGE>
ARTICLE V
GUARANTEE . . . . . . . . . . . . 11
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . 13
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . 13
SECTION 5.07. Independent Obligations . . . . . . . . . . . 13
ARTICLE VI
SUBORDINATION . . . . . . . . . . . 13
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . 13
ARTICLE VII
TERMINATION . . . . . . . . . . . 13
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . 14
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . 14
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . 15
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . 15
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . 16
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ________ __, 1996, is executed and delivered by GEORGIA POWER
COMPANY, a Georgia corporation (the "Guarantor"), and THE CHASE
MANHATTAN 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 II, 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, Georgia Power Company,
as Depositor, and the holders of undivided beneficial interests
in the assets of the Trust, the Trust is issuing as of the date
hereof $__________ aggregate liquidation amount of its _____%
Trust Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial interests in the
assets of 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 (as defined herein) 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.
<PAGE>
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial 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 August 1, 1996, among the Guarantor, as Subordinated Note
Issuer, and The Chase Manhattan Bank, as trustee, as supplemented
by the Supplemental Indenture dated as of ________ __, 1996, by
2
<PAGE>
and between the Guarantor and The Chase Manhattan 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.
"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,
limited liability company, 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.
3
<PAGE>
"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 The Chase Manhattan Bank until a Successor
Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 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 commencing May 15, 1997, 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
4
<PAGE>
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 of the Trust Indenture Act
(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 each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act in the form and in the manner required by such
Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known
to the Trustee, unless such defaults have been cured before the
giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
5
<PAGE>
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 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
6
<PAGE>
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
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,
7
<PAGE>
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;
(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
8
<PAGE>
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.
(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
9
<PAGE>
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 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.
10
<PAGE>
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
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 or on behalf of 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.
11
<PAGE>
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;
(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.
12
<PAGE>
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) 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; it being understood and intended that no one or
more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
Guarantee Agreement to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Guarantee Agreement, except in the
manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication) or upon
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities.
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
13
<PAGE>
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)
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities, or (iii) 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 of
the Preferred Securities 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.
14
<PAGE>
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
Facsimile No.: (404) 526-2945
Attn: Corporate Secretary
with copy to:
Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Facsimile No.: (770) 821-4460
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to
the Trustee at the Trust's (and the Trustee's) address set forth
below or such other address as the Trustee on behalf of the
Trust may give notice to the Holders:
Georgia Power Capital Trust II
c/o The Chase Manhattan 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
15
<PAGE>
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
(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 INTERNAL 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
16
<PAGE>
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:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
17
Exhibit 4.8-B
Draft 8/14/96
GUARANTEE AGREEMENT
Between
Georgia Power Company
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
________ __, 1996
<PAGE>
CROSS-REFERENCE TABLE1
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(i), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
1This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . 4
SECTION 2.01. Trust Indenture Act; Application . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . 4
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . 4
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . 4
SECTION 2.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . 5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . 5
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE . . . . . 5
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . 5
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . 7
SECTION 3.03. Compensation; Fees; Indemnity . . . . . . . . 9
ARTICLE IV
TRUSTEE . . . . . . . . . . . . 9
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . 9
SECTION 4.02. Appointment, Removal and Resignation of
Trustee . . . . . . . . . . . . . . . . . . . 10
ii
<PAGE>
ARTICLE V
GUARANTEE . . . . . . . . . . . . 11
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . 13
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . 13
SECTION 5.07. Independent Obligations . . . . . . . . . . . 13
ARTICLE VI
SUBORDINATION . . . . . . . . . . . 13
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . 13
ARTICLE VII
TERMINATION . . . . . . . . . . . 13
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . 14
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . 14
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . 15
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . 15
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . 16
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ________ __, 1996, is executed and delivered by GEORGIA POWER
COMPANY, a Georgia corporation (the "Guarantor"), and THE CHASE
MANHATTAN 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 I, 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, Georgia Power Company,
as Depositor, and the holders of undivided beneficial interests
in the assets of the Trust, the Trust is issuing as of the date
hereof $__________ aggregate liquidation amount of its _____%
Trust Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial interests in the
assets of 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 (as defined herein) 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.
<PAGE>
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial 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 August 1, 1996, among the Guarantor, as Subordinated Note
Issuer, and The Chase Manhattan Bank, as trustee, as supplemented
by the Supplemental Indenture dated as of ________ __, 1996, by
2
<PAGE>
and between the Guarantor and The Chase Manhattan 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.
"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,
limited liability company, 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.
3
<PAGE>
"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 The Chase Manhattan Bank until a Successor
Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 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 commencing May 15, 1997, 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
4
<PAGE>
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 of the Trust Indenture Act
(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 each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act in the form and in the manner required by such
Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known
to the Trustee, unless such defaults have been cured before the
giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
5
<PAGE>
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 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
6
<PAGE>
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
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,
7
<PAGE>
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;
(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
8
<PAGE>
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.
(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
9
<PAGE>
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 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.
10
<PAGE>
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
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 or on behalf of 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.
11
<PAGE>
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;
(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.
12
<PAGE>
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) 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; it being understood and intended that no one or
more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
Guarantee Agreement to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Guarantee Agreement, except in the
manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication) or upon
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities.
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
13
<PAGE>
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)
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities, or (iii) 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 of
the Preferred Securities 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.
14
<PAGE>
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
Facsimile No.: (404) 526-2945
Attn: Corporate Secretary
with copy to:
Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Facsimile No.: (770) 821-4460
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to
the Trustee at the Trust's (and the Trustee's) address set forth
below or such other address as the Trustee on behalf of the
Trust may give notice to the Holders:
Georgia Power Capital Trust I
c/o The Chase Manhattan 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
15
<PAGE>
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
(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 INTERNAL 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
16
<PAGE>
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:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
17
Exhibit 4.8-C
Draft 8/14/96
GUARANTEE AGREEMENT
Between
Georgia Power Company
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
________ __, 1996
<PAGE>
CROSS-REFERENCE TABLE1
Section of Section of
Trust Indenture Act Guarantee
of 1939, as amended Agreement
310(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.01(a)
310(b) . . . . . . . . . . . . . . . . . . . . . . 4.01(c), 2.08
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.02(b)
313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
314(d) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(e) . . . . . . . . . . . . . . . . . . . . 1.01, 2.05, 3.02
314(f) . . . . . . . . . . . . . . . . . . . . . . . 2.01, 3.02
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.07
315(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 3.01
315(d) . . . . . . . . . . . . . . . . . . . . . . . . . 3.01(d)
315(e) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
316(a) . . . . . . . . . . . . . . . . . . . . . . 5.04(i), 2.06
316(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
316(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.02
317(a) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
317(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(b)
318(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . 2.01(a)
1This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the interpretation of
any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . 4
SECTION 2.01. Trust Indenture Act; Application . . . . . . . 4
SECTION 2.02. Lists of Holders of Securities . . . . . . . . 4
SECTION 2.03. Reports by the Trustee . . . . . . . . . . . . 4
SECTION 2.04. Periodic Reports to Trustee . . . . . . . . . 4
SECTION 2.05. Evidence of Compliance with Conditions
Precedent . . . . . . . . . . . . . . . . . . 5
SECTION 2.06. Events of Default; Waiver . . . . . . . . . . 5
SECTION 2.07. Event of Default; Notice . . . . . . . . . . . 5
SECTION 2.08. Conflicting Interests . . . . . . . . . . . . 5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE . . . . . 5
SECTION 3.01. Powers and Duties of the Trustee . . . . . . . 5
SECTION 3.02. Certain Rights of Trustee . . . . . . . . . . 7
SECTION 3.03. Compensation; Fees; Indemnity . . . . . . . . 9
ARTICLE IV
TRUSTEE . . . . . . . . . . . . 9
SECTION 4.01. Trustee; Eligibility . . . . . . . . . . . . . 9
SECTION 4.02. Appointment, Removal and Resignation of
Trustee . . . . . . . . . . . . . . . . . . . 10
ii
<PAGE>
ARTICLE V
GUARANTEE . . . . . . . . . . . . 11
SECTION 5.01. Guarantee . . . . . . . . . . . . . . . . . . 11
SECTION 5.02. Waiver of Notice and Demand . . . . . . . . . 11
SECTION 5.03. Obligations Not Affected . . . . . . . . . . . 11
SECTION 5.04. Rights of Holders . . . . . . . . . . . . . . 12
SECTION 5.05. Guarantee of Payment . . . . . . . . . . . . . 13
SECTION 5.06. Subrogation . . . . . . . . . . . . . . . . . 13
SECTION 5.07. Independent Obligations . . . . . . . . . . . 13
ARTICLE VI
SUBORDINATION . . . . . . . . . . . 13
SECTION 6.01. Subordination . . . . . . . . . . . . . . . . 13
ARTICLE VII
TERMINATION . . . . . . . . . . . 13
SECTION 7.01. Termination . . . . . . . . . . . . . . . . . 13
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . 14
SECTION 8.01. Successors and Assigns . . . . . . . . . . . . 14
SECTION 8.02. Amendments . . . . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices . . . . . . . . . . . . . . . . . . . 14
SECTION 8.04. Benefit . . . . . . . . . . . . . . . . . . . 15
SECTION 8.05. Interpretation . . . . . . . . . . . . . . . . 15
SECTION 8.06. Governing Law . . . . . . . . . . . . . . . . 16
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as
of ________ __, 1996, is executed and delivered by GEORGIA POWER
COMPANY, a Georgia corporation (the "Guarantor"), and THE CHASE
MANHATTAN 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 III, 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, Georgia Power Company,
as Depositor, and the holders of undivided beneficial interests
in the assets of the Trust, the Trust is issuing as of the date
hereof $__________ aggregate liquidation amount of its _____%
Trust Preferred Securities (the "Preferred Securities")
representing preferred undivided beneficial interests in the
assets of 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 (as defined herein) 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.
<PAGE>
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Common Securities" means the securities representing common
undivided beneficial 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 August 1, 1996, among the Guarantor, as Subordinated Note
Issuer, and The Chase Manhattan Bank, as trustee, as supplemented
by the Supplemental Indenture dated as of ________ __, 1996, by
2
<PAGE>
and between the Guarantor and The Chase Manhattan 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.
"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,
limited liability company, 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.
3
<PAGE>
"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 The Chase Manhattan Bank until a Successor
Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Trustee.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions
of the Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that any provision of this
Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 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 commencing May 15, 1997, 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
4
<PAGE>
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 of the Trust Indenture Act
(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 each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust
Indenture Act in the form and in the manner required by such
Section.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Trustee such
evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in liquidation amount of Preferred Securities may, by
vote, on behalf of all of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders, notices of all Events of Default known
to the Trustee, unless such defaults have been cured before the
giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board
of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of
any Event of Default unless the Trustee shall have received
written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written
notice, of such Event of Default.
5
<PAGE>
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 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
6
<PAGE>
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
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,
7
<PAGE>
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;
(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
8
<PAGE>
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.
(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
9
<PAGE>
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 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.
10
<PAGE>
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
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 or on behalf of 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.
11
<PAGE>
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;
(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.
12
<PAGE>
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) 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; it being understood and intended that no one or
more of such Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this
Guarantee Agreement to affect, disturb or prejudice the rights of
any other of such Holders or to obtain or to seek to obtain
priority or preference over any other of such Holders or to
enforce any right under this Guarantee Agreement, except in the
manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee
Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment
of the Guarantee Payments in full (without duplication) or upon
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities.
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
13
<PAGE>
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)
the distribution of Junior Subordinated Notes to the Holders in
exchange for all of the Preferred Securities, or (iii) 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 of
the Preferred Securities 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.
14
<PAGE>
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
Facsimile No.: (404) 526-2945
Attn: Corporate Secretary
with copy to:
Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Facsimile No.: (770) 821-4460
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to
the Trustee at the Trust's (and the Trustee's) address set forth
below or such other address as the Trustee on behalf of the
Trust may give notice to the Holders:
Georgia Power Capital Trust III
c/o The Chase Manhattan 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
15
<PAGE>
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
(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 INTERNAL 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
16
<PAGE>
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:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
17
EXHIBIT 5.1-A
TROUTMAN SANDERS LLP
NATIONSBANK PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
TELEPHONE: 404-885-3000
August 16, 1996
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with the preparation of a Registration
Statement on Form S-3, including a preliminary prospectus and
preliminary prospectus supplement, filed with the Securities and
Exchange Commission (the "Commission") on June 14, 1996 (File
Nos. 333-06037, 333-06037-01, 333-06037-02 and 333-06037-03) and
amended by Amendment No. 1 filed with the Commission on August
16, 1996 (as so amended, the "Registration Statement"), for the
registration under the Securities Act of 1933, as amended (the
"Act"), of (1) Junior Subordinated Notes (the "Junior
Subordinated Notes") to be issued by the Company to Georgia Power
Capital Trust I (the "Trust"), (2) Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security) to be
issued by the Trust, and (3) the Company's Guarantee (as defined
in the Registration Statement) with respect to such Trust
Preferred Securities. The Junior Subordinated Notes will be
issued pursuant to a subordinated note indenture, as
supplemented, between the Company and the trustee named therein
(the "Subordinated Note Indenture") and the Guarantee will be
issued pursuant to a guarantee agreement between the Company and
the trustee named therein (the "Guarantee Agreement"), in each
case in the respective forms filed as exhibits to the
Registration Statement.
We are of the opinion that, upon compliance with the
pertinent provisions of the Act, the Trust Indenture Act of 1939,
as amended, and the Public Utility Holding Company Act of 1935,
as amended, upon compliance with applicable securities or blue
sky laws of various jurisdictions, upon the adoption of
appropriate resolutions by the Board of Directors of the Company
or a duly authorized committee thereof, when the Subordinated
Note Indenture and the Guarantee Agreement have been duly
executed and delivered by the proper officers of the Company and
the trustees named therein, and when the Junior Subordinated
Notes and the Guarantee have been executed, authenticated and
delivered in accordance with the terms of the Subordinated Note
Indenture and the Guarantee Agreement, as the case may be, the
Junior Subordinated Notes and the Guarantee will be valid,
<PAGE>
Georgia Power Company
August 16, 1996
Page 2
binding and legal obligations of the Company (subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and to general principles of equity, whether considered
in a proceeding at law or in equity).
We also advise you that we have reviewed certain statements
in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as indicated under the caption "Experts" in
the prospectus, as to matters of law and legal conclusions and,
in our opinion, such statements are correct in all material
respects.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the statements with
respect to our firm under the captions "Legal Opinions," "Legal
Matters" and "Experts" in the Registration Statement.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
EXHIBIT 5.1-B
TROUTMAN SANDERS LLP
NATIONSBANK PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
TELEPHONE: 404-885-3000
August 16, 1996
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with the preparation of a Registration
Statement on Form S-3, including a preliminary prospectus and
preliminary prospectus supplement, filed with the Securities and
Exchange Commission (the "Commission") on June 14, 1996 (File
Nos. 333-06037, 333-06037-01, 333-06037-02 and 333-06037-03) and
amended by Amendment No. 1 filed with the Commission on August
16, 1996 (as so amended, the "Registration Statement"), for the
registration under the Securities Act of 1933, as amended (the
"Act"), of (1) Junior Subordinated Notes (the "Junior
Subordinated Notes") to be issued by the Company to Georgia Power
Capital Trust II (the "Trust"), (2) Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security) to be
issued by the Trust, and (3) the Company's Guarantee (as defined
in the Registration Statement) with respect to such Trust
Preferred Securities. The Junior Subordinated Notes will be
issued pursuant to a subordinated note indenture, as
supplemented, between the Company and the trustee named therein
(the "Subordinated Note Indenture") and the Guarantee will be
issued pursuant to a guarantee agreement between the Company and
the trustee named therein (the "Guarantee Agreement"), in each
case in the respective forms filed as exhibits to the
Registration Statement.
We are of the opinion that, upon compliance with the
pertinent provisions of the Act, the Trust Indenture Act of 1939,
as amended, and the Public Utility Holding Company Act of 1935,
as amended, upon compliance with applicable securities or blue
sky laws of various jurisdictions, upon the adoption of
appropriate resolutions by the Board of Directors of the Company
or a duly authorized committee thereof, when the Subordinated
Note Indenture and the Guarantee Agreement have been duly
executed and delivered by the proper officers of the Company and
the trustees named therein, and when the Junior Subordinated
Notes and the Guarantee have been executed, authenticated and
delivered in accordance with the terms of the Subordinated Note
Indenture and the Guarantee Agreement, as the case may be, the
Junior Subordinated Notes and the Guarantee will be valid,
<PAGE>
Georgia Power Company
August 16, 1996
Page 2
binding and legal obligations of the Company (subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and to general principles of equity, whether considered
in a proceeding at law or in equity).
We also advise you that we have reviewed certain statements
in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as indicated under the caption "Experts" in
the prospectus, as to matters of law and legal conclusions and,
in our opinion, such statements are correct in all material
respects.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the statements with
respect to our firm under the captions "Legal Opinions," "Legal
Matters" and "Experts" in the Registration Statement.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
EXHIBIT 5.1-C
TROUTMAN SANDERS LLP
NATIONSBANK PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
TELEPHONE: 404-885-3000
August 16, 1996
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with the preparation of a Registration
Statement on Form S-3, including a preliminary prospectus and
preliminary prospectus supplement, filed with the Securities and
Exchange Commission (the "Commission") on June 14, 1996 (File
Nos. 333-06037, 333-06037-01, 333-06037-02 and 333-06037-03) and
amended by Amendment No. 1 filed with the Commission on August
16, 1996 (as so amended, the "Registration Statement"), for the
registration under the Securities Act of 1933, as amended (the
"Act"), of (1) Junior Subordinated Notes (the "Junior
Subordinated Notes") to be issued by the Company to Georgia Power
Capital Trust III (the "Trust"), (2) Trust Preferred Securities
(liquidation amount $25 per Trust Preferred Security) to be
issued by the Trust, and (3) the Company's Guarantee (as defined
in the Registration Statement) with respect to such Trust
Preferred Securities. The Junior Subordinated Notes will be
issued pursuant to a subordinated note indenture, as
supplemented, between the Company and the trustee named therein
(the "Subordinated Note Indenture") and the Guarantee will be
issued pursuant to a guarantee agreement between the Company and
the trustee named therein (the "Guarantee Agreement"), in each
case in the respective forms filed as exhibits to the
Registration Statement.
We are of the opinion that, upon compliance with the
pertinent provisions of the Act, the Trust Indenture Act of 1939,
as amended, and the Public Utility Holding Company Act of 1935,
as amended, upon compliance with applicable securities or blue
sky laws of various jurisdictions, upon the adoption of
appropriate resolutions by the Board of Directors of the Company
or a duly authorized committee thereof, when the Subordinated
Note Indenture and the Guarantee Agreement have been duly
executed and delivered by the proper officers of the Company and
the trustees named therein, and when the Junior Subordinated
Notes and the Guarantee have been executed, authenticated and
delivered in accordance with the terms of the Subordinated Note
Indenture and the Guarantee Agreement, as the case may be, the
Junior Subordinated Notes and the Guarantee will be valid,
<PAGE>
Georgia Power Company
August 16, 1996
Page 2
binding and legal obligations of the Company (subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and to general principles of equity, whether considered
in a proceeding at law or in equity).
We also advise you that we have reviewed certain statements
in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, as indicated under the caption "Experts" in
the prospectus, as to matters of law and legal conclusions and,
in our opinion, such statements are correct in all material
respects.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the statements with
respect to our firm under the captions "Legal Opinions," "Legal
Matters" and "Experts" in the Registration Statement.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
Exhibit 5.2-A
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(303) 658-6541
August 16, 1996
Georgia Power Capital Trust I
c/o Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
I, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated June 13, 1996
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on June 13, 1996;
(b) The Trust Agreement of the Trust, dated as of June 13,
1996, between the Company, as Depositor, and the trustee of the Trust named
therein;
(c) The Certificate of Amendment to the Original Certificate,
dated July 23, 1996 (the "Certificate of Amendment"), as filed in the office of
the Secretary of State on July 23, 1996 (the Original Certificate as amended by
the Certificate of Amendment being hereinafter referred to as the
"Certificate");
<PAGE>
Georgia Power Capital Trust I
August 16, 1996
Page 2
(d) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus") and preliminary prospectus supplement (the "Prospectus
Supplement"), relating to the __% Trust Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth therein
with the Securities and Exchange Commission on or about August 16, 1996;
(e) A form of Amended and Restated Trust Agreement of the
Trust, to be entered into among the Company, as Depositor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits C and E thereto) (the
"Trust Agreement"), attached as an exhibit to the Registration Statement; and
(f) A Certificate of Good Standing for the Trust, dated August
16, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation,
<PAGE>
Georgia Power Capital Trust I
August 16, 1996
Page 3
organization or formation, (iii) the legal capacity of natural persons who are
parties to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Securities Certificate for such Preferred Security and the payment for the
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus and under the heading "Legal Opinions" in the
Prospectus Supplement. In giving the foregoing consents,
<PAGE>
Georgia Power Capital Trust I
August 16, 1996
Page 4
we do not thereby admit that we come within the category of Persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
Richards, Layton & Finger
Exhibit 5.2-B
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
August 16, 1996
Georgia Power Capital Trust II
c/o Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
II, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated June 13, 1996
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on June 13, 1996;
(b) The Trust Agreement of the Trust, dated as of June 13,
1996, between the Company, as Depositor, and the trustee of the Trust named
therein;
(c) The Certificate of Amendment to the Original Certificate,
dated July 23, 1996 (the "Certificate of Amendment"), as filed in the office of
the Secretary of State on July 23, 1996 (the Original Certificate as amended by
the Certificate of Amendment being hereinafter referred to as the
"Certificate");
<PAGE>
Georgia Power Capital Trust II
August 16, 1996
Page 2
(d) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the __% Trust Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth therein
with the Securities and Exchange Commission on or about August 16, 1996;
(e) A form of Amended and Restated Trust Agreement of the
Trust, to be entered into among the Company, as Depositor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits C and E thereto) (the
"Trust Agreement"), attached as an exhibit to the Registration Statement; and
(f) A Certificate of Good Standing for the Trust, dated August
16, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation,
<PAGE>
Georgia Power Capital Trust II
August 16, 1996
Page 3
organization or formation, (iii) the legal capacity of natural persons who are
parties to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Securities Certificate for such Preferred Security and the payment for the
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons
<PAGE>
Georgia Power Capital Trust II
August 16, 1996
Page 4
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
Richards, Layton & Finger
Exhibit 5.2-C
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, Delaware 19899
(302) 658-6541
August 16, 1996
Georgia Power Capital Trust III
c/o Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated June 13, 1996
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on June 13, 1996;
(b) The Trust Agreement of the Trust, dated as of June 13,
1996, between the Company, as Depositor, and the trustee of the Trust named
therein;
(c) The Certificate of Amendment to the Original Certificate,
dated July 23, 1996 (the "Certificate of Amendment"), as filed in the office of
the Secretary of State on July 23, 1996 (the Original Certificate as amended by
the Certificate of Amendment being hereinafter referred to as the
"Certificate");
<PAGE>
Georgia Power Capital Trust III
August 16, 1996
Page 2
(d) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the __% Trust Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth therein
with the Securities and Exchange Commission on or about August 16, 1996;
(e) A form of Amended and Restated Trust Agreement of the
Trust, to be entered into among the Company, as Depositor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits C and E thereto) (the
"Trust Agreement"), attached as an exhibit to the Registration Statement; and
(f) A Certificate of Good Standing for the Trust, dated August
16, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation,
<PAGE>
Georgia Power Capital Trust III
August 16, 1996
Page 3
organization or formation, (iii) the legal capacity of natural persons who are
parties to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Securities Certificate for such Preferred Security and the payment for the
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons
<PAGE>
Georgia Power Capital Trust III
August 16, 1996
Page 4
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
Richards, Layton, & Finger
EXHIBIT 8.1
TROUTMAN SANDERS LLP
NATIONSBANK PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
TELEPHONE: 404-885-3000
August 16, 1996
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30328
Re: Registration Statement on Form S-3
Gentlemen:
We have acted as counsel to Georgia Power Company in connection with the
preparation of a Registration Statement on Form S-3, including a preliminary
prospectus and form of preliminary prospectus supplement, filed with the
Securities and Exchange Commission (the "Commission") on June 14, 1996 (File
Nos. 333-06037, 333-06037-01, 333-06037-02 and 333-06037-03) and amended by
Amendment No. 1 filed with the Commission on August 16, 1996 (as so amended, the
"Registration Statement").
We hereby confirm our opinion that the statements as to matters of law and
legal conclusions set forth under the caption "Certain Federal Income Tax
Considerations" in the form of preliminary prospectus supplement included in the
Registration Statement are correct in all material respects.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the use of our name under the
heading "Certain Federal Income Tax Considerations" in the form of preliminary
prospectus supplement forming part of the Registration Statement. In giving the
forgoing consent, we do not hereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
<TABLE>
<CAPTION>
Exhibit 12.1
8/15/96
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 July 31, 1996
<S> <C> <C> <C> <C> <C> <C>
Twelve
Months
Ended
Year ended December 31, July 31,
================================================================
1991 1992 1993 1994 1995 1996
----------------------------Thousands of Dollars-----------------------------
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 $ 934,811
Federal and state income taxes 315,507 165,667 266,771 360,380 411,675 391,982
Deferred income taxes, net 52,941 194,748 168,372 34,130 35,367 52,078
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 11,992
---------- ---------- ---------- ---------- ---------- ----------
Earnings as defined $1,378,527 $1,368,056 $1,459,958 $1,332,970 $1,419,984 $1,391,990
========== ========== ========== ========== ========== ==========
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 $ 221,808
Interest on interim obligations 4,906 9,694 15,530 17,529 21,463 20,094
Amort of debt disc, premium and expense, net 5,784 7,891 14,087 15,776 15,846 15,151
Other interest charges 9,941 12,426 47,393 23,483 20,400 22,718
---------- ---------- ---------- ---------- ---------- ----------
Fixed charges as defined $ 483,046 434,865 $ 422,562 $ 365,399 $ 314,801 $ 279,771
========== ========== ========== ========== ========== ==========
RATIO OF EARNINGS TO FIXED CHARGES 2.85 3.15 3.46 3.65 4.51 4.98
==== ==== ==== ==== ==== ====
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
8/15/96
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 July 31, 1996
<S> <C> <C> <C> <C> <C> <C>
Twelve
Months
Ended
Year ended December 31, July 31,
==========================================================================
1991 1992 1993 1994 1995 1996
-----------------------------------------Thousands of Dollars-------------
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 $ 934,811
Federal and state income taxes 15,507 165,667 266,771 360,380 411,675 391,982
Deferred income taxes, net 52,941 194,748 168,372 34,130 35,367 52,078
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 11,992
---------- ---------- ---------- ---------- ---------- ----------
Earnings as defined $1,378,527 $1,368,056 $1,459,958 $1,332,970 $1,419,984 $1,391,990
========== ========== ========== ========== ========== ==========
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 $ 221,808
Interest on interim obligations 4,906 9,694 15,530 17,529 21,463 20,094
Amort of debt disc, premium and expense, net 5,784 7,891 14,087 15,776 15,846 15,151
Other interest charges 9,941 12,426 47,393 23,483 20,400 22,718
---------- ---------- ---------- ---------- ---------- ----------
Fixed charges as defined 483,046 434,865 422,562 365,399 314,801 279,771
Tax deductible preferred dividends 1,804 1,804 1,753 1,753 1,753 1,753
---------- ---------- ----------- ---------- ---------- ----------
484,850 436,669 424,315 367,152 316,554 281,524
---------- ---------- ----------- ---------- ---------- ---------
Non-tax deductible preferred dividends 59,897 56,138 48,921 46,253 46,399 45,469
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 1.667
---------- ---------- ----------- ---------- --------- ----------
Pref dividend requirements before income taxes 99,968 90,551 81,796 78,029 78,043 75,797
---------- ---------- ---------- ---------- ---------- ----------
Fixed charges plus pref dividend requirements $ 584,818 527,220 $ 506,111 $ 445,181 $ 394,597 $ 357,321
========== ========== =========== ========== ========== ==========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 2.36 2.59 2.88 2.99 3.60 3.90
==== ==== ==== ==== ==== ====
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
-------------------------
August 16, 1996 Arthur Andersen LLP
-------------------------
Georgia Power Company Suite 2500
333 Piedmont Avenue, NE 133 Peachtree Street
Atlanta, GA 30308 Atlanta GA 30303-1846
404 658 1776
Ladies and Gentlemen:
We are aware that Georgia Power Company has incorporated by reference in this
Registration Statement its quarterly reports on Form 10-Q for the quarters ended
March 31, 1996, and June 30, 1996, which include our reports on Georgia Power
Company dated May 9, 1996, and August 8, 1996, respectively, covering its
unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933 (the "Act"), such reports are not
considered a part of the Registration Statement prepared or certified by our
firm or reports 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 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) ________
----------------------------------------
THE CHASE MANHATTAN 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)
---------------------------------------------------
Junior Subordinated Notes
(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, December 2, 1991, and July 10, 1996 (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. 333-06249, 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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/ P. Kelly
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 capitalizedleases...... 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 -
<PAGE>
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) ________
----------------------------------------
THE CHASE MANHATTAN 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)
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, December 2, 1991, and July 10, 1996 (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. 33-06249,
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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/ P. Kelly
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 25.3
-------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN 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
(Georgia Power Capital Trust I)
(Title of the indenture securities)
-----------------------------------------------------
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, December 2, 1991 and July 10, 1996 (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. 333-06249, 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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/P.Kelly .
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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................................ 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............... l354
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 25.4
-------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN 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 II
(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)
----------------------------------------------------
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, December 2, 1991, and July 10, 1996
(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. 333-06249,
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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By /s/P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 25.5
-------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN 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
(Georgia Power Capital Trust II)
(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.
<PAGE>
- 2 -
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, December 2, 1991 July 10, 1996 (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. 333-06249 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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/ P. Kelly
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 -
<PAGE>
Exhibit 25.6
-------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN 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 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 -
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, December 2, 1991, and July 10, 1996 (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. 333-06249, 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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/P. Kelly .
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 balances2,075
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 -
<PAGE>
Exhibit 25.7
-------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN 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
(Georgia Power Capital Trust III)
(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 -
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, December 2, 1991 and (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. 333-06249, 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, The Chase Manhattan 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 August, 1996.
THE CHASE MANHATTAN BANK
By
/s/P. Kelly .
P. Kelly
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 -
<PAGE>
