SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 27, 1997
GULF POWER COMPANY
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(Exact name of registrant as specified in its charter)
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Maine 0-2729 59-0276810
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
500 Bayfront Parkway, Pensacola, Florida 32501
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (904) 444-6111
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N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On January 27, 1997, Gulf Power Company (the "Company") and Gulf Power Capital
Trust I (the "Trust") entered into an Underwriting Agreement covering the issue
and sale by the Trust of 1,600,000 7.625% Cumulative Quarterly Income Preferred
Securities (liquidation amount $25 per Preferred Security). Said Preferred
Securities were registered under the Securities Act of 1933, as amended,
pursuant to the shelf registration statement (Registration Statement Nos.
333-19271, 333-19271-01 and 333-19271-02) of the Company and the Trust.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated January 27, 1997, among the Company,
the Trust and Goldman, Sachs & Co.
4.1 Subordinated Note Indenture dated as of January 1, 1997, between
the Company and The Chase Manhattan Bank, as Trustee.
4.2 Supplemental Indenture dated as of January 1, 1997, providing
for the issuance of the Company's Series A 7.625% Junior
Subordinated Notes due December 31, 2036.
4.5 Amended and Restated Trust Agreement of Gulf Power Capital
Trust I.
4.6 Form of Preferred Security of Gulf Power Capital Trust I
(included in Exhibit 4.5 above).
4.7 Form of Series A 7.625% Junior Subordinated Note (included in
Exhibit 4.2 above).
4.8 Guarantee relating to Gulf Power Capital Trust I.
4.9 Agreement as to Expenses and Liabilities relating to Gulf Power
Capital Trust I (included in Exhibit 4.5 above).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: January 31, 1997 GULF POWER COMPANY
/s/ Wayne Boston
By Wayne Boston
Assistant Secretary
1,600,000 Preferred Securities
Gulf Power Capital Trust I
(a Delaware Statutory Business Trust)
7.625% Trust Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
January 27, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Gulf Power Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust
Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. 3801 et
seq.), and Gulf Power Company, a Maine corporation (the
"Company" and, together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with you and each
of the other Underwriters named in Schedule I hereto
(collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided
in Section 10 hereof), for whom you are acting as
representative (in such capacity, you shall hereinafter be
referred to as the "Representative"), with respect to the
sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers
of 7.625% Trust Cumulative Quarterly Income Preferred
Securities (liquidation amount $25 per preferred security)
of the Trust ("Preferred Securities") set forth in
Schedule I. The Preferred Securities will be guaranteed by
the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee")
pursuant to the Preferred Securities Guarantee Agreement
(the "Guarantee Agreement"), dated as of January 1, 1997,
between the Company and The Chase Manhattan Bank, as trustee
(the "Guarantee Trustee"). The Preferred Securities and the
related Guarantee are referred to herein as the
"Securities."
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The Offerors understand that the Underwriters
propose to make a public offering of the Preferred
Securities as soon as the Representative deems advisable
after this Agreement has been executed and delivered. The
entire proceeds from the sale of the Securities will be
combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common
Securities") and will be used by the Trust to purchase the
$41,237,125 aggregate principal amount of Series A 7.625%
Junior Subordinated Notes (the "Junior Subordinated Notes")
to be issued by the Company. The Preferred Securities and
the Common Securities will be issued pursuant to the Amended
and Restated Trust Agreement, dated as of January 1, 1997
(the "Trust Agreement"), among the Company, as Depositor,
Linda Malone and Wayne Boston (the "Administrative
Trustees"), Chase Manhattan Bank Delaware, a Delaware
banking corporation (the "Delaware Trustee") and The Chase
Manhattan Bank, a New York banking corporation (the
"Property Trustee" and, together with the Delaware Trustee
and the Administrative Trustees, the "Trustees"), as
trustees, and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Junior
Subordinated Notes will be issued pursuant to an indenture,
dated as of January 1, 1997 (the "Base Indenture"), between
the Company and The Chase Manhattan Bank, as trustee (the
"Debt Trustee"), and a first supplemental indenture to the
Base Indenture, dated as of January 1, 1997 (the
"Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto,
the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Offerors jointly and severally represent and warrant to each
Underwriter as follows:
(a) A registration statement on Form S-3, as
amended (File Nos. 333-19271, 333-19271-01 and 333-
19271-02), in respect of the Preferred Securities, the
Guarantee and the Junior Subordinated Notes has been
prepared and filed in accordance with the provisions of
the Securities Act of 1933, as amended (the "1933
Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended,
and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to you,
and to you for each of the other Underwriters, has been
declared effective by the Commission in such form
(except that copies of the registration statement, as
amended, and any post-effective amendment delivered to
you for each of the other Underwriters need not include
exhibits but shall include all documents incorporated
by reference therein); and no stop order suspending the
effectiveness of such registration statement has been
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issued and no proceeding for that purpose has been
initiated or, to the best knowledge of the Company,
threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the
1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the time such registration
statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating
to the Preferred Securities, the Guarantee and the
Junior Subordinated Notes, in the form in which it was
included in the Registration Statement at the time it
became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration
Statement; the Prospectus as supplemented by a
preliminary prospectus supplement dated January 21,
1997 relating to the Preferred Securities, including
any documents incorporated by reference therein as of
such date, being hereinafter called the "Preliminary
Supplemented Prospectus"; and the Prospectus as amended
or supplemented in final form by a prospectus
supplement relating to the Preferred Securities in the
form in which it is filed with the Commission, pursuant
to Rule 424(b) under the 1933 Act in accordance with
Section 3(g) hereof, including any documents
incorporated by reference therein as of the date of
such filing, being hereinafter called the "Final
Supplemented Prospectus").
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(b) The documents incorporated by reference in
the Registration Statement or Prospectus, when they
were filed with the Commission complied in all material
respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission
thereunder, and as of such time of filing, when read
together with the Prospectus, none of such documents
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when
such documents are filed with the Commission, will
comply in all material respects with the applicable
provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, except that neither the Trust nor the
Company makes any warranty or representation to any
Underwriter with respect to: (A) any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the
Company by an Underwriter through you expressly for use
in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus; or (B) any information set
forth in the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus under the caption "Book-
Entry-Only Issuance -- The Depository Trust Company".
(c) The Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with
the applicable provisions of the 1933 Act and the rules
and regulations of the Commission thereunder and did
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
(d) The Registration Statement, the Prospectus
and, to the extent not used to confirm sales of the
Securities, the Preliminary Supplemented Prospectus,
comply, and the Final Supplemented Prospectus and any
further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-
effective amendments are declared effective or
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supplements are filed with the Commission, as the case
may be, will comply, in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act,
the 1939 Act (hereinafter defined) and the General
Rules and Regulations of the Commission thereunder and
do not and will not, (i) as of the applicable effective
date as to the Registration Statement and any amendment
thereto, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus, and (iii) as of
the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material
fact or omit to state a material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; except that neither the Company nor the
Trust makes any warranties or representations with
respect to (A) that part of the Registration Statement
which shall constitute the Statements of Eligibility
(Form T-1) (collectively, the "Form T-1") under the
Trust Indenture Act of 1939, as amended (the "1939
Act"), (B) statements or omissions made in the
Registration Statement, the Preliminary Supplemented
Prospectus, or the Final Supplemented Prospectus in
reliance upon and in conformity with information
furnished in writing to the Trust or the Company by an
Underwriter expressly for use therein or (C) any
information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under
the caption "Book-Entry Only Issuance -- The Depository
Trust Company".
(e) With respect to the Registration Statement,
the conditions for use of Form S-3, as set forth in the
General Instructions thereof, have been satisfied.
(f) Since the respective dates as of which
information is given in the Registration Statement and
the Final Supplemented Prospectus, except as otherwise
stated therein, there has been no material adverse
change in the business, properties or financial
condition of the Company.
(g) Since the respective dates as of which
information is given in the Registration Statement and
the Final Supplemented Prospectus, except as otherwise
stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any
development involving a prospective material adverse
change in or affecting the business, properties or
financial condition of the Trust.
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(h) The Company is a corporation duly organized
and existing under the laws of the State of Maine, is
duly qualified to carry on its business as a foreign
corporation under the laws of the States of Florida,
Georgia and Mississippi, and has due corporate
authority to carry on the public utility business in
which it is engaged and to own and operate the
properties used by it in such business, to enter into
and perform its obligations under this Agreement, the
Trust Agreement, the Indenture and the Guarantee
Agreement and to purchase, own, and hold the Common
Securities issued by the Trust and to issue and deliver
the Junior Subordinated Notes and the Guarantee.
(i) The Trust has been duly created and is
validly existing and in good standing as a business
trust under the Delaware Act with the power and
authority to own property and to conduct its business
as described in the Registration Statement and Final
Supplemented Prospectus and to enter into and perform
its obligations under this Agreement and the Trust
Agreement; the Trust is duly qualified to transact
business as a foreign company and is in good standing
in any other jurisdiction in which such qualification
is necessary, except to the extent that the failure to
so qualify or be in good standing would not have a
material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other
than those described in the Final Supplemented
Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor
trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and
Final Supplemented Prospectus, will be validly issued
and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests
in the Trust and will conform in all material respects
to all statements relating thereto contained in the
Final Supplemented Prospectus; the issuance of the
Common Securities is not subject to preemptive or other
similar rights; and, on the Closing Date (as defined
herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the
Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable
right.
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(k) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(l) The Trust Agreement has been duly authorized
by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company and the
Administrative Trustees, and assuming due
authorization, execution and delivery of the Trust
Agreement by the Delaware Trustee and the Property
Trustee, the Trust Agreement will, on the Closing Date,
be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the
Company and the Administrative Trustees in accordance
with its terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles
of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the
"Enforceability Exceptions") and will conform in all
material respects to all statements relating thereto in
the Final Supplemented Prospectus; and, on the Closing
Date, the Trust Agreement will have been duly qualified
under the 1939 Act.
(m) The Guarantee Agreement has been duly
authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and
delivery of the Guarantee Agreement by the Guarantee
Trustee, the Guarantee Agreement will, on the Closing
Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Enforceability
Exceptions, and each of the Guarantee and the Guarantee
Agreement will conform in all material respects to all
statements relating thereto contained in the Final
Supplemented Prospectus; and, on the Closing Date, the
Guarantee Agreement will have been duly qualified under
the 1939 Act.
(n) The Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the Trust, will be
entitled to the benefits of the Trust Agreement and
will conform in all material respects to all statements
relating thereto contained in the Final Supplemented
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Prospectus; the issuance of the Preferred Securities is
not subject to preemptive or other similar rights;
(subject to the terms of the Trust Agreement) holders
of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for
profit.
(o) The Indenture has been duly authorized by the
Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on
the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the
Enforceability Exceptions; the Indenture will conform
in all material respects to all statements relating
thereto contained in the Final Supplemented Prospectus;
and, on the Closing Date, the Indenture will have been
duly qualified under the 1939 Act.
(p) The issuance and delivery of the Junior
Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by the
Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment
therefor as described in the Prospectus, will
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement
thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will
conform in all material respects to all statements
relating thereto in the Final Supplemented Prospectus.
(q) The Company's obligations under the Guarantee
(i) are subordinate and junior in right of payment to
all liabilities of the Company, except those obliga-
tions or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred
stock issued by the Company and (iii) are senior to all
common stock of the Company.
(r) The Junior Subordinated Notes are
subordinated and junior in right of payment to all
"Senior Indebtedness" (as defined in the Indenture) of
the Company.
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(s) Each of the Administrative Trustees of the
Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Trust Agreement.
(t) Neither the Trust nor the Company nor any of
the Company's other subsidiaries is and, after giving
effect to the offering and sale of the Preferred
Securities, will be an "investment company" or an
entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(u) The execution, delivery and performance by
the Offerors of this Agreement, the Trust Agreement,
the Preferred Securities, the Common Securities, the
Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee and the consummation by the
Offerors of the transactions contemplated herein and
therein and compliance by the Offerors with their
respective obligations hereunder and thereunder shall
have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors
and do not and will not result in any violation of the
charter or bylaws of the Company, or the Trust
Agreement or related Certificate of Trust and do not
and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Trust or the Company under (A) any
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the
Trust or the Company is a party or by which either of
them may be bound or to which any of their properties
may be subject (except for conflicts, breaches or
defaults which would not, individually or in the
aggregate, be materially adverse to the Trust or the
Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality
or court, domestic or foreign, or any regulatory body
or administrative agency or other governmental body
having jurisdiction over the Trust or the Company, or
any of their respective properties.
(v) No authorization, approval, consent or order
of any court or governmental authority or agency is
necessary in connection with the issuance and sale of
the Common Securities or the offering of the Preferred
Securities, the Junior Subordinated Notes or the
Guarantee or the transactions contemplated in this
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Agreement, except (A) such as may be required under the
1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility
Holding Company Act of 1935, as amended (the "1935
Act"); (C) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the
1939 Act; (D) the approval of the Florida Public
Service Commission (the "Florida Commission"); and (E)
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price per security set forth in
Schedule II hereto, the number of Preferred Securities set
forth in Schedule I opposite the name of such Underwriter,
plus any additional number of Preferred Securities that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the Preferred Securities shall be
an amount equal to the initial public offering price set
forth on Schedule II, which is a fixed price determined by
agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities will be used to purchase
the Junior Subordinated Notes of the Company, the Company
hereby agrees to pay on the Closing Date (as defined below)
to the Representative, for the accounts of the several
Underwriters, a commission per Preferred Security as set
forth on Schedule II for the Preferred Securities to be
delivered by the Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall
be made at the offices of Troutman Sanders LLP, NationsBank
Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia at 10:00
A.M., New York time, on January 31, 1997 (unless postponed
in accordance with the provisions of Section 10) or such
other time, place or date as shall be agreed upon by the
Representative, the Trust and the Company (such time and
date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Trust by wire
transfer in federal funds at the Closing Date, against
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delivery to the Representative for the respective accounts
of the Underwriters of certificates for the Preferred
Securities to be purchased by them. Certificates for the
Preferred Securities shall be in such denominations and
registered in such names as the Representative may request
in writing at least two business days before the Closing
Date. It is understood that each Underwriter has authorized
the Representative, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The
Representative, individually and not as Representative of
the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose check has not been
received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities
will be made available for examination and packaging by the
Representative not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or
cause to be paid, the commission payable at such time to the
Underwriters under Section 2(a) hereof by wire transfer
payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of
the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing
Date, will deliver to the Underwriters conformed copies
of the Registration Statement as originally filed and
of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each
case including all exhibits filed therewith, and
including unsigned copies of each consent and
certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company
is advised thereof, it will advise the Representative
orally of the issuance of any stop order under the 1933
Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the
Company shall have received notice, and will use its
best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if
issued. The Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration
Statement, the Prospectus, the Preliminary Supplemented
Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case
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without exhibits) for distribution to each Underwriter
and, from time to time, as many copies of the
Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters
may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Offerors will furnish the Underwriters
with copies of each amendment and supplement to the
Preliminary Supplemented Prospectus and Final
Supplemented Prospectus relating to the offering of the
Preferred Securities in such quantities as the
Underwriters may from time to time reasonably request.
If, during the period (not exceeding nine months) when
the delivery of a prospectus shall be required by law
in connection with the sale of any Preferred Securities
by an Underwriter or dealer, any event relating to or
affecting the Company, or of which the Company shall be
advised in writing by the Underwriters, shall occur,
which in the opinion of the Company or of Underwriters'
counsel should be set forth in a supplement to or an
amendment of the Preliminary Supplemented Prospectus or
Final Supplemented Prospectus, as the case may be, in
order to make the Preliminary Supplemented Prospectus
or Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if
for any other reason it shall be necessary during such
period to amend or supplement the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or
the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of
the Preferred Securities and (ii) at its expense, make
any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments
to the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus which will supplement or amend
the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a
material fact or omit to state any material fact
necessary in order to make the statements therein, in
the light of the circumstances when the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in
connection with the sale of any Preferred Securities
after the expiration of the period specified in the
preceding sentence, the Company, upon the request of
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such Underwriter, will furnish to such Underwriter, at
the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements
or amendments to the Final Supplemented Prospectus,
complying with Section 10(a) of the 1933 Act. During
the period specified in the second sentence of this
subsection, the Company will continue to prepare and
file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided, that
the Company shall not file such documents or amendments
without also furnishing copies thereof prior to such
filing to the Representative and Dewey Ballantine.
(c) The Offerors will endeavor, in cooperation
with the Underwriters, to qualify the Preferred
Securities and, to the extent required or advisable,
the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws
of such states and the other jurisdictions of the
United States as the Representative may designate;
provided, however, that neither of the Offerors shall
be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file
a consent to service of process or to file annual
reports or to comply with any other requirements in
connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to
its security holders as soon as practicable but not
later than 45 days after the close of the period
covered thereby, an earnings statement of the Company
(in form complying with the provisions of Rule 158 of
the rules and regulations under the 1933 Act) covering
a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158)
of the Registration Statement.
(e) The Offerors will use best efforts to effect
the listing of the Preferred Securities on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the
Junior Subordinated Notes on any exchange on which the
Preferred Securities are then listed.
(f) During a period of 15 days from the date of
this Agreement, neither the Trust nor the Company will,
without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any
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Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred
Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior
Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the
Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
(g) As soon as practicable after the date of this
Agreement, and in any event within the time prescribed
by Rule 424 under the 1933 Act, to file the Final
Supplemented Prospectus with the Commission and to
advise the Representative of such filing and to confirm
such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will
pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing
of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation, issuance and
delivery of the certificate(s) for the Preferred Securities
to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the
qualification of the Preferred Securities and, to the extent
required or advisable, the Guarantee and the Junior
Subordinated Notes, under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Preliminary
Supplemented Prospectus, the Final Supplemented Prospectus,
and any amendments or supplements thereto, (vi) the printing
and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of
the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Debt Trustee, including
the fees and disbursements of counsel for the Debt Trustee
in connection with the Indenture and the Junior Subordinated
Notes, (ix) the fees and expenses of the Delaware Trustee,
the Property Trustee and the Guarantee Trustee, including
the fees and disbursements of counsel for the Delaware
Trustee in connection with the Trust Agreement and the
related Certificate of Trust, (x) the fees and disbursements
of Delaware counsel to the Trust, (xi) any fees payable in
connection with the rating of the Preferred Securities and
Junior Subordinated Notes, (xii) the fees and expenses
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<PAGE>
incurred in connection with the listing of the Preferred
Securities and, if applicable, the Junior Subordinated Notes
on the New York Stock Exchange, (xiii) the cost and charges
of any transfer agent or registrar and (xiv) the cost of
qualifying the Preferred Securities with The Depository
Trust Company.
Except as otherwise provided in Section 9 hereof,
the Underwriters shall pay all other expenses incurred by
them in connection with their offering of the Preferred
Securities, including fees and disbursements of their
counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS'
OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Preferred Securities are subject to
the following conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall be in effect on the
Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing
of the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required
by Rule 424.
(b) Orders of the Florida Commission and the
Commission permitting the transactions contemplated
hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and
shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such
order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative,
are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the
Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties
to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the Representative shall
have received:
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<PAGE>
(1) The opinion, dated the Closing Date, of
Beggs & Lane, counsel for the Company, substantially in
the form attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of
Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
III-B.
(3) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to the
Trust, substantially in the form attached hereto as
Schedule IV.
(4) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to Chase
Manhattan Bank Delaware, as Delaware Trustee under the
Trust Agreement, substantially in the form attached
hereto as Schedule V.
(5) The opinion, dated the Closing Date, of
Cravath, Swaine & Moore, counsel to the Property
Trustee, the Guarantee Trustee and the Debt Trustee,
substantially in the form attached hereto as Schedule
VI.
(6) The favorable opinion, dated as of the
Closing Date, of Dewey Ballantine, counsel for the
Underwriters, substantially in the form attached hereto
as Schedule VII.
(7) At the Closing Date, there shall not
have been, since the date hereof or since the
respective dates as of which information is given in
the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the
business, properties or financial condition of the
Trust or the Company, whether or not arising in the
ordinary course of business, and the Representative
shall have received a certificate of the President or
any Vice President of the Company and a certificate of
the Administrative Trustees of the Trust, and dated as
of the Closing Date, to the effect that (i) there has
been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are
true and correct with the same force and effect as
though expressly made at and as of the Closing Date,
(iii) the Trust and the Company have complied with all
agreements and satisfied all conditions on their
respective parts to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
16
<PAGE>
purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(8) On this Closing Date, the Representative
shall have received from Arthur Andersen LLP a letter
dated the Closing Date to the effect that: (A) they are
independent public accountants with respect to the
Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements and schedules audited
by them and incorporated by reference in the Prospectus
comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and
the 1934 Act and the rules and regulations under the
1933 Act and the 1934 Act; (C) they have performed
certain limited procedures through a specified date not
more than five business days prior to the date of such
letter, namely (i) reading the minute books of the
Company; (ii) reading the unaudited financial
statements, if any, of the Company incorporated in the
Prospectus and agreeing the amounts therein with the
Company's accounting records; (iii) making inquiries of
certain officials of the Company who have
responsibility for financial and accounting matters
regarding whether the unaudited financial statements,
if any, incorporated in the Prospectus (a) are in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements
incorporated in the Prospectus and (b) comply as to
form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules
and regulations under the 1934 Act; (iv) reading the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis),
which amounts shall include such amounts for the latest
period subsequent to that covered by the financial
statements incorporated by reference in the Prospectus
for which such amounts are available at the time this
agreement becomes effective; (v) reading the unaudited
financial statements from which the amounts and ratios
described in (iv) were derived and agreeing the amounts
therein to the Company's accounting records; (vi)
making inquiries of certain officials of the Company
who have responsibility for financial and accounting
matters regarding whether (a) the unaudited amounts and
ratios referred to in (iv) above and the unaudited and
the unaudited financial statements referred to in (v)
above are stated on a basis substantially consistent
with that of the corresponding audited amounts or
17
<PAGE>
ratios included or incorporated by reference in the
Prospectus and (b) as of a specified date not more than
five business days prior to the date of delivery of
such letter, there has been any change in the capital
stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown in the
latest audited balance sheet incorporated in the
Prospectus, except in each case for changes or
decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the
declaration of dividends, (III) are occasioned by draw-
downs under existing pollution control financing
arrangements, (IV) are occasioned by draw-downs and
regularly scheduled payments of capitalized lease
obligations, (V) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, or
(VI) are disclosed in such letter; (vii) reading the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)
for any period subsequent to those set forth in (iv)
above, which if available shall be set forth in such
letter; (viii) reading the unaudited financial
statements from which the amounts and ratios described
in (vii) above were derived and which will be attached
to such letter and agreeing the amounts therein to the
Company's accounting records; and (ix) making inquiries
of certain officials of the Company who have
responsibility for financial and accounting matters
regarding whether the unaudited amounts and ratios
referred to in (vii) above and the unaudited financial
statements referred to in (viii) above are stated on a
basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus; and (D)
reporting their findings as a result of performing the
limited procedures set forth in (C) above. It is
understood that the foregoing procedures do not
constitute an audit performed in accordance with
generally accepted auditing standards and they would
not necessarily reveal matters of significance with
respect to the comments made in such letter, and
accordingly that Arthur Andersen LLP make no
representations as to the sufficiency of such
procedures for the several Underwriter's purposes.
(9) On the Closing Date, counsel for the
Underwriters shall have been furnished with such
documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the
18
<PAGE>
issuance and sale of the Preferred Securities as herein
contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken
by the Offerors, in connection with the issuance and
sale of the Preferred Securities as herein contemplated
shall be satisfactory in form and substance to the
Representative and Dewey Ballantine, counsel for the
Underwriters.
(10) On the Closing Date, the Preferred
Securities shall have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(11) On the Closing Date, the Representative
shall have received a certificate of a Vice President
of the Company certifying that a Special Event (as
defined in the Final Supplemented Prospectus) shall not
have occurred and be continuing.
(12) That no amendment or supplement to the
Registration Statement, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14
of the Exchange Act) shall be unsatisfactory in form to
Dewey Ballantine or shall contain information (other
than with respect to an amendment or supplement
relating solely to the activity of any Underwriter or
Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the market-
ability of the Preferred Securities.
(13) The Company and the Trust shall have
performed their respective obligations when and as
provided under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time prior
to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided
in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF
THE OFFERORS.
The obligations of the Offerors shall be subject
to the conditions set forth in the first sentence of Section
5(a) and in Section 5(b). In case such conditions shall not
have been fulfilled, this Agreement may be terminated by the
19
<PAGE>
Company by mailing or delivering written notice thereof to
the Underwriters. Any such termination shall be without
liability of any party to any other party except as
otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to
indemnify and hold harmless each of the Underwriters and
each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, 1934 Act
or otherwise, and to reimburse the Underwriters and such
controlling person or persons, if any, for any legal or
other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
Prospectus or, if the Offerors shall furnish to the
Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the
1934 Act which are incorporated therein by reference, in any
Preliminary Prospectus, the Registration Statement, the
Prospectus, the Preliminary Supplemented Prospectus, or the
Final Supplemented Prospectus as so amended or supplemented,
or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement
or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus,
the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for
use therein and except that this indemnity with respect to
the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
Prospectus, if the Offerors shall have furnished any
amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the
Preferred Securities to any person if a copy of the
Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
20
<PAGE>
Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may
then be amended or supplemented, shall not have been sent or
given by or on behalf of such Underwriter to such person
with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in
the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus
as supplemented or amended at the time of such confirmation.
Each Underwriter agrees, within ten days after the receipt
by it of notice of the commencement of any action in respect
of which indemnity may be sought by it, or by any person
controlling it, from the Offerers on account of its
agreement contained in this Section 7, to notify the
Offerors in writing of the commencement thereof but the
omission of such Underwriter so to notify the Offerors of
any such action shall not release the Offerors from any
liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 7. In case
any such action shall be brought against the Underwriters or
any such person controlling such Underwriters and such
Underwriter shall notify the Offerors of the commencement
thereof as above provided, the Offerors shall be entitled to
participate in (and, to the extent that they shall wish,
including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect
to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and
expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless the employment of
such counsel has been authorized in writing by the Offerors
in connection with defending such action. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such
action or claim and (ii)does not include any statement as
to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party. In no event
shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim effected without
its prior written consent.
21
<PAGE>
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 7(a)
hereunder.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors and such of its officers who have signed the
Registration Statement, the Trust and each other Underwriter
and each person, if any, who controls the Offerors or any
such other Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act to the same
extent and upon the same terms as the indemnity agreement of
the Offerors set forth in Section 7(a) hereof, but only with
respect to alleged untrue statements or omissions made in
the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus, or such documents as amended
or supplemented, in reliance upon and in conformity with
information furnished in writing to the Offerors by, or
through the Representative on behalf of, such Underwriter
for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements
contained in this Agreement, or contained in certificates of
officers or Trustees of the Offerors submitted pursuant
hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by, or on behalf of
the Offerors and shall survive delivery of the Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this
Agreement, by notice to the Offerors, at any time at or
prior to the Closing Date if (i) trading in securities on
the New York Stock Exchange shall have been generally
suspended, (ii) minimum or maximum ranges for prices shall
have been generally established on the New York Stock
Exchange by the Commission or by to New York Stock Exchange,
(iii) a general banking moratorium shall have been declared
by federal or New York State authorities, (iv) there shall
have occurred any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by the United States Congress or any
other substantial national or international calamity or
emergency affecting the United States, in any such case
provided for in clauses (i) through (iv) with the result
22
<PAGE>
that, in the reasonable judgement of the Representative, the
marketability of the Preferred Securities shall have been
materially impaired.
(b) If this Agreement shall be terminated by the
Underwriters pursuant to subsection (a) above or because of
any failure or refusal on the part of the Offerors to comply
with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable
to perform their obligations under this Agreement, then in
any such case, the Company will reimburse the Underwriters,
severally, for the reasonable fees and disbursements of
Dewey Ballantine and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparations for the purchase, sale
and delivery of the Preferred Securities and, upon such
reimbursement, the Offerors shall be absolved from any
further liability hereunder, except as provided in Sections
4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail
on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities
does not exceed 10% of the Preferred Securities, each
of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount
thereof in the proportions that their respective
underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities
exceeds 10% of the Preferred Securities, this Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
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<PAGE>
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative or the Offerors shall have the right to
postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the
Registration Statement or Final Supplemented Prospectus or
in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 85
Broad Street, New York, New York 10004, Attention: Don
Hansen, Registration; notices to the Offerors shall be
directed to the Company at 500 Bayfront Parkway, Pensacola,
Florida 32501, Attention: Corporate Secretary, with a copy
to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the
Trust, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation,
other than the Underwriters and the Trust and the Company
and their respective successors and the controlling persons
and officers, directors and trustees referred to in Section
7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Underwriters and
the Trust and the Company and their respective successors,
and said controlling persons and officers, directors and
trustees and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Preferred Securities from any Underwriter shall
be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except
as otherwise set forth herein, specified times of day refer
to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be
executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall
together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Trust and the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and
the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By:______________________________
Title:___________________________
GULF POWER CAPITAL TRUST I
By: Gulf Power Company, as
Depositor
_________________________________
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
By:_________________________________________
(Goldman, Sachs & Co.)
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER UMBER OF SECURITIES
Goldman, Sachs & Co. 234,000
Dean Witter Reynolds Inc. 234,000
A.G. Edwards & Sons, Inc. 234,000
The Robinson-Humphrey Company, Inc. 234,000
Smith Barney Inc. 234,000
Bear, Stearns & Co. Inc. 20,000
J.C. Bradford & Co. 20,000
Alex. Brown & Sons Incorporated 20,000
Donaldson, Lufkin & Jenrette Securities Corporation 20,000
EVEREN Securities, Inc. 20,000
Interstate/Johnson Lane Corporation 20,000
Legg Mason Wood Walker, Incorporated 20,000
Morgan Keegan & Company, Inc. 20,000
Oppenheimer & Co., Inc. 20,000
Prudential Securities Incorporated 20,000
Raymond James & Associates, Inc. 20,000
Wheat, First Securities, Inc. 20,000
Advest, Inc. 10,000
Blaylock & Partners, L.P. 10,000
Cowen & Company 10,000
Dain Bosworth Incorporated 10,000
Fahnestock & Co. Inc. 10,000
McDonald & Company Securities, Inc. 10,000
McGinn, Smith & Co., Inc. 10,000
The Ohio Company 10,000
Olde Discount Corporation 10,000
Piper Jaffray Inc. 10,000
Principal Financial Securities, Inc. 10,000
Rauscher Pierce Refsnes, Inc. 10,000
Roney & Co., LLC 10,000
Muriel Siebert & Co., Inc. 10,000
Stephens Inc. 10,000
Sutro & Co. Incorporated 10,000
Trilon International Inc. 10,000
Tucker Anthony Incorporated 10,000
U.S. Clearing Corp. 10,000
TOTAL 1,600,000
<PAGE>
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $.50 for
Preferred Securities sold to certain
institutions; $.7875 for Preferred
Securities sold to other purchasers
<PAGE>
Schedule III-A
[Letterhead of BEGGS & LANE]
___________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% TRUST CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as general counsel to Gulf Power
Company (the "Company") in connection with (i) its formation
of Gulf Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of __________ __, 199_
among the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of
Cumulative Quarterly Income Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale
of Common Securities evidencing approximately a 3% undivided
interest in the Trust; (iv) the Company's issuance and sale
to the Trust of approximately $___,___,___ of its Series A
_.__% Junior Subordinated Notes (the "Notes") pursuant to a
Subordinated Note Indenture dated as of ___________ __,
199_, by and between the Company and The Chase Manhattan
Bank, as trustee, as supplemented by the First Supplemental
Indenture dated as of ________ __, 199_ (collectively, the
"Indenture"); and (v) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement dated as of
_________ __, 199_ (the "Guarantee Agreement") between the
Company and Chase Manhattan Bank Delaware, as trustee. The
Preferred Securities are being sold to you today pursuant to
the terms of an Underwriting Agreement dated January __,
1997, among the Company, the Trust and the underwriters
named in Schedule I thereto (the "Underwriters") for whom
you are acting as Representative (the "Underwriting
Agreement"). This opinion is being delivered to you as
Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
<PAGE>
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos. 333-
19271, 333-19271-01 and 333-19271-02) pertaining to the
Preferred Securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"),
and the prospectus dated _______ ___, 199_ as supplemented
by a final prospectus supplement dated __________, 199_ (the
"Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1995, the
Quarterly Reports on Form 10-Q of the Company for the
quarters ended and the Current Reports on
Form 8-K of the Company dated (the "Exchange
Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as to matters of New
York law upon the opinion dated hereof rendered to you by
Dewey Ballantine, as to matters of Delaware law upon the
opinion dated hereof rendered to you by Richards, Layton &
Finger, as to matters of Georgia law and with respect to the
Act, the Exchange Act, the Trust Indenture Act (as
hereinafter defined) and the Public Utility Holding Company
Act of 1935, as amended, on the opinion dated the date
hereof rendered to you by Troutman Sanders LLP, that:
1. The Company has been duly organized and is validly
existing and in good standing as a corporation under the
laws of the State of Maine, is duly qualified to carry on
its business as a foreign corporation under the laws of the
States of Florida, Georgia and Mississippi, and has due
corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
2
<PAGE>
3. All orders, consents, or other authorizations or
approvals of the Florida Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and the delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable
3
<PAGE>
against the Company in accordance with its terms, subject to
the qualifications that the enforceability of the Company's
obligations under the Guarantee may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee conforms as to legal
matters in all material respects to the description thereof
in the Final Supplemented Prospectus.
7. The Trust Agreement has been duly authorized,
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustees, the
Trust Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally,
and by general principles of equity.
8. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act").
9. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
10. The statements and legal conclusions contained in
the Final Supplemented Prospectus under the caption "Certain
Federal Income Tax Considerations" are correct in all
material respects.
11. To the best of our knowledge, all of the issued
and outstanding Common Securities of the Trust are directly
owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
12. The execution, delivery and performance by the
Trust of the Underwriting Agreement and the Trust Agreement;
the issuance by the Trust of the Preferred Securities and
the Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the
Trust with its obligations thereunder do not and will not
result in any violation of the Trust Agreement or related
Certificate of Trust, and do not and will not conflict with,
4
<PAGE>
or result in, a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any
other agreement or instrument known to us to which the Trust
is a party or by which it may be bound or to which any of
its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition
(financial or otherwise), of the Trust, (B) any existing
applicable law, rule or regulation applicable to the Trust
(other than the securities or blue sky laws of any
jurisdiction, as to which we express no opinion) or (C) any
judgment, order or decree known to us of any government,
governmental instrumentality, or court, domestic or foreign,
or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Trust or any
of its properties; and the Trust is not a party to or
otherwise bound by any agreement other than those which are
exhibits (or included in exhibits) to the Registration
Statement.
13. The Common Securities have been duly authorized by
the Trust Agreement and (subject to the terms of the Trust
Agreement), when issued and delivered by the Trust to the
Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued and (subject
to the terms of the Trust Agreement) fully paid and non-
assessable beneficial interests in the assets of the Trust;
and the issuance of the Common Securities is not subject to
preemptive or other similar rights.
14. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will (subject to the terms of the Trust
Agreement) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders
of private corporations for profit organized under the
general corporation law of the State of Delaware; the
issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
5
<PAGE>
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6, 10 and 14 above and in the
Final Supplemented Prospectus in the second and third
paragraphs under the caption "Experts". In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with other
counsel for the Company and with representatives of Arthur
Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of __________,
complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement therein of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief
with respect to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents.
We are members of the State Bar of Florida and we
do not express any opinion herein concerning any law other
than the law of the States of Florida and Mississippi and
the federal law of the United States and, to the extent set
6
<PAGE>
forth herein, the laws of the States of Delaware and New
York.
This opinion is rendered to you in connection with
the above-described transaction. This opinion may not be
relied upon by you for any other purpose, or relied upon by
or furnished to any other person without our prior written
consent, except that Troutman Sanders LLP and Dewey
Ballantine may rely on this opinion in giving their opinions
pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Florida and
Mississippi law.
Yours very truly,
BEGGS & LANE
7
<PAGE>
Schedule III-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% TRUST CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Gulf Power Company
(the "Company") in connection with (i) its formation of Gulf
Power Capital Trust I, a Delaware statutory business trust
(the "Trust"), pursuant to the amended and restated trust
agreement dated __________, 199_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the
Trust's issuance and sale of Cumulative Quarterly Income
Preferred Securities evidencing approximately a 97%
undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately a 3% undivided interest
in the Trust; (iv) the Company's issuance and sale to the
Trust of $___________ of its Series A ___% Junior
Subordinated Notes (the "Notes") pursuant to a Subordinated
Note Indenture dated as of __________, 199_, by and between
the Company and ____________________, as trustee, as
supplemented by the First Supplemental Indenture dated as of
__________ __, 199_ (collectively, the "Indenture"); and (v)
its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of __________, 199_ (the
"Guarantee Agreement") between the Company and
___________________, as trustee. The Preferred Securities
are being sold to you today pursuant to the terms of an
Underwriting Agreement dated __________, 199_ (the
"Underwriting Agreement"), among the Company, the Trust and
the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative.
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos.
333-19271, 333-19271-01 and 333-19271-02) pertaining to the
<PAGE>
Preferred Securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"),
and the prospectus dated _______ ___, 199_ as supplemented
by a final prospectus supplement dated __________, 199_ (the
"Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1995, the
Quarterly Reports on Form 10-Q of the Company for the
quarters ended and the Current Reports on
Form 8-K of the Company dated (the "Exchange
Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the
originals of such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion, relying as to matters of Florida and Mississippi
law upon the opinion dated the date hereof rendered to you
by Beggs & Lane, relying as to matters of New York law upon
the opinion dated the date hereof rendered to you by Dewey
Ballantine and relying as to matters of Delaware law upon
the opinion dated the date hereof rendered to you by
Richards, Layton & Finger, that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maine, is duly qualified to carry on
its business as a foreign corporation in the States of
Florida, Georgia and Mississippi and has due corporate
authority to carry on the public utility business in which
it is engaged, to own and operate the properties used by it
in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
2
<PAGE>
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents or other authorizations or
approvals of the Florida Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law); and the Notes conform as to legal matters in all
3
<PAGE>
material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its
terms, subject to the qualifications that the enforceability
of the Company's obligations under the Guarantee Agreement
may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the
Guarantee Agreement conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
9. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; and the
Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6, and 9 above. In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with other
counsel for the Company, with representatives of Arthur
Andersen LLP and with your counsel. Based upon our
examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of
4
<PAGE>
the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents and our
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Final Supplemented Prospectus,
as of _______________, complied as to form in all material
respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to
the financial statements or other financial or statistical
data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents.
We are members of the State Bar of Georgia and we
do not express any opinion herein concerning any law other
than the law of the State of Georgia and the federal law of
the United States and, to the extent set forth herein, the
laws of the States of Maine, Mississippi, Delaware and New
York.
This opinion is rendered to you in connection with
the above-described transaction. This opinion may not be
relied upon by you for any other purpose, or relied upon by
or furnished to any other person without our prior written
consent.
Yours very truly,
TROUTMAN SANDERS LLP
5
<PAGE>
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Re: Gulf Power Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Gulf
Power Company, a Maine corporation (the "Company"), and Gulf
Power Capital Trust I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you pursuant to Section
5(c)(3) of the Underwriting Agreement, dated __________,
199_ (the "Underwriting Agreement"), among the Company, the
Trust, Goldman, Sachs & Co. and the other Underwriters
listed in Schedule I thereto.
For purposes of giving the opinions hereinafter
set forth, our examination of documents has been limited to
the examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated
__________, 199_ (the "Certificate"), as filed in the office
of the Secretary of State of the State of Delaware (the
"Secretary of State") on _________, 199_;
(b) The Trust Agreement of the Trust, dated as of
_________, 199_, among the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement,
dated as of _________, 199_ (including Exhibits C and E),
among the Company, the trustees of the Trust named therein,
and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (the "Trust
Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated __________ __, 199_
(the "Prospectus"), as supplemented by the Prospectus
Supplement dated __________, 199_ (the "Prospectus
Supplement"), relating to the __% Trust Cumulative Quarterly
<PAGE>
Income Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets of
the Trust (each, a "Preferred Security" and collectively,
the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated ___________ __, 199_, 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)
the Trust Agreement constitutes the entire agreement among
the parties thereto with respect to the subject matter
thereof, including with respect to the creation, operation
and termination of the Trust, and the Trust Agreement and
the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation or
due creation, as the case may be, and valid existence in
good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its
organization or formation or creation, (iii) the legal
capacity of natural persons who are parties to the documents
examined by us, (iv) except to the extent provided in
paragraph 2 below, the power and authority of each of the
parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraph 4
below, the due authorization, execution and delivery by all
<PAGE>
parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be
issued by the Trust (collectively, the "Trust Security
Holders") of a Trust Securities Certificate for such Trust
Security and the payment for the Trust Security acquired by
it, in accordance with the Trust Agreement, the Prospectus
and the Prospectus Supplement, and (vii) the issuance and
sale of the Trust Securities to the Trust Security Holders
in accordance with the Trust Agreement, the Prospectus and
the Prospectus Supplement. We have not participated in the
preparation of the Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State
of Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently
in effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 Del. C. 3801, et seq.
(the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business
trust have been made.
2. Under the Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to
(i) own property and conduct its business, all as described
in the Prospectus and the Prospectus Supplement, (ii)
execute and deliver, and to perform its obligations under,
the Underwriting Agreement, (iii) issue and perform its
obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
3. The Trust Securities have been duly
authorized by the Trust Agreement and will be duly and
validly issued undivided beneficial interests in the assets
of the Trust. Subject to the qualifications set forth in
paragraph 6 below, the Preferred Securities are fully paid
and nonassessable undivided beneficial interests in the
assets of the Trust. Under the Business Trust Act and the
Trust Agreement, the Trust Securities are not subject to any
preemptive or other similar rights.
<PAGE>
4. Under the Business Trust Act and the Trust
Agreement, the Underwriting Agreement has been duly
authorized by all necessary trust action on the part of the
Trust.
5. No authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust
solely as a result of the issuance and sale of the Preferred
Securities.
6. The Persons to whom Preferred Securities are
to be issued by the Trust (collectively, 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, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or
exchanges of Preferred Securities Certificates and the
issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with
requests of or directions to the Property Trustee to
exercise its rights and powers under the Trust Agreement.
7. The Trust Agreement constitutes a valid and
binding obligation of the Company, and is enforceable
against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the
Trust Securities, the execution, delivery and performance by
the Trust of the Underwriting Agreement, the consummation by
the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and
compliance by the Trust with its obligations thereunder do
not violate (i) any of the provisions of the Certificate or
the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the
Prospectus under the caption "The Trusts" and the statements
in the Prospectus Supplement under the caption "Gulf Power
Capital Trust I" and, insofar as they contain statements of
Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is
subject as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting
the rights and remedies of creditors generally, (ii)
<PAGE>
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification. In addition, in
connection with the opinion expressed in paragraph 7 above,
to the extent that Section 10.05 of the Trust Agreement
provides that the Trust Agreement is governed by New York
law, we express no opinion concerning Section 10.05 of the
Trust Agreement or the effect of Section 10.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of
Delaware law upon this opinion in connection with the
Underwriting Agreement. We consent to the law firms of
Beggs & Lane, Troutman Sanders LLP and Dewey Ballantine
relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to
the Underwriting Agreement. Except as stated above, without
our prior written consent, this opinion may not be furnished
or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
Schedule V
[Letterhead of Richards, Layton & Finger]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Re: Gulf Power Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank
Delaware, a Delaware banking corporation ("CMBD"), in
connection with the formation of Gulf Power Capital Trust I,
a business trust existing under the laws of the State of
Delaware (the "Trust") pursuant to the Trust Agreement,
dated __________, 199_, by and between CMBD, not in its
individual capacity but solely as trustee (the "Trustee"),
and Gulf Power Company (the "Company"), as amended and
restated pursuant to an Amended and Restated Trust Agreement
dated as of __________ __, 199_, among the Company, the
Trustee, the other trustees named therein and the holders
from time to time of the undivided beneficial interests in
the assets of the Trust (collectively, the "Trust
Agreement"). This opinion is being delivered to you
pursuant to Section 5(c)(4) of the Underwriting Agreement,
dated ___________ __, 199_ (the "Underwriting Agreement"),
among Goldman, Sachs & Co., the several Underwriters named
in Schedule I thereto, Gulf Power Company and the Trust,
pursuant to which the $___,___,___ ___% Cumulative Quarterly
Income Preferred Securities of the Trust will be sold. All
capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the
Underwriting Agreement.
We have examined an original or a copy of the
Trust Agreement. We have also examined originals or copies
of such other documents and such corporate records,
certificates and other statements of governmental officials
and corporate officers and other representatives of the
<PAGE>
corporations or entities referred to herein as we have
deemed necessary or appropriate for the purposes of the
opinions expressed herein. Moreover, as to certain facts
material to the opinions expressed herein, we have relied
upon the representations and warranties contained in the
documents referred to in this paragraph.
Based upon the foregoing and upon an examination
of such questions of law as we have deemed necessary or
appropriate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
1. CMBD is duly incorporated, validly existing
in good standing as a banking corporation under the laws of
the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
2. The Trust Agreement has been duly authorized,
executed and delivered by CMBD and constitutes a legal,
valid and binding obligation of CMBD, enforceable against
CMBD, in accordance with its terms.
3. The execution and delivery of, and
performance of the terms of, the Trust Agreement by CMBD,
does not conflict with or constitute a breach of, or default
under, the charter or by-laws of CMBD.
4. No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body having jurisdiction in the
premises is required under Delaware law for the execution,
delivery or performance by CMBD of the Trust Agreement.
The foregoing opinions are subject to the
following exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of
Delaware and we do not hold ourselves out as being experts
on the law of any other jurisdiction. The foregoing
opinions are limited to the laws of the State of Delaware
and the federal laws of the United States of America
governing the banking and trust powers of CMBD (except that
we express no opinion with respect to (i) state securities
or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended,
the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended), and we have not
considered and express no opinion on the laws, rules and
regulations of any other jurisdiction.
<PAGE>
(B) The foregoing opinions regarding
enforceability are subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent transfer or conveyance and similar laws relating
to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of federal or state securities laws on
the enforceability of provisions relating to indemnification
or contribution.
(C) We have assumed the due authorization,
execution and delivery by each of the parties thereto, other
than CMBD, of the Trust Agreement, and that each of such
parties has the full power, authority and legal right to
execute, deliver and perform such document.
(D) We have assumed that all signatures (other
than those of CMBD) on documents examined by us are genuine,
that all documents submitted to us as originals are
authentic, and that all documents submitted to us as copies
or specimens conform with the originals, which facts we have
not independently verified.
This opinion may be relied upon by you in
connection with the matters set forth herein, and without
our prior written consent, may not be furnished or quoted
to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
<PAGE>
Schedule VI
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
_.__% Trust Cumulative Quarterly Income Preferred Securities
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank
(the "Bank") in connection with (a) the Subordinated Note
Indenture, dated as of ________ ______, 199_ (the "Original
Indenture"), between Gulf Power Company (the "Company") and
the Bank, as Trustee, (b) the First Supplemental Indenture
dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the
Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of __________ ______, 199_ (the
"Guarantee Agreement"), between the Company, as Guarantor
and the Bank, as Trustee, and (d) the Amended and Restated
Trust Agreement, dated as of _________ ______, 199_ (the
"Trust Agreement") among the Company, the Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and _________________ and _______________, as Administrative
Trustees.
In that connection, we have examined originals, or
copies certified or otherwise identified to our satisfac-
tion, of such documents, records and other instruments as we
have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture, the Trust
Agreement, the Guarantee Agreement and certain resolutions
adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
<PAGE>
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power
and authority to execute, deliver and perform its
duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered
the Indenture, the Trust Agreement and the Guarantee
Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the
other parties thereto, each of the Indenture, the Trust
Agreement and the Guarantee Agreement constitutes a
legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its
terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from
time to time in effect and subject, as to
enforceability, to general principles of equity,
regardless of whether such enforceability is considered
in a proceeding in equity or at law).
iii) the execution, delivery and performance
by the Bank of the Indenture, the Trust Agreement and
the Guarantee Agreement do not conflict with or
constitute a breach of the charter or bylaws of the
Bank.
iv) no approval, authorization or other
action by, or filing with, any governmental authority
of the United States of America or the State of New
York having jurisdiction over the trust powers of the
Bank is required in connection with the execution and
delivery by the Bank of the Indenture, the Trust
Agreement or the Guarantee Agreement or the performance
by the Bank of its duties thereunder, except such as
have been obtained, taken or made.
We are admitted to practice in the State of New
York, and we express no opinion as to matters governed by
any laws other than the laws of the State of New York and
the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit.
This opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
<PAGE>
Schedule VII
[Letterhead of DEWEY BALLANTINE]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% Trust Cumulative Quarterly Income Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Gulf Power
Company (the "Company") of Gulf Power Capital Trust I (the
"Trust"), a Delaware statutory business trust, pursuant to
the amended and restated trust agreement dated __________,
199_ among the Company and the trustees named therein (the
"Trust Agreement"); (ii) the Trust's issuance and sale of
Cumulative Quarterly Income Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale
of Common Securities evidencing approximately a 3% undivided
interest in the Trust; (iv) the Company's issuance and sale
to the Trust of $___________ of its Series A ___% Junior
Subordinated Notes (the "Notes") pursuant to a Subordinated
Note Indenture dated as of __________, 199_, by and between
the Company and ____________, as trustee, as supplemented by
the First Supplemental Indenture dated as of __________ __,
199_ (collectively, the "Indenture"); and (v) the Company's
issuance of a guarantee (the "Guarantee") of the Preferred
Securities pursuant to a Preferred Securities Guarantee
Agreement dated as of __________, 199_ (the "Guarantee
Agreement") between the Company and ____________________, as
trustee, we have acted as counsel to you and the other
underwriters named in the Schedule I (the "Underwriters") of
the Underwriting Agreement dated __________ __, 199_, among
the Company, the Trust and the Underwriters for whom you are
acting as Representative (the "Underwriting Agreement").
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(6) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos.
333-19271, 333-19271-01 and 333-19271-02) pertaining to the
Preferred Securities (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"),
<PAGE>
and the prospectus dated , as
supplemented by a final supplemental prospectus dated
, which pursuant to Form S-3 incorporates by reference
the Annual Report on Form 10-K of the Company for the fiscal
year ended December 31, 1995, the Quarterly Reports on Form
10-Q of the Company for the quarters ended
and the Current Reports on Form 8-K of the Company, dated
(the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the
originals of such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion, relying as aforesaid and as to all matters covered
hereby which are governed by or dependent upon the laws of
the States of Florida and Mississippi upon the opinion of
Beggs & Lane dated the date hereof and addressed to you, as
to all matters covered hereby which are governed by or
dependent upon the laws of the State of Georgia upon the
opinion of Troutman Sanders LLP dated the date hereof and
addressed to you, and as to all matters covered hereby which
are governed by or dependent upon the laws of the State of
Delaware upon the opinion of Richards, Layton & Finger,
dated the date hereof and addressed to you and a form of
which is attached as Schedule IV to the Underwriting
Agreement, that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maine, is duly qualified to carry on
its business as a foreign corporation in the States of
Florida, Georgia and Mississippi and has due corporate
authority to carry on the public utility business in which
it is engaged and to own and operate the properties used by
<PAGE>
it in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by
the Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents, or other authorizations
or approvals of the Florida Public Service Commission and
the Commission legally required for the issuance and
delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such
orders are sufficient for the issuance and delivery of the
Notes and the Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and
executed by the Company and, when authenticated by the Debt
Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid
and binding obligations of the Company enforceable against
the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
<PAGE>
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law); the Notes conform as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Guarantee Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the
enforceability of the Company's obligations under the
Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Guarantee Agreement conforms as to legal
matters in all material respects to the description thereof
in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee
Agreement and the Trust Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly
authorized by the Trust Agreement and (subject to the terms
of the Trust Agreement), when delivered to and paid for the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6 and 8 above. In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with
representatives of Arthur Andersen LLP and with counsel to
the Company. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in
connection with the preparation of the Registration
Statement and the Final Supplemented Prospectus and our
<PAGE>
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Final Supplemented Prospectus,
as of ___________, complied as to form in all material
respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to
the financial statements or other financial or statistical
data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents.
We are members of the State Bar of New York and we
do not express any opinion herein concerning any law other
than the law of the State of New York and the federal law of
the United States, and to the extent set forth herein, the
laws of the States of Delaware, Maine, Mississippi, Georgia
and Florida.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP
may rely on this opinion in giving their opinions pursuant
to Section 5(c) of the Underwriting Agreement, insofar as
such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE
<PAGE>
Exhibit 4.1
GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
SUBORDINATED NOTE INDENTURE
DATED AS OF JANUARY 1, 1997
<PAGE>
<TABLE>
<CAPTION>
GULF POWER COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
SUBORDINATED NOTE INDENTURE, DATED AS OF JANUARY 1, 1997
<S> <C> <C>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
(S) 310(a)(1)..............................................................................................609
(a)(2)..............................................................................................609
(a)(3)...................................................................................Not Applicable
(a)(4)...................................................................................Not Applicable
(b).................................................................................................608
610
(S) 311(a).....................................................................................................613
311(b)(4)...........................................................................................613(a)
(b)(6)...........................................................................................613(b)
(S) 312(a).................................................................................................701
702(a)
(c)..............................................................................................702(b)
(S) 313(a)..............................................................................................703(a)
313(b)..............................................................................................703(b)
313(c)..............................................................................................703(c)
704
(d)..............................................................................................703(c)
(S) 314(a)...........................................................................................704, 1007
(b)......................................................................................Not Applicable
(c)(1)..............................................................................................102
(c)(2)..............................................................................................102
(c)(3)...................................................................................Not Applicable
(d)......................................................................................Not Applicable
(e).................................................................................................102
(S) 315(a)..............................................................................................601(a)
(b).................................................................................................602
(c)..............................................................................................601(b)
(d)..............................................................................................601(c)
(d)(1)........................................................................................601(a)(1)
(d)(2)........................................................................................601(c)(2)
(d)(3)........................................................................................601(c)(3)
(e).................................................................................................514
(S) 316(a).................................................................................................101
(a)(1)(A)...........................................................................................502
512
(a)(1)(B)...........................................................................................513
(a)(2)...................................................................................Not Applicable
(b).................................................................................................508
(S) 317(a)(1)..............................................................................................503
(a)(2)..............................................................................................504
(b)................................................................................................1003
(S) 318(a).................................................................................................107
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C> <C>
PAGE
Parties....................................................................................................1
Recitals of the Company....................................................................................1
ARTICLE ONE.................................................................................................1
SECTION 101. DEFINITIONS...........................................................................1
Act 2
Additional Interest.......................................................................2
Affiliate.................................................................................2
Authenticating Agent......................................................................3
Board Resolution..........................................................................3
Business Day..............................................................................3
Certificate of a Firm of Independent Public Accountants...................................3
Commission................................................................................3
Company 3
Company Request" or "Company Order........................................................4
Corporate Trust Office....................................................................4
Corporation...............................................................................4
Defaulted Interest........................................................................4
Depositary................................................................................4
Event of Default..........................................................................4
Global Security...........................................................................4
Guarantee.................................................................................4
Holder 4
Indenture.................................................................................5
Interest Payment Date.....................................................................5
Junior Subordinated Note..................................................................5
Maturity 5
Officers' Certificate.....................................................................5
Opinion of Counsel........................................................................5
Outstanding...............................................................................5
Paying Agent..............................................................................6
Paying Agent..............................................................................6
Person 6
Predecessor Security......................................................................7
Property Trustee..........................................................................7
</TABLE>
<PAGE>
<TABLE>
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Redemption Date...........................................................................7
Redemption Price..........................................................................7
Regular Record Date.......................................................................7
Responsible Officer.......................................................................7
Securities Trust..........................................................................8
Security Register" and "Security Registrar................................................8
Special Record Date.......................................................................8
Stated Maturity...........................................................................8
Trust Agreement...........................................................................9
Trust Indenture Act.......................................................................9
Trust Securities..........................................................................9
Trustee ................................................................................. 9
Vice President............................................................................9
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS..................................................9
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS..................................................9
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...............................................10
SECTION 104. ACTS OF HOLDERS......................................................................11
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY................................................12
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER...............................13
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT....................................................13
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.............................................14
SECTION 109. SUCCESSORS AND ASSIGNS...............................................................14
SECTION 110. SEPARABILITY CLAUSE..................................................................14
SECTION 111. BENEFITS OF INDENTURE................................................................14
SECTION 112. GOVERNING LAW........................................................................14
SECTION 113. LEGAL HOLIDAYS.......................................................................14
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE.....................................................15
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ARTICLE TWO................................................................................................15
SECTION 201. FORMS GENERALLY......................................................................15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION......................................16
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A GLOBAL SECURITY..................16
ARTICLE THREE..............................................................................................19
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.................................................19
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.......................................21
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE..................................23
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED NOTES......................25
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.......................................26
SECTION 307. CANCELLATION.........................................................................27
SECTION 308. COMPUTATION OF INTEREST..............................................................28
ARTICLE FOUR......................................................................................28
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE..............................................28
SECTION 402. APPLICATION OF TRUST MONEY...........................................................30
ARTICLE FIVE...............................................................................................30
SECTION 501. EVENTS OF DEFAULT....................................................................30
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...................................32
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE......................34
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.....................................................34
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR SUBORDINATED NOTES...........35
SECTION 506. APPLICATION OF MONEY COLLECTED.......................................................36
SECTION 507. LIMITATION ON SUITS..................................................................36
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST............37
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES...................................................38
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.......................................................38
SECTION 511. DELAY OR OMISSION NOT WAIVER.........................................................38
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES......................................39
SECTION 513. WAIVER OF PAST DEFAULTS..............................................................39
SECTION 514. UNDERTAKING FOR COSTS................................................................39
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.....................................................40
ARTICLE SIX................................................................................................40
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES..................................................40
SECTION 602. NOTICE OF DEFAULTS...................................................................42
SECTION 603. CERTAIN RIGHTS OF TRUSTEE............................................................42
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR SUBORDINATED NOTES................44
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES...................................................44
SECTION 606. MONEY HELD IN TRUST..................................................................45
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SECTION 607. COMPENSATION AND REIMBURSEMENT.......................................................45
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS..............................................45
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..............................................46
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR....................................46
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...............................................48
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS..........................49
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY....................................50
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT..................................................50
ARTICLE SEVEN..............................................................................................52
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS............................52
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS...............................53
SECTION 703. REPORTS BY TRUSTEE...................................................................53
SECTION 704. REPORTS BY COMPANY...................................................................54
ARTICLE EIGHT..............................................................................................55
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.................................55
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED....................................................56
ARTICLE NINE...............................................................................................56
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...................................56
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS......................................57
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE..................................58
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.................................................59
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES....................................................59
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT..................................................59
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL INDENTURES....................60
ARTICLE TEN................................................................................................60
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST...................................................60
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.....................................................60
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN TRUST....................61
SECTION 1004. ADDITIONAL INTEREST.................................................................63
SECTION 1005. CORPORATE EXISTENCE.................................................................63
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS..................................63
SECTION 1007. STATEMENT AS TO COMPLIANCE..........................................................64
SECTION 1008. WAIVER OF CERTAIN COVENANTS.........................................................65
SECTION 1009. COVENANTS REGARDING TRUST...........................................................65
ARTICLE ELEVEN.............................................................................................65
SECTION 1101. APPLICABILITY OF ARTICLE............................................................65
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE...............................................66
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE REDEEMED....................66
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SECTION 1104. NOTICE OF REDEMPTION................................................................67
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.........................................................67
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE................................68
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART..........................................68
ARTICLE TWELVE.............................................................................................69
SECTION 1201. APPLICABILITY OF ARTICLE............................................................69
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED NOTES................69
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND............................70
ARTICLE THIRTEEN...........................................................................................70
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS........................70
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC...........................................71
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT......................................72
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.....................................................73
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.............................73
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.........................................73
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.................................................74
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS...............................................74
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SECTION 1309. TRUST MONEYS NOT SUBORDINATED.......................................................75
SECTION 1310. NOTICE TO THE TRUSTEE...............................................................75
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT......................76
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS............................77
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION OF
TRUSTEE'S RIGHTS....................................................................77
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS..................................................77
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION PROVISIONS...............78
ARTICLE FOURTEEN............................................................................................78
SECTION 1401. NO RECOURSE AGAINST OTHERS...........................................................78
SECTION 1402. SET-OFF..............................................................................78
SECTION 1403. ASSIGNMENT; BINDING EFFECT...........................................................79
SECTION 1404. ADDITIONAL INTEREST..................................................................79
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<PAGE>
SUBORDINATED NOTE INDENTURE
THIS SUBORDINATED NOTE INDENTURE is made as of January 1, 1997, between
GULF POWER COMPANY, a corporation duly organized and existing under the laws of
the State of Maine (herein called the "Company"), having its principal office at
500 Bayfront Parkway, Pensacola, Florida 32501, and THE CHASE MANHATTAN BANK, a
banking corporation duly organized and existing under the laws of the State of
New York, having its principal corporate trust office at 450 West 33rd Street,
New York, New York 10001, as Trustee (herein called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the execution and delivery of
this Subordinated Note Indenture to provide for the issuance from time to time
of its unsecured subordinated debentures, notes or other evidences of
indebtedness (herein called the "Junior Subordinated Notes"), to be issued in
one or more series as in this Subordinated Note Indenture provided; and
WHEREAS, all things necessary to make this Subordinated Note Indenture
a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the premises and the
purchase of the Junior Subordinated Notes by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Junior Subordinated Notes or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Subordinated Note Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
<PAGE>
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United States
of America at the date of such computation;
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Subordinated Note Indenture as a whole and not to any
particular Article, Section or other subdivision; and
(5) Trust Securities related to a particular series of Junior Subordinated
Notes means the series of Trust Securities the proceeds of the sale of
which were loaned to the Company in exchange for such series of Junior
Subordinated Notes, and the guarantee related to such series of Trust
Securities means the guarantee pursuant to which the Company has
guaranteed, to the extent stated therein, the payment of distributions and
certain other amounts with respect to such series of Trust Securities.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder of a Junior Subordinated
Note, has the meaning specified in Section 104.
"Additional Interest" means (i) such additional amounts as may be
required so that the net amounts received and retained by the Holder (if the
Holder is a Securities Trust) after paying taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties, assessments,
or other governmental charges been imposed; and (ii) any interest due and not
paid on an Interest Payment Date, together with interest thereon from such
Interest Payment Date to the date of payment, compounded quarterly, on each
Interest Payment Date.
<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. Notwithstanding the foregoing, any Securities Trust organized by the
Company shall not be deemed to be an Affiliate of the Company.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to authenticate one or more series of Junior Subordinated Notes.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of the officers and/or directors of the Company
appointed by that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed, or (iii) a day on which the Trustee's
Corporate Trust Office or Property Trustee's principal corporate trust office is
closed for business.
<PAGE>
"Certificate of a Firm of Independent Public Accountants" means a
certificate signed by an independent public accountant or a firm of independent
public accountants who may be the independent public accountants regularly
retained by the Company or who may be other independent public accountants. Such
accountant or firm shall be entitled to rely upon an Opinion of Counsel as to
the interpretation of any legal matters relating to such certificate.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Subordinated Note Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee in the Borough
of Manhattan, New York City, at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
execution of this Subordinated Note Indenture is located at 450 West 33rd
Street, New York, New York 10001.
"Corporation" includes corporations, partnerships, limited liability
companies, associations, companies and business trusts.
"Defaulted Interest" has the meaning specified in Section 305.
<PAGE>
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 203 or 301, with respect to Junior Subordinated Notes of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means, with respect to any series of Junior
Subordinated Notes issued hereunder, a Junior Subordinated Note that is executed
by the Company and authenticated and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with Section 203
of this Indenture and any indenture supplemental hereto.
"Guarantee" means a Guarantee Agreement, if any, executed and delivered
by the Company for the benefit of the holders from time to time of all or a
portion of the Trust Securities of a Securities Trust.
"Holder", when used with respect to any Junior Subordinated Note, means
the Person in whose name the Junior Subordinated Note is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the particular series of Junior Subordinated
Notes established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any series of Junior
Subordinated Notes, means the dates established for the payment of interest
thereon, as provided in the supplemental indenture for such series.
"Junior Subordinated Note" has the meaning stated in the first recital
of this Indenture and more particularly means any Junior Subordinated Notes
authenticated and delivered under this Indenture.
<PAGE>
"Maturity", when used with respect to any Junior Subordinated Note,
means the date on which the principal of such Junior Subordinated Note or an
installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Junior Subordinated Notes,
means, as of the date of determination, all Junior Subordinated Notes
theretofore authenticated and delivered under this Indenture, except:
(i) Junior Subordinated Notes theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Junior Subordinated Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Junior Subordinated Notes; provided that if such
Junior Subordinated Notes are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii)Junior Subordinated Notes that have been paid or in exchange for or in
lieu of which other Junior Subordinated Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Junior
Subordinated Notes in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Junior Subordinated Notes
are held by a bona fide purchaser in whose hands such Junior Subordinated
Notes are valid obligations of the Company; and
<PAGE>
(iv) Junior Subordinated Notes, or portions thereof, converted into or exchanged
for another security if the terms of such Junior Subordinated Notes provide
for such conversion or exchange;
provided, however, that in determining, during any period in which any Junior
Subordinated Notes of a series are owned by any Person other than the Company or
any Affiliate thereof, whether the Holders of the requisite principal amount of
Outstanding Junior Subordinated Notes of such series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Junior
Subordinated Notes of such series owned by the Company or any Affiliate thereof
shall be disregarded and deemed not to be Outstanding. In determining whether
the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Junior Subordinated
Notes that the Trustee knows to be so owned by the Company or an Affiliate of
the Company in the above circumstances shall be so disregarded. Junior
Subordinated Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Junior Subordinated Notes and
that the pledgee is not the Company or any Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Junior Subordinated Notes
on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Junior Subordinated Note means
every previous Junior Subordinated Note evidencing all or a portion of the same
debt as that evidenced by such particular Junior Subordinated Note; and, for the
purposes of this definition, any Junior Subordinated Note authenticated and
delivered under Section 304 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Junior Subordinated Note shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Junior Subordinated
Note.
<PAGE>
"Property Trustee", when used with respect to the Junior Subordinated
Notes of any series, means the Person designated as such in the related Trust
Agreement.
"Redemption Date", when used with respect to any Junior Subordinated
Note to be redeemed, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Junior Subordinated
Note to be redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Junior Subordinated Notes of any series means the date specified for
that purpose as contemplated by Section 301, whether or not a Business Day.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any senior trust officer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Securities Trust" means any statutory business trust formed by the
Company or an Affiliate to issue Trust Securities, the proceeds of which will be
used to purchase Junior Subordinated Notes of one or more series.
<PAGE>
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 303.
"Senior Indebtedness" means, with respect to the Company, (i) any
payment due in respect of indebtedness of the Company, whether outstanding at
the date of execution of this Subordinated Note Indenture or thereafter
incurred, created, or assumed, (a) in respect of money borrowed (including any
financial derivative, hedging or futures contract or similar instrument) and (b)
evidenced by securities, debentures, bonds, notes or other similar instruments
issued by the Company which, by their terms, are senior or senior subordinated
debt securities including, without limitation, all obligations under its
indentures with various trustees; (ii) all capital lease obligations; (iii) all
obligations issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business and long-term purchase obligations); (iv) all
obligations for the reimbursement of any letter of credit, banker's acceptance,
security purchase facility or similar credit transaction; (v) all obligations of
the type referred to in clauses (i) through (iv) above of other persons the
payment of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) above of other persons secured by any lien on any property or asset
of the Company (whether or not such obligation is assumed by the Company),
except for (1) any such indebtedness that is by its terms subordinated to or
pari passu with the Junior Subordinated Notes and (2) any unsecured indebtedness
between or among the Company or its Affiliates. Such Senior Indebtedness shall
continue to be entitled to the benefits of the subordination provisions
contained in Article Thirteen irrespective of any amendment, modification or
waiver of any term of such Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on the
Junior Subordinated Notes of any series means a date fixed by the Trustee
pursuant to Section 305.
<PAGE>
"Stated Maturity", when used with respect to any Junior Subordinated
Note or any installment of principal thereof or interest thereon, means the date
specified in such Junior Subordinated Note as the fixed date on which the
principal of such Junior Subordinated Note or such installment of principal or
interest is due and payable.
"Trust Agreement", when used with respect to a Securities Trust, means
the agreement or instrument that governs the affairs of such Securities Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Trust Indenture Act or provision, as the case
may be, as amended or replaced from time to time.
"Trust Securities" means the securities issued by a Securities Trust
evidencing the entire beneficial interest therein.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Junior Subordinated Notes pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Junior
Subordinated Notes of any series shall mean the Trustee with respect to Junior
Subordinated Notes of that series.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
<PAGE>
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(i) a statement that each individual signing such certificate or opinion has
read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii)a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
<PAGE>
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent, shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The principal amount and serial numbers of Junior Subordinated
Notes held by any Person, and the date of holding the same, shall be proved by
the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Junior Subordinated Note
shall bind every future Holder of the same Junior Subordinated Note and the
Holder of every Junior Subordinated Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Junior Subordinated Note.
(e) The fact and date of execution of any such instrument or writing
and the authority of the Person executing the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) If the Company shall solicit from the Holders of Junior
Subordinated Notes of any series any Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the determination of Holders
of Junior Subordinated Notes entitled to take such Act, but the Company shall
have no obligation to do so. Any such record date shall be fixed at the
Company's discretion. If such a record date is fixed, such Act may be sought or
given before or after the record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders of Junior
Subordinated Notes for the purpose of determining whether Holders of the
requisite proportion of Junior Subordinated Notes of such series Outstanding
have authorized or agreed or consented to such Act, and for that purpose the
Junior Subordinated Notes of such series Outstanding shall be computed as of
such record date.
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SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder of a Junior Subordinated Note or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trustee Administration Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every
purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed
to the attention of its Treasurer, 500 Bayfront Parkway, Pensacola, Florida
32501, or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS OF JUNIOR SUBORDINATED NOTES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Junior Subordinated Notes of any event, such
notice shall be sufficiently given if in writing and mailed, first-class postage
prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
<PAGE>
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Junior Subordinated Notes shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required to be a part of and govern this
Indenture, such required provision shall control.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Junior Subordinated
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Junior Subordinated Notes, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Junior Subordinated Notes and, to the
extent provided in Section 1403, the holders of Senior Indebtedness or Trust
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
<PAGE>
SECTION 112. GOVERNING LAW.
This Indenture and the Junior Subordinated Notes shall be governed by,
and construed in accordance with, the internal laws of the State of New York.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Junior Subordinated Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Junior
Subordinated Notes) payment of interest or principal (and premium, if any) need
not be made on such date, but may be made on the next succeeding Business Day,
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company hereby
appoints the Trustee as its agent upon which process may be served in any legal
action or proceeding which may be instituted in any Federal or State court in
the Borough of Manhattan, New York City, arising out of or relating to the
Junior Subordinated Notes or this Indenture. Service of process upon such agent
at the office of such agent at 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trustee Administration Department (or such other address in
the Borough of Manhattan, New York City, as may be the Corporate Trust Office of
the Trustee), and written notice of such service to the Company by the Person
<PAGE>
serving the same addressed as provided in Section 105, shall be deemed in every
respect effective service of process upon the Company in any such legal action
or proceeding, and the Company hereby submits to the jurisdiction of any such
court in which any such legal action or proceeding is so instituted. Such
appointment shall be irrevocable so long as the Holders of Junior Subordinated
Notes shall have any rights pursuant to the terms thereof or of this Indenture
until the appointment of a successor by the Company with the consent of the
Trustee and such successor's acceptance of such appointment. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of such agent or successor.
By the execution and delivery of this Indenture, the Trustee hereby
agrees to act as such agent and undertakes promptly to notify the Company of
receipt by it of service of process in accordance with this Section.
ARTICLE TWO
SECTION 201. FORMS GENERALLY.
The Junior Subordinated Notes of each series shall be in substantially
the form appended to the supplemental indenture authorizing such series, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Junior Subordinated Notes, as evidenced by their
execution of the Junior Subordinated Notes.
The Junior Subordinated Notes of each series shall be issuable in
registered form without coupons.
The definitive Junior Subordinated Notes may be printed, typewritten,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Junior
Subordinated Notes, as evidenced by their execution of such Junior Subordinated
Notes.
<PAGE>
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The form of the Trustee's Certificate of Authentication for a series of
Junior Subordinated Notes shall be in substantially the form appended to the
Supplemental Indenture authorizing such series.
SECTION 203. JUNIOR SUBORDINATED NOTES ISSUABLE IN THE FORM OF A GLOBAL
SECURITY.
(a) If the Company shall establish pursuant to Section 301 that the
Junior Subordinated Notes of a particular series are to be issued in whole or in
part in the form of one or more Global Securities, then the Company shall
execute and the Trustee shall, in accordance with Section 302 and the Company
Order delivered to the Trustee thereunder, authenticate and deliver such Global
Security or Securities, which (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of the Outstanding Junior
Subordinated Notes of such series to be represented by such Global Security or
Securities, (ii) may provide that the aggregate amount of Outstanding Junior
Subordinated Notes represented thereby may from time to time be increased or
reduced to reflect exchanges, (iii) shall be registered in the name of the
Depositary for such Global Security or Securities or its nominee, (iv) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction and (v) shall bear a legend in accordance with the requirements of
the Depositary.
(b) Notwithstanding any other provision of this Section 203 or of
Section 303, subject to the provisions of paragraph (c) below, unless the terms
of a Global Security expressly permit such Global Security to be exchanged in
whole or in part for individual Junior Subordinated Notes, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
303, only to a nominee of the Depositary for such Global Security, or to the
Depositary, or to a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
<PAGE>
(c) (1) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the
Junior Subordinated Notes for such series shall no longer be eligible
or in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security. If
a successor Depositary for such Global Security is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of individual Junior Subordinated Notes of such series in
exchange for such Global Security, will authenticate and deliver
individual Junior Subordinated Notes of such series of like tenor and
terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(2) The Company may at any time and in its sole discretion
determine that the Junior Subordinated Notes of any series issued or
issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company
Request for the authentication and delivery of individual Junior
Subordinated Notes of such series in exchange in whole or in part for
such Global Security, will authenticate and deliver individual Junior
Subordinated Notes of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of
such Global Security or Securities representing such series in exchange
for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 301 with
respect to Junior Subordinated Notes issued or issuable in the form of
a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
<PAGE>
individual Junior Subordinated Notes of such series of like tenor and
terms in definitive form on such terms as are acceptable to the Company
and such Depositary. Thereupon the Company shall execute, and the
Trustee shall authenticate and deliver, without service charge, (A) to
each Person specified by such Depositary a new Junior Subordinated Note
or Notes of the same series of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and (B) to such Depositary a new
Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Junior Subordinated Notes delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate
and deliver individual Junior Subordinated Notes in definitive form in
authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Junior Subordinated Notes,
such Global Security shall be cancelled by the Trustee. Except as
provided in the preceding paragraph, Junior Subordinated Notes issued
in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. Provided that the Company and the Trustee have so agreed, the
Trustee shall deliver such Junior Subordinated Notes to the Persons in
whose names the Junior Subordinated Notes are registered.
(5) Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Junior Subordinated Notes represented
thereby shall be made in such manner and by such Person or Persons as
shall be specified therein or in the Company Order to be delivered
pursuant to Section 302 with respect thereto. Subject to the provisions
of Section 302, the Trustee shall deliver and redeliver any such Global
<PAGE>
Security in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 302 has been, or simultaneously is,
delivered, any instructions by the Company with respect to such Global
Security shall be in writing but need not be accompanied by or
contained in an Officers' Certificate and need not be accompanied by an
Opinion of Counsel.
ARTICLE THREE
THE JUNIOR SUBORDINATED NOTES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Junior Subordinated Notes which may
be authenticated and delivered under this Indenture is unlimited.
The Junior Subordinated Notes may be issued in one or more series.
There may be established, pursuant to one or more indentures supplemental
hereto, prior to the issuance of Junior Subordinated Notes of any series,
(1) the title of the Junior Subordinated Notes of the series (which shall
distinguish the Junior Subordinated Notes of the series from Junior
Subordinated Notes of all other series);
(2) any limit upon the aggregate principal amount of the Junior Subordinated
Notes of the series which may be authenticated and delivered under this
Indenture (except for Junior Subordinated Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Junior Subordinated Notes of the series pursuant to Sections 203, 303, 304,
907 or 1107);
(3) the Person to whom interest on a Junior Subordinated Note of the series
shall be payable if other than the Person in whose name that Junior
Subordinated Note (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest;
<PAGE>
(4) the date or dates on which the principal of the Junior Subordinated Notes
of the series is payable, and the right, if any, to extend the Stated
Maturity of the Junior Subordinated Notes and the conditions to such
extension;
(5) the rate or rates at which the Junior Subordinated Notes of the series
shall bear interest, if any, or any method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable,
the Regular Record Date for the interest payable on Junior Subordinated
Notes on any Interest Payment Date and the basis upon which interest shall
be calculated if other than that of a 360-day year consisting of twelve
30-day months;
(6) the place or places where the principal of (and premium, if any) and
interest, if any, on Junior Subordinated Notes of the series shall be
payable;
(7) the period or periods within which, the price or prices at which and the
terms and conditions upon which Junior Subordinated Notes of the series may
be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Junior
Subordinated Notes of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the terms and conditions
upon which, Junior Subordinated Notes of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the denominations in which Junior Subordinated Notes of the series shall be
issuable;
(10) if the amount of payments of principal of (and premium, if any) or interest
(including Additional Interest) on the Junior Subordinated Notes of the
series may be determined with reference to an index or formula, the manner
in which such amounts shall be determined;
<PAGE>
(11) if other than the principal amount thereof, the portion of the principal
amount of Junior Subordinated Notes of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(12) any deletions from, modifications of or additions to the Events of Default
or covenants of the Company as provided herein pertaining to the Junior
Subordinated Notes of the series, and any change in the rights of the
Trustee or Holders of such series pursuant to Section 901 or 902;
(13) any additions to the definitions currently set forth in this Indenture with
respect to such series;
(14) whether the Junior Subordinated Notes of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the terms
and conditions, if any, upon which such Global Security or Securities may
be exchanged in whole or in part for certificated Junior Subordinated Notes
of such series and of like tenor of any authorized denomination and the
circumstances under which such exchange may occur, if other than in the
manner provided for in Section 203; the Depositary for such Global Security
or Securities; and the form of any legend or legends to be borne by any
such Global Security in addition to or in lieu of the legend referred to in
Section 203;
(15) the right, if any, of the Company to extend the interest payment periods of
such series of Junior Subordinated Notes, including the maximum duration of
any such extension or extensions, the Additional Interest, if any, payable
on such Junior Subordinated Notes during any extension of the interest
payment period and any notice (which shall include notice to the Trustee)
that must be given upon the exercise of such right to extend interest
payment periods;
<PAGE>
<PAGE>
<PAGE>
(16) any restriction or condition on the transferability of such Junior
Subordinated Notes; and
(17) any other terms of the series.
All Junior Subordinated Notes of any one series shall be substantially
identical except as to the date or dates from which interest, if any, shall
accrue and denomination and except as may otherwise be provided in the terms of
such Junior Subordinated Notes determined or established as provided above. All
Junior Subordinated Notes of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened for issuances of
additional Junior Subordinated Notes of such series.
SECTION 302. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Junior Subordinated Notes shall be executed on behalf of the
Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Junior Subordinated Notes may be manual or facsimile.
Junior Subordinated Notes bearing the manual or facsimile signatures of
individuals who were at the time relevant to the authorization thereof the
proper officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Junior Subordinated Notes or did not hold
such offices at the date of such Junior Subordinated Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Junior Subordinated Notes of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Junior Subordinated
Notes, and the Trustee, in accordance with the Company Order, shall authenticate
and deliver such Junior Subordinated Notes. If all of the Junior Subordinated
Notes of any series are not to be issued at one time and if the supplemental
indenture establishing such series shall so permit, such Company Order may set
<PAGE>
forth procedures acceptable to the Trustee for the issuance of such Junior
Subordinated Notes and determining the terms of particular Junior Subordinated
Notes of such series, such as interest rate, maturity date, date of issuance and
date from which interest shall accrue. In authenticating Junior Subordinated
Notes hereunder, and accepting the additional responsibilities under this
Indenture in relation to such Junior Subordinated Notes, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon:
(1) an Opinion of Counsel, to the effect that:
(a) the form and terms of such Junior
Subordinated Notes or the manner of determining such
terms have been established in conformity with the
provisions of this Indenture; and
(b) such Junior Subordinated Notes, when
authenticated and delivered by the Trustee and issued
by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of
the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the
enforcement of creditors' rights and to general
equity principles; and
(2) an Officers' Certificate stating, to the best knowledge of
each signer of such certificate, that no event which is, or after
notice or lapse of time would become, an Event of Default with respect
to any of the Junior Subordinated Notes shall have occurred and be
continuing.
The Trustee shall not be required to authenticate such Junior Subordinated Notes
if the issue of such Junior Subordinated Notes pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Junior
Subordinated Notes and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
<PAGE>
If all the Junior Subordinated Notes of any series are not to be issued
at one time, it shall not be necessary to deliver an Opinion of Counsel and
Officers' Certificate at the time of issuance of each such Junior Subordinated
Note, but such opinion and certificate shall be delivered at or before the time
of issuance of the first Junior Subordinated Note of such series to be issued.
Each Junior Subordinated Note shall be dated the date of its
authentication.
No Junior Subordinated Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Junior Subordinated Note a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Junior Subordinated Note shall be conclusive evidence, and
the only evidence, that such Junior Subordinated Note has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
SECTION 303. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 303 or Section 1002 a register
(referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Junior Subordinated Notes and of transfers of Junior Subordinated Notes. The
Trustee is hereby initially appointed as Security Registrar for the purpose of
registering Junior Subordinated Notes and transfers of Junior Subordinated Notes
as herein provided.
Subject to Section 203, upon surrender for registration of transfer of
any Junior Subordinated Note of any series at the office or agency maintained
for such purpose for such series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Junior Subordinated Notes of the same series,
Stated Maturity and original issue date, of any authorized denominations and of
like tenor and aggregate principal amount.
<PAGE>
Subject to Section 203, Junior Subordinated Notes of any series may be
exchanged, at the option of the Holder, for Junior Subordinated Notes of the
same series, Stated Maturity and original issue date, of any authorized
denominations and of like tenor and aggregate principal amount, upon surrender
of the Junior Subordinated Notes to be exchanged at any such office or agency.
Whenever any Junior Subordinated Notes are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Junior Subordinated Notes that the Holder making the exchange is entitled to
receive.
All Junior Subordinated Notes issued upon any registration of transfer
or exchange of Junior Subordinated Notes shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Junior Subordinated Notes surrendered upon such registration
of transfer or exchange.
Every Junior Subordinated Note presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Junior Subordinated Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Junior
Subordinated Notes, other than exchanges pursuant to Section 304, 907 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, to register the
transfer of or to exchange Junior Subordinated Notes of any series during a
period of 15 days immediately preceding the date notice is given identifying the
serial numbers of the Junior Subordinated Notes of that series called for
redemption, or (ii) to issue, to register the transfer of or to exchange any
<PAGE>
Junior Subordinated Notes so selected for redemption in whole or in part, except
the unredeemed portion of any Junior Subordinated Note being redeemed in part.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 304. MUTILATED, DESTROYED, LOST AND STOLEN JUNIOR SUBORDINATED
NOTES.
If any mutilated Junior Subordinated Note is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Junior Subordinated Note of the same series,
Stated Maturity and original issue date, and of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Junior
Subordinated Note and (ii) such security or indemnity as may be required by them
to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Junior Subordinated
Note has been acquired by a bona fide purchaser, the Company shall execute and
upon its request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Junior Subordinated Note, a new Junior Subordinated
Note of the same series, Stated Maturity and original issue date, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Junior
Subordinated Note has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Junior Subordinated Note, pay
such Junior Subordinated Note.
<PAGE>
Upon the issuance of any new Junior Subordinated Note under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Junior Subordinated Note of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Junior Subordinated Note
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Junior Subordinated Note shall be
at any time enforceable by anyone, and any such new Junior Subordinated Note
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Junior Subordinated Notes of that series
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Junior Subordinated Notes.
SECTION 305. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Junior Subordinated Notes, interest (including Additional
Interest) on any Junior Subordinated Note that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Junior Subordinated Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest (including Additional Interest) on any Junior Subordinated
Note of any series that is payable, but is not punctually paid or duly provided
for on any Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
<PAGE>
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Junior Subordinated Notes of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Junior Subordinated Note
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Junior Subordinated Notes of such series at
the address of such Holder as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Junior Subordinated Notes of such
series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
(including Additional Interest, if any) on the Junior Subordinated
Notes of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Junior
<PAGE>
Subordinated Notes may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Junior
Subordinated Note delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Junior Subordinated Note shall
carry the rights to interest accrued (including Additional Interest, if any) and
unpaid, and to accrue (including Additional Interest, if any), which were
carried by such other Junior Subordinated Note.
SECTION 306. PERSONS DEEMED OWNERS.
Prior to due presentment of a Junior Subordinated Note for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Junior Subordinated Note is
registered as the absolute owner of such Junior Subordinated Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 305) interest (including Additional Interest, if any) on such Junior
Subordinated Note and for all other purposes whatsoever, whether or not such
Junior Subordinated Note be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 307. CANCELLATION.
All Junior Subordinated Notes surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by the Trustee. The Company may
at any time deliver to the Trustee for cancellation any Junior Subordinated
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Junior Subordinated Notes so
delivered shall be canceled by the Trustee. No Junior Subordinated Notes shall
be authenticated in lieu of or in exchange for any Junior Subordinated Notes
<PAGE>
canceled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Junior Subordinated Notes held by the Trustee shall be
disposed of in accordance with a Company Order and the Trustee shall promptly
deliver a certificate of disposition to the Company.
SECTION 308. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Junior
Subordinated Notes of any series, interest on the Junior Subordinated Notes of
each series shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall, upon Company Request, cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Junior Subordinated Notes herein expressly provided for) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Junior Subordinated Notes theretofore
authenticated and delivered (other than (i) Junior
Subordinated Notes that have been destroyed, lost or stolen
and that have been replaced as provided for in Section 304 and
(ii) Junior Subordinated Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Junior Subordinated Notes not
theretofore delivered to the Trustee for cancellation have
become due and payable, or have been called for redemption,
<PAGE>
and the Company, in the case of (B) above, has deposited or caused to
be deposited with the Trustee as funds in trust for the purpose
described above an amount sufficient to pay and discharge the entire
indebtedness on such Junior Subordinated Notes not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest to the date of the Stated Maturity or Redemption
Date, as the case may be, or if later, the date of payment;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
In the event there are Junior Subordinated Notes of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Junior Subordinated Notes of all series as to which it is Trustee and
if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instruments from all Trustees hereunder.
If, subsequent to the date a discharge is effected pursuant to this
Section 401, Additional Interest (in excess of that established as of the date
such discharge is effected) becomes payable in respect of the series of Junior
Subordinated Notes discharged, in order to preserve the benefits of the
discharge established hereunder, the Company shall irrevocably deposit or cause
to be irrevocably deposited in accordance with the provisions of this Section
401, within ten Business Days prior to the date the first payment in respect of
any portion of such excess Additional Interest becomes due, such additional
funds as are necessary to satisfy the provisions of this Section 401 as if a
<PAGE>
discharge were being effected as of the date of such subsequent deposit. Failure
to comply with the requirements of this paragraph shall result in the
termination of the benefits of the discharge established by this Section 401.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Junior Subordinated
Notes, and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or an Affiliate acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Junior
Subordinated Notes of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body or occasioned by the operation of Article
Thirteen):
(1) default in the payment of any interest upon any Junior
Subordinated Note of that series when it becomes due and payable on an
<PAGE>
Interest Payment Date other than at Maturity, including Additional
Interest (as defined in clause (ii) of the definition thereof) in
respect thereof, and continuance of such default for a period of ten
(10) days; provided, however, that (i) a valid extension of the
interest payment period by the Company pursuant to the terms of a
supplemental indenture authorizing the Junior Subordinated Notes of
that series shall not constitute a default in the payment of interest
for this purpose and (ii) no such default shall be deemed to exist if,
on or prior to the date on which such interest became due, the Company
shall have made a payment sufficient to pay such interest pursuant to
the Guarantee related to the Trust Securities of the Securities Trust
owning such series of Junior Subordinated Notes, and shall have
delivered a notice to the Trustee to that effect; or
(2) default in payment of Additional Interest (as defined in
clause (i) of the definition thereof) and the
continuance of such default for a period of ten (10)
days; or
(3) default in the payment of the principal of, (or premium,
if any) or interest (including Additional Interest as defined in clause
(ii) of the definition thereof) on any Junior Subordinated Note of that
series at its Maturity; provided, however, that no such default in the
payment of principal (or premium, if any) or interest (including
Additional Interest as defined in clause (ii) of the definition
thereof) shall be deemed to exist if, on or prior to the date such
principal (and premium, if any) or interest (including Additional
Interest as defined in clause (ii) of the definition thereof) became
due, the Company shall have made a payment sufficient to pay such
principal (and premium, if any) or interest (including Additional
Interest as defined in clause (ii) of the definition thereof) pursuant
to the Guarantee related to the Trust Securities of the Securities
Trust owning such series of Junior Subordinated Notes, and shall have
delivered a notice to the Trustee to that effect; or
(4) default in the deposit of any sinking fund payment, when
and as due by the terms of a Junior Subordinated Note of that series
and continuance of such default for a period of 3 Business Days; or
<PAGE>
(5) default in the performance or breach of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Junior Subordinated Notes other than that series), and continuance
of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Junior Subordinated Notes of that
series, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition by one or more Persons other
than the Company seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official for the
Company or for any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in a
<PAGE>
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action;
or
(8) any other Event of Default provided with respect to Junior
Subordinated Notes of that series in the supplemental indenture
authorizing such series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Junior Subordinated Notes of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Junior Subordinated Notes of that series may declare the principal
amount (or such portion of the principal amount as may be specified in the terms
of that series) of all of the Junior Subordinated Notes of that series to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Junior Subordinated Notes of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a majority in
principal amount of the Outstanding Junior Subordinated Notes of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
<PAGE>
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest (including any Additional Interest) on all Junior
Subordinated Notes of that series,
(B) the principal of (and premium, if any) any Junior Subordinated Notes
of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Junior Subordinated Notes,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest (including any Additional Interest) at the rate or
rates prescribed therefor in such Junior Subordinated Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due to the Trustee under
Section 607; and
(2) all Events of Default with respect to Junior Subordinated Notes
of that series, other than the non-payment of the principal of
Junior Subordinated Notes of that series which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
<PAGE>
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if an Event of Default occurs under Section
501(1), (2), (3) or (4) with respect to any Junior Subordinated Notes the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Junior Subordinated Notes, the whole amount then due and payable
on such Junior Subordinated Notes for principal (and premium, if any) and
interest (including Additional Interest, if any) and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest (including Additional
Interest, if any), at the rate or rates prescribed therefor in such Junior
Subordinated Notes, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due to the Trustee under Section
607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Junior Subordinated Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Junior
Subordinated Notes, wherever situated.
If an Event of Default with respect to Junior Subordinated Notes of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Junior
Subordinated Notes of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
<PAGE>
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Junior
Subordinated Notes or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Junior Subordinated Notes shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Junior Subordinated Notes and to file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due to the Trustee under
Section 607) and of the Holders of Junior Subordinated Notes allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Junior Subordinated Notes to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Junior Subordinated Notes, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Junior
<PAGE>
Subordinated Note any plan of reorganization, arrangement, adjustment or
composition affecting the Junior Subordinated Notes or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Junior Subordinated Note in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF JUNIOR
SUBORDINATED NOTES.
All rights of action and claims under this Indenture or the Junior
Subordinated Notes may be prosecuted and enforced by the Trustee without the
possession of any of the Junior Subordinated Notes or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Junior
Subordinated Notes in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Junior Subordinated Notes, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607; and
Second: Subject to Article Thirteen, to the payment of the amounts
then due and unpaid for principal of (and premium, if any) and
interest (including Additional Interest, if any) on the Junior
Subordinated Notes in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Junior Subordinated Notes for principal (and premium, if
any) and interest (including Additional Interest, if any),
respectively; and
<PAGE>
Third: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Junior Subordinated Note of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Junior
Subordinated Notes of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Junior Subordinated Notes of that series shall have
made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Junior Subordinated
Notes of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
<PAGE>
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture but subject to
Article Thirteen, (1) the Holder of any Junior Subordinated Notes shall have the
right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any) and (subject to Section 305) interest (including any
Additional Interest) on such Junior Subordinated Note on the due dates expressed
in such Junior Subordinated Note (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder; and
(2) so long as the Junior Subordinated Notes of any series are held by a
Securities Trust, a registered holder of preferred securities issued by such
Securities Trust may institute a legal proceeding directly against the Company,
without first instituting a legal proceeding directly against or requesting or
directing that action be taken by the Property Trustee of such Securities Trust
or any other Person, for enforcement of payment to such registered holder of
principal of or interest on Junior Subordinated Notes of such series having a
principal amount equal to the aggregate stated liquidation amount of such
preferred securities of such registered holder on or after the due dates
therefor specified or provided for in the Junior Subordinated Notes of such
series.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Junior Subordinated Note has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the
Trustee and the Holders of Junior Subordinated Notes shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
<PAGE>
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Junior Subordinated Notes in the last
paragraph of Section 304, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Junior Subordinated Notes is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Junior
Subordinated Note to exercise any right or remedy upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Junior Subordinated Notes
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Junior Subordinated Notes.
SECTION 512. CONTROL BY HOLDERS OF JUNIOR SUBORDINATED NOTES.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Junior Subordinated Notes of such series, provided
that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where reasonable indemnity would
not be adequate, and
<PAGE>
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series may, on behalf of the
Holders of all the Junior Subordinated Notes of such series, waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any)
or interest (including Additional Interest)
on any Junior Subordinated Note of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Junior Subordinated Note of such series
affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Junior
Subordinated Note by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
<PAGE>
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Junior Subordinated Notes of any series, or to any
suit instituted by any Holder of any Junior Subordinated Note for the
enforcement of the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note on or after the
Stated Maturity or Maturities expressed in such Junior Subordinated Note (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to Junior Subordinated Notes of any series,
(1) the Trustee undertakes to perform, with respect to Junior
Subordinated Notes of such series, such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Junior Subordinated Notes of such series, conclusively
<PAGE>
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Junior Subordinated
Notes of any series has occurred and is continuing, the Trustee shall exercise,
with respect to Junior Subordinated Notes of such series, such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in
good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Junior Subordinated Notes of any series relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to
the Junior Subordinated Notes of such series; and
<PAGE>
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Junior Subordinated Notes of any series, the Trustee shall
transmit by mail to all Holders of Junior Subordinated Notes of such series
entitled to receive reports pursuant to Section 313(c) of the Trust Indenture
Act, notice of all defaults hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including Additional Interest) on any Junior Subordinated Note of such series
or in the payment of any sinking fund installment with respect to Junior
Subordinated Notes of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Junior Subordinated Notes of such series; and provided, further, that
in the case of any default of the character specified in Section 501(5) with
respect to Junior Subordinated Notes of such series, no such notice to Holders
shall be given until at least 45 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Junior Subordinated Notes of such series.
<PAGE>
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and a resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Junior Subordinated Notes of any
series pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
<PAGE>
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Junior Subordinated
Notes of any series for which it is acting as Trustee unless either
(1) a Responsible Officer of the Trustee assigned to the Corporate
Trustee Administration Department and agency group of the
Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of the Event of
Default or (2) written notice of such Event of Default
shall have been given to the Trustee by the Company,
any other obligor on such Junior Subordinated Notes or
by any Holder of such Junior Subordinated Notes.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF JUNIOR
SUBORDINATED NOTES.
The recitals contained herein and in the Junior Subordinated Notes
(except the Trustee's certificates of authentication) shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Junior Subordinated
Notes. The Trustee or any Authenticating Agent shall not be accountable for the
use or application by the Company of Junior Subordinated Notes or the proceeds
thereof.
<PAGE>
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Trust Securities and shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of a Trust
Security to establish that such Person is such a holder. The Trustee may
conclusively rely on an Officers' Certificate as evidence that the holders of
the necessary percentage of liquidation preference of Trust Securities have
taken any action contemplated hereunder and shall have no duty to investigate
the truth or accuracy of any statement contained therein.
SECTION 605. MAY HOLD JUNIOR SUBORDINATED NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Junior Subordinated Notes and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence, willful misconduct or bad
faith; and
<PAGE>
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a lien prior to the Junior Subordinated
Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium, if any, or
interest, if any, on particular Junior Subordinated Notes.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire any conflicting interest, within
the meaning of the Trust Indenture Act, it shall, within 90 days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by federal or
state authority and qualified and eligible under this Article and otherwise
permitted by the Trust Indenture Act to act as Trustee under an Indenture
qualified under the Trust Indenture Act. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
<PAGE>
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Junior
Subordinated Notes of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Junior Subordinated Notes of such series.
(c) The Trustee may be removed at any time with respect to the Junior
Subordinated Notes of any series by Act of the Holders of a majority in
principal amount of the Outstanding Junior Subordinated Notes of such series
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder of a Junior
Subordinated Note who has been a Holder of a Junior Subordinated Note
for at least six months, or
<PAGE>
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee with respect to all Junior Subordinated Notes, or (ii) subject to
Section 514, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Junior
Subordinated Notes and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Junior Subordinated Notes of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Junior Subordinated Notes of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Junior Subordinated Notes of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Junior Subordinated
<PAGE>
Notes of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Junior Subordinated Notes of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding Junior
Subordinated Notes of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Junior Subordinated Notes
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Junior Subordinated
Notes of any series shall have been so appointed by the Company or the Holders
of Junior Subordinated Notes and accepted appointment in the manner required by
Section 611, any Holder of a Junior Subordinated Note who has been a bona fide
Holder of a Junior Subordinated Note of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Junior Subordinated Notes of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Junior Subordinated Notes of any series and
each appointment of a successor Trustee with respect to the Junior Subordinated
Notes of any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of such series of Junior Subordinated Notes as
their names and addresses appear in the Security Register.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Junior Subordinated Notes, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Junior Subordinated Notes of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to the
Junior Subordinated Notes of one or more series shall execute and deliver an
<PAGE>
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Junior Subordinated Notes of that or those series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Junior Subordinated Notes, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Junior
Subordinated Notes of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Junior Subordinated Notes
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Junior Subordinated Notes of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
<PAGE>
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Junior Subordinated Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Junior Subordinated Notes so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Junior Subordinated Notes.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Junior Subordinated Notes), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks 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
<PAGE>
Company (or any such obligor) for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the Company
(or any such obligor) arising from the making, drawing, negotiating or incurring
of the draft, bill of exchange, acceptance or obligation.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Junior Subordinated Notes remain
Outstanding the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Junior Subordinated Notes that shall be
authorized to act on behalf of the Trustee to authenticate Junior Subordinated
Notes of such series issued upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 304, and Junior Subordinated Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Junior Subordinated Notes by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
<PAGE>
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of Junior
Subordinated Notes, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
<PAGE>
The provisions of Sections 306, 604 and 605 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant
to this Section, the Junior Subordinated Notes of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Junior Subordinated Notes of the series
designated therein referred to in the within-mentioned Indenture.
As Trustee
By
As Authenticating Agent
By
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders of Junior Subordinated Notes as of
the preceding May 15 or November 15, as the case may be, and
<PAGE>
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of the most recent Regular Record
Date;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall comply with the obligations imposed on
it pursuant to Section 312 of the Trust Indenture Act.
(b) Every Holder of Junior Subordinated Notes, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Junior Subordinated Notes in accordance with Section 312(b) of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Junior Subordinated Notes pursuant to this
Indenture, if required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit a brief report dated as of such May 15 with respect to any of the
events specified in such Section 313(a) that may have occurred since the later
of the immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act at the times specified therein.
<PAGE>
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and (d) of
the Trust Indenture Act.
SECTION 704. REPORTS BY COMPANY.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) that the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934, as amended, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(3) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders of Junior Subordinated Notes, in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of this Section
704 as may be required by rules and regulations prescribed from time to
time by the Commission; and
<PAGE>
(4) notify the Trustee when and as the Junior Subordinated
Notes of any series become admitted to trading on any national
securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest (including Additional Interest) on all the Junior Subordinated
Notes and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transactions, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
<PAGE>
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease complies with this
Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Junior Subordinated
Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Junior Subordinated Notes, the
Company, when authorized by a Board Resolution, and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Junior Subordinated Notes; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Junior Subordinated Notes (and if
<PAGE>
such covenants are to be for the benefit of less than all series
of Junior Subordinated Notes, stating that such covenants are
expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture, to
change or eliminate any restrictions on the payment of principal
(or premium, if any) on Junior Subordinated Notes or to permit
the issuance of Junior Subordinated Notes in uncertificated form,
provided any such action shall not adversely affect the interests
of the Holders of Junior Subordinated Notes of any series in any
material respect; or
(5) to change or eliminate any of the provisions of this Indenture
with respect to any series of Junior Subordinated Notes
theretofore unissued; or
(6) to secure the Junior Subordinated Notes; or
(7) to establish the form or terms of Junior Subordinated Notes of
any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Junior
Subordinated Notes of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein,
or to make provisions with respect to matters or questions
arising under this indenture, provided such action shall not
adversely affect the interests of the Holders of Junior
Subordinated Notes of any series or holders of outstanding Trust
Securities in any material respect; or
<PAGE>
(10) subject to Section 903(a), to make any change in Article Thirteen
that would limit or terminate the benefits available to any
holder of Senior Indebtedness under such Article; or
(11) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification
of this Indenture under the Trust Indenture Act or under any
similar federal statute hereafter enacted, and to add to this
Indenture such other provisions as may be expressly required by
the Trust Indenture Act.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Junior Subordinated Notes of each series
affected by such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Junior Subordinated Notes of such series under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Junior Subordinated Note affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Junior Subordinated
Note, or reduce the principal amount thereof or the rate of interest
(including Additional Interest) thereon or any premium payable upon the
redemption thereof, or change the method of calculating the rate of
interest thereon, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Junior Subordinated Notes of any series, the consent of
whose Holders is required for any such supplemental indenture, or the
<PAGE>
consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 902, Section
513 or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Junior Subordinated Note affected thereby, provided,
however, that this clause shall not be deemed to require the consent of
any Holder of a Junior Subordinated Note with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8), or
(4) modify the provisions of this Indenture with respect to
the subordination of the Junior Subordinated Notes in a manner adverse
to such Holder.
SECTION 903. GENERAL PROVISIONS REGARDING SUPPLEMENTAL INDENTURE.
(a) A supplemental indenture entered into pursuant to Section 901 or
Section 902 may not make any change that adversely affects the rights under
Article Thirteen of any holder of Senior Indebtedness then outstanding unless
the holders of such Senior Indebtedness (or any group or representative thereof
authorized to give a consent) consent to such change.
(b) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Junior Subordinated Notes,
or which modifies the rights of the Holders of Junior Subordinated Notes of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Junior Subordinated
Notes of any other series.
(c) It shall not be necessary for any Act of Holders of Junior
Subordinated Notes under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act or
action shall approve the substance thereof.
<PAGE>
SECTION 904. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 905. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Junior Subordinated Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 907. REFERENCE IN JUNIOR SUBORDINATED NOTES TO SUPPLEMENTAL INDENTURES.
Junior Subordinated Notes of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Junior Subordinated Notes of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Junior
Subordinated Notes of such series.
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Junior Subordinated Notes that it will duly and punctually pay the principal of
(and premium, if any) and interest, including Additional Interest (subject to
the right of the Company to extend an interest payment period pursuant to the
terms of a supplemental indenture authorizing the Junior Subordinated Notes of
that series), on the Junior Subordinated Notes of that series in accordance with
the terms of the Junior Subordinated Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company or its Affiliate will maintain an office or agency where
Junior Subordinated Notes of each series may be presented or surrendered for
payment, where Junior Subordinated Notes of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Junior Subordinated Notes of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Junior Subordinated Notes or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Junior Subordinated Notes of that series may be made and notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive such
respective presentations, surrenders, notices and demands.
<PAGE>
The Company may also from time to time designate one or more other
offices or agencies where the Junior Subordinated Notes of one or more series
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR JUNIOR SUBORDINATED NOTES PAYMENTS TO BE HELD IN TRUST.
If the Company or one of its Affiliates shall at any time act as its
own Paying Agent with respect to any series of Junior Subordinated Notes, it
will, on or before each due date of the principal of (and premium, if any) or
interest (including Additional Interest, if any) on any of the Junior
Subordinated Notes of that series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest (including Additional Interest, if any) so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
series of Junior Subordinated Notes, it will, prior to each due date of the
principal of (and premium, if any) or interest (including Additional Interest,
if any) on any Junior Subordinated Notes of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest
(including Additional Interest, if any) so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest (including Additional Interest, if any), and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Junior
Subordinated Notes other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will:
<PAGE>
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest (including Additional Interest, if
any) on Junior Subordinated Notes of that series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Junior Subordinated Notes of that series) in
the making of any payment of principal of (and premium, if any) or
interest (including Additional Interest, if any) on the Junior
Subordinated Notes of that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest (including Additional Interest, if any) on any Junior
Subordinated Note of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest (including Additional Interest, if
any) has become due and payable shall be paid to the Company on Company Request,
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Junior Subordinated Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper of general circulation in New York City notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
<PAGE>
SECTION 1004. ADDITIONAL INTEREST.
If the Junior Subordinated Notes of a series provide for the payment of
Additional Interest (for purposes of this Section 1004, as defined in clause (i)
of the definition thereof) to the Holders of such Junior Subordinated Notes,
then the Company shall pay to each Holder of such Securities the Additional
Interest as provided therein.
Except as otherwise provided in or pursuant to this Indenture, if the
Junior Subordinated Notes of a series provide for the payment of Additional
Interest, at least 10 days prior to the first Interest Payment Date with respect
to that series of Junior Subordinated Notes upon which such Additional Interest
shall be payable (or, if the Junior Subordinated Notes of that series shall not
bear interest prior to Maturity, the first day on which a payment of principal
and any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's Paying Agents, if other than
the Trustee or the Company, with an Officers' Certificate stating the amount of
the Additional Interest payable per minimum authorized denomination of such
Junior Subordinated Notes (and, if such Additional Interest is payable only with
respect to particular Junior Subordinated Notes, then the names of the Holders
of such Junior Subordinated Notes).
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
<PAGE>
existence and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company, and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. LIMITATIONS ON DIVIDEND AND CERTAIN OTHER PAYMENTS.
The Company covenants, for the benefit of the Holders of each series of
Junior Subordinated Notes, that, subject to the next succeeding sentence, (a)
the Company shall not declare or pay any dividend or make any distributions with
respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Company which
rank pari passu with or junior to the Junior Subordinated Notes, (a) if at such
time the Company shall have given notice of its election to extend an interest
payment period for such series of Junior Subordinated Notes and such extension
shall be continuing, (b) if at such time the Company shall be in default with
respect to its payment or other obligations under the Guarantee with respect to
the series of Trust Securities, if any, related to such series of Junior
Subordinated Notes, or (c) if at such time an Event of Default hereunder with
respect to such series of Junior Subordinated Notes shall have occurred and be
continuing. The preceding sentence, however, shall not restrict (i) any of the
actions described in the preceding sentence resulting from any reclassification
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock, or (ii) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged.
SECTION 1007. STATEMENT AS TO COMPLIANCE.
(a) The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement, which need not comply with Section
<PAGE>
102, signed by the principal executive officer, the principal financial officer
or the principal accounting officer of the Company, as to his or her knowledge
of the Company's compliance with all conditions and covenants under this
Indenture. For purposes of this Section 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) The Company shall deliver to the Trustee, no later than the
Business Day on which the event occurs, written notice of the liquidation,
dissolution or winding-up of a Securities Trust if such liquidation, dissolution
or winding-up would occur earlier than the Stated Maturity of the Junior
Subordinated Notes owned by such Securities Trust.
(c) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or lapse
of time or both would become an Event of Default pursuant to Section 501.
SECTION 1008. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 and 1006 with respect to
the Junior Subordinated Notes of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Junior Subordinated Notes of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
SECTION 1009. COVENANTS REGARDING TRUST.
For so long as the Trust Securities remain outstanding, the Company
covenants (i) to directly or indirectly maintain 100% ownership of the Common
Securities (as defined in the Trust Agreement relating to such securities) of
the Trust; provided, however, that any permitted successor of the Company
<PAGE>
hereunder may succeed to the Company's ownership of such Common Securities, and
(ii) to use its reasonable efforts to cause the Trust (a) to remain a statutory
business trust, except in connection with the distribution of Junior
Subordinated Notes to the holders of Trust Securities in liquidation of the
Trust, the redemption of all of the Trust Securities of the Trust, or certain
mergers, consolidations or amalgamations, each as permitted under the Trust
Agreement, and (b) to otherwise continue to be classified as a grantor trust for
United States federal income tax purposes.
ARTICLE ELEVEN
REDEMPTION OF JUNIOR SUBORDINATED NOTES
SECTION 1101. APPLICABILITY OF ARTICLE.
Junior Subordinated Notes of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Junior
Subordinated Notes of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Junior Subordinated Notes
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of all of the Junior Subordinated Notes of any series,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of such Redemption Date. In case of any redemption at the election of
the Company of less than all the Junior Subordinated Notes of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee and the
related Property Trustee), notify the Trustee and the related Property Trustee
in writing of such Redemption Date and of the principal amount of Junior
Subordinated Notes of such series to be redeemed. In the case of any redemption
<PAGE>
of Junior Subordinated Notes (i) prior to the expiration of any restriction on
such redemption provided in the terms of such Junior Subordinated Notes or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Junior
Subordinated Notes, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF JUNIOR SUBORDINATED NOTES TO BE REDEEMED.
If the Junior Subordinated Notes are registered in the name of only one
Holder, any partial redemptions shall be pro rata. If the Junior Subordinated
Notes are held in definitive form by more than one Holder and if less than all
the Junior Subordinated Notes of any series are to be redeemed, the particular
Junior Subordinated Notes to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Junior
Subordinated Notes of such series not previously called for redemption, by lot
or other such method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Junior Subordinated Notes of that series or any
integral multiple thereof) of the principal amount of Junior Subordinated Notes
of such series of a denomination larger than the minimum authorized denomination
for Junior Subordinated Notes of that series.
The Trustee shall promptly notify the Company in writing of the Junior
Subordinated Notes selected for redemption and, in the case of any Junior
Subordinated Notes selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Junior Subordinated Notes
shall relate, in the case of any Junior Subordinated Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of such Junior
Subordinated Notes which has been or is to be redeemed.
<PAGE>
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Junior Subordinated Notes to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Junior Subordinated Notes
of any series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amounts) of the particular Junior
Subordinated Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Junior Subordinated Note to be
redeemed and, if applicable, that interest thereon will cease to accrue
on and after said date,
(5) the place or places where such Junior Subordinated
Notes are to be surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Junior Subordinated Notes to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
Except as otherwise provided in a supplemental indenture pursuant to
Section 301, prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or its Affiliate is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of and accrued
interest, if any, on all the Junior Subordinated Notes which are to be redeemed
on that date.
<PAGE>
SECTION 1106. JUNIOR SUBORDINATED NOTES PAYABLE ON REDEMPTION DATE
Notice of redemption having been given as aforesaid, the Junior
Subordinated Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified together with any accrued
interest (including any Additional Interest) thereon, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Junior Subordinated Notes shall cease to bear
interest. Upon surrender of any such Junior Subordinated Note for redemption in
accordance with such notice, such Junior Subordinated Note shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, and any
Additional Interest to the Redemption Date; provided, however, that, except as
otherwise provided in a supplemental indenture pursuant to Section 301,
installments of interest on Junior Subordinated Notes whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Junior Subordinated Notes, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 305.
If any Junior Subordinated Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Junior Subordinated Note.
SECTION 1107. JUNIOR SUBORDINATED NOTES REDEEMED IN PART.
Any Junior Subordinated Note that is to be redeemed only in
part shall be surrendered at an office or agency of the Company therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
<PAGE>
Holder of such Junior Subordinated Note without service charge, a new Junior
Subordinated Note of the same series, Stated Maturity and original issue date of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Junior Subordinated Note so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Junior Subordinated Notes of a series except as otherwise
specified as contemplated by Section 301 for Junior Subordinated Notes of such
series.
The minimum amount of any sinking fund payment provided for by the
terms of Junior Subordinated Notes of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Junior Subordinated Notes of any series is
herein referred to as an "optional sinking fund payment". If provided for by the
terms of Junior Subordinated Notes of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Junior Subordinated
Notes of any series as provided for by the terms of Junior Subordinated Notes of
such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH JUNIOR SUBORDINATED
NOTES.
The Company (1) may deliver Outstanding Junior Subordinated Notes of a
series (other than any previously called for redemption), and (2) may apply as a
credit Junior Subordinated Notes of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Junior Subordinated
Notes or through the application of permitted optional sinking fund payments
pursuant to the terms of such Junior Subordinated Notes, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Junior Subordinated Notes of such series required to be made pursuant to the
<PAGE>
terms of such Junior Subordinated Notes as provided for by the terms of such
series; provided that such Junior Subordinated Notes have not been previously so
credited. Such Junior Subordinated Notes shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Junior
Subordinated Notes for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF JUNIOR SUBORDINATED NOTES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Junior Subordinated Notes, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Junior
Subordinated Notes of that series pursuant to Section 1202 and stating the basis
for such credit and that such Junior Subordinated Notes have not previously been
so credited and will also deliver to the Trustee any Junior Subordinated Notes
to be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Junior Subordinated Notes to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Junior Subordinated Notes shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. JUNIOR SUBORDINATED NOTES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Junior
Subordinated Note, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article
(subject to Article Four), the payment of the principal of, premium, if any, and
interest (including Additional Interest) on each and all of the Junior
Subordinated Notes are hereby expressly made subordinate and subject in right of
payment to the prior payment in full in cash of all Senior Indebtedness.
<PAGE>
SECTION 1302. PAYMENT OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding-up, reorganization, assignment for
the benefit of creditors, marshalling of assets or liabilities or any
bankruptcy, insolvency or similar proceedings of the Company (each such event,
if any, referred to as a "Proceeding"), the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due on or to become due on
or in respect of all Senior Indebtedness (including any interest accruing
thereon after the commencement of any such Proceeding, whether or not allowed as
a claim against the Company in such Proceeding), before the Holders of the
Junior Subordinated Notes are entitled to receive any payment or distribution
(excluding any payment described in Section 1309) on account of the principal
of, premium, if any, or interest (including Additional Interest, if any) on the
Junior Subordinated Notes or on account of any purchase, redemption or other
acquisition of Junior Subordinated Notes by the Company (all such payments,
distributions, purchases, redemptions and acquisitions, whether or not in
connection with a Proceeding, herein referred to, individually and collectively,
as a "Payment").
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing shall be received by the
Trustee or the Holders of the Junior Subordinated Notes before all Senior
Indebtedness is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or to the trustee or trustees under any indenture pursuant to which
any instruments evidencing any such Senior Indebtedness may have been issued, as
their respective interests may appear, as calculated by the Company, for
<PAGE>
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness.
For purposes of this Article, "assets of the Company" shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to
the extent provided in this Article with respect to the Junior Subordinated
Notes to the payment of all Senior Indebtedness that may at the time be
outstanding, provided, however, that (i) the Senior Indebtedness is assumed by
the new corporation, if any, resulting from any such reorganization or
readjustment, and (ii) the rights of the holders of the Senior Indebtedness are
not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Eight hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 1302 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof. Nothing in Section 1303 or in this Section 1302 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 607.
SECTION 1303. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT
No payment of any principal, including redemption payments, if any,
premium, if any, or interest on (including Additional Interest) the Junior
Subordinated Notes shall be made if
(i) any Senior Indebtedness is not paid when due whether at
the stated maturity of any such payment or by call for redemption and
any applicable grace period with respect to such default has ended,
with such default remaining uncured and such default has not been
waived or otherwise ceased to exist;
<PAGE>
(ii) the maturity of any Senior Indebtedness has been
accelerated because of a default; or
(iii) notice has been given of the exercise of an option to
require repayment, mandatory payment or prepayment or otherwise.
In the event that, notwithstanding the foregoing, the Company shall
make any Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, then in such event such Payment shall be held in
trust and paid over and delivered forthwith to the holders of the Senior
Indebtedness.
The provisions of this Section shall not apply to any Payment with
respect to which Section 1302 hereof would be applicable.
SECTION 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Junior Subordinated Notes shall prevent the Company, at any time
except during the pendency of any Proceeding referred to in Section 1302 hereof
or under the conditions described in Section 1303 hereof, from making Payments.
Nothing in this Article shall have any effect on the right of the Holders or the
Trustee to accelerate the maturity of the Junior Subordinated Notes upon the
occurrence of an Event of Default, but, in that event, no payment may be made in
violation of the provisions of this Article with respect to the Junior
Subordinated Notes. If payment of the Junior Subordinated Notes is accelerated
because of an Event of Default, the Company shall promptly notify the holders of
the Senior Indebtedness (or their representatives) of such acceleration.
SECTION 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
The rights of the Holders of the Junior Subordinated Notes shall be
subrogated to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
<PAGE>
Senior Indebtedness until the principal of, premium, if any, and interest
(including Additional Interest) on the Junior Subordinated Notes shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Junior Subordinated Notes or the Trustee would be entitled
except for the provisions of this Article, and no payments pursuant to the
provisions of this Article to the holders of Senior Indebtedness by Holders of
the Junior Subordinated Notes or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Junior Subordinated Notes, be deemed to be a payment or distribution by the
Company to or on account of the Senior Indebtedness.
SECTION 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Junior Subordinated Notes is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Junior Subordinated Notes,
the obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all other general obligations of the Company),
to pay to the Holders of the Junior Subordinated Notes the principal of,
premium, if any, and interest (including Additional Interest) on the Junior
Subordinated Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Junior Subordinated Notes and creditors of the
Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Junior Subordinated Note from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder or, under the conditions specified
in Section 1303, to prevent any payment prohibited by such Section or enforce
their rights pursuant to the penultimate paragraph in Section 1303.
<PAGE>
SECTION 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Junior Subordinated Note by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved.
SECTION 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination provisions provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or any failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Junior
Subordinated Notes, without incurring responsibility to the Holders of the
Junior Subordinated Notes and without impairing or releasing the subordination
provided in this Article or the obligations hereunder of the Holders of the
Junior Subordinated Notes to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or
otherwise amend or supplement in any manner Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) permit the Company to borrow, repay and then reborrow any
<PAGE>
or all of the Senior Indebtedness; (iii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iv) release any Person liable in any manner for the collection of
Senior Indebtedness; (v) exercise or refrain from exercising any rights against
the Company and any other Person; or (vi) apply any sums received by them to
Senior Indebtedness.
SECTION 1309. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments
from money held in trust by the Trustee under Article Four for the payment of
the principal of, premium, if any, and interest (including Additional Interest)
on any series of Junior Subordinated Notes shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article and no Holder of such Junior Subordinated Notes nor the
Trustee shall be obligated to pay over such amount to the Company, any holder of
Senior Indebtedness (or a designated representative of such holder) or any other
creditor of the Company.
SECTION 1310. NOTICE TO THE TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Junior
Subordinated Notes pursuant to the provisions of this Article. Notwithstanding
the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Junior Subordinated Notes pursuant to the provisions of this
Article unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1310 at
<PAGE>
least two Business Days prior to the date upon which, by the terms hereof, any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Junior
Subordinated Note), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness or a trustee on behalf of any such holder or holders. In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 1311. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601 hereof,
and the Holders of the Junior Subordinated Notes shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Junior Subordinated Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article, provided that the foregoing shall apply only if such court has
been apprised of the provisions of this Article.
<PAGE>
SECTION 1312. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the provisions of Section 601, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Junior Subordinated Notes or to the Company or to
any other Person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 1313. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607 hereof.
SECTION 1314. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee (or the
Company or an Affiliate of the Company) shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee.
<PAGE>
SECTION 1315. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS.
Each Holder by accepting a Junior Subordinated Note acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Junior Subordinated Notes, to acquire and continue to hold, or
to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or to continue to hold, such
Senior Indebtedness.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. NO RECOURSE AGAINST OTHERS.
An incorporator or any past, present or future director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Junior Subordinated Notes or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Junior Subordinated Note, each
Holder shall waive and release all such liability. Such waiver and release shall
be part of the consideration for the issue of the Junior Subordinated Notes.
SECTION 1402. SET-OFF.
Notwithstanding anything to the contrary in this Indenture or in any
Junior Subordinated Note of any series, prior to the dissolution of any
Securities Trust that has issued Trust Securities related to a series of Junior
Subordinated Notes, the Company shall have the right to set-off and apply
against any payment it is otherwise required to make hereunder or thereunder
with respect to the principal of or interest (including any Additional Interest)
<PAGE>
on the Junior Subordinated Notes of such series with and to the extent the
Company has theretofore made, or is concurrently on the date of such payment
making, a payment with respect to the Trust Securities of the series related to
such series of Junior Subordinated Notes under the applicable Guarantee.
Contemporaneously with, or as promptly as practicable after, any such payment
under such Guarantee, the Company shall deliver to the Trustee an Officers'
Certificate (upon which the Trustee shall be entitled to rely conclusively
without any requirement to investigate the facts contained therein) to the
effect that such payment has been made and that, as a result of such payment,
the corresponding payment under the related series of Junior Subordinated Notes
has been set-off in accordance with this Section 1402.
SECTION 1403. ASSIGNMENT; BINDING EFFECT.
The Company shall have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
subsidiary of the Company, provided that, in the event of any such assignment,
the Company shall remain primarily liable for the performance of all such
obligations. This Indenture may also be assigned by the Company in connection
with a transaction described in Article Eight. This Indenture shall be binding
upon and inure to the benefit of the Company, the Trustee, the Holders, any
Security Registrar, Paying Agent, and Authenticating Agent and, to the extent
specifically set forth herein, the holders of Senior Indebtedness and their
respective successors and assigns. The provisions of clause (2) of Section 508
and Section 1006 are for the benefit of the holders of the series of Trust
Securities referred to therein and, prior to the dissolution of the related
Securities Trust, may be enforced by such holders. A holder of a Trust Security
shall not have the right, as such a holder, to enforce any other provision of
this Indenture.
SECTION 1404. ADDITIONAL INTEREST.
Whenever there is mentioned in this Indenture, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Junior Subordinated Note of any series, such mention shall be deemed to
include mention of the payment of Additional Interest provided for by the terms
of such series of Junior Subordinated Notes to the extent that, in such context,
Additional Interest is, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Interest in any
provisions hereof shall not be construed as excluding Additional Interest in
those provisions hereof where such express mention is not made.
<PAGE>
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GULF POWER COMPANY
By
Attest:
THE CHASE MANHATTAN BANK
Trustee
By
Attest:
<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 30th day of January, 1997, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________ of Gulf Power Company, one of the corporations
described herein and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
Notary Public
[SEAL]
My Commission Expires:
STATE OF NEW YORK )
) SS.:
CITY OF NEW YORK )
On the 30th day of January, 1997, before me personally came R.
Lorenzen, to me known, who, being by me duly sworn, did depose and say that he
is a Senior Trust Officer of The Chase Manhattan Bank, one of the corporations
described herein and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
Notary Public
[SEAL]
My Commission Expires:
Exhibit 4.2
GULF POWER COMPANY
TO
THE CHASE MANHATTTAN BANK,
TRUSTEE.
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 1, 1997
$41,237,125
SERIES A 7.625% JUNIOR SUBORDINATED NOTES
DUE DECEMBER 31, 2036
<PAGE>
TABLE OF CONTENTS1
<TABLE>
<CAPTION>
<S> <C>
Page
ARTICLE 1.........................................................................................................1
SECTION 101. Establishment........................................................................................1
SECTION 102. Definitions..........................................................................................2
SECTION 103. Payment of Principal and Interest....................................................................3
SECTION 104. Deferral of Interest Payments........................................................................4
SECTION 105. Denominations........................................................................................6
SECTION 106. Global Securities....................................................................................6
SECTION 107. Transfer.............................................................................................6
SECTION 108. Redemption...........................................................................................7
ARTICLE 2.........................................................................................................7
SECTION 201. Recitals by Company..................................................................................7
SECTION 202. Ratification and Incorporation of Original Indenture.................................................8
SECTION 203. Executed in Counterparts.............................................................................8
SECTION 204. Listing of Notes.....................................................................................8
</TABLE>
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
<PAGE>
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 1st day of
January, 1997, by and between GULF POWER COMPANY, a Maine corporation, 500
Bayfront Parkway, Pensacola, Florida 32501 (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, 450 West 33rd Street, New York,
New York 10001 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a
Subordinated Note Indenture, dated as of January 1, 1997 (the "Original
Indenture") with The Chase Manhattan Bank;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Junior
Subordinated Notes may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture
a new series of Junior Subordinated Notes;
WHEREAS, additional Junior Subordinated Notes of other series
hereafter established, except as may be limited in the Original Indenture as at
the time supplemented and modified, may be issued from time to time pursuant to
the Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution,
delivery and recording of this First Supplemental Indenture and to make it a
valid and binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
<PAGE>
ARTICLE 1
Series A Junior Subordinated Notes
SECTION 101. Establishment. There is hereby established a new series of
Junior Subordinated Notes to be issued under the Indenture, to be designated as
the Company's Series A 7.625% Junior Subordinated Notes due December 31, 2036
(the "Series A Notes").
There are to be authenticated and delivered $41,237,125 principal
amount of Series A Notes, and no further Series A Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series A Notes shall be issued in definitive fully
registered form.
The Series A Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series A Notes shall
initially be evidenced by one certificate issued to the Property Trustee of Gulf
Power Capital Trust I.
The form of the Trustee's Certificate of Authentication for the Series
A Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series A Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 102. Definitions. The following defined terms used herein
shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Deferred Interest" means each installment of interest not paid during
any Extension Period, and interest thereon. Deferred installments of interest
shall bear interest at the rate of 7.625% per annum from the applicable Interest
Payment Date to the date of payment, compounded quarterly.
<PAGE>
"Extension Period" means any period during which the Company has
elected to defer payments of interest, which deferral may be for a period of up
to twenty (20) consecutive quarters.
"Interest Payment Dates" means March 31, June 30, September 30, and
December 31 of each year.
"Investment Company Act Event" means that the Company shall have
received an Opinion of Counsel to the effect that, as a result of the occurrence
of a change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Securities Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended,
which change becomes effective on or after the Original Issue Date.
"Original Issue Date" means January 31, 1997.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Securities Trust" means Gulf Power Capital Trust I, a statutory
business trust formed by the Company under Delaware law to issue Trust
Securities, the proceeds of which will be used to purchase Series A Notes.
"Special Event" means an Investment Company Act Event or Tax Event.
"Stated Maturity" means December 31, 2036.
"Tax Event" means that the Company shall have received an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, laws
(or any 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 Securities Trust would be
subject to United States federal income tax with respect to income accrued or
received on the Series A Notes, (ii) interest payable to the Securities Trust on
the Series A Notes would not be deductible by the Company for United States
federal income tax purposes, or (iii) the Securities Trust would be subject to
more than a de minimis amount of other taxes, duties or other governmental
charges, which change or amendment becomes effective on or after the Original
Issue Date.
<PAGE>
SECTION 103. Payment of Principal and Interest. The unpaid principal
amount of the Series A Notes shall bear interest at the rate of 7.625% per annum
until paid or duly provided for. Interest shall be paid quarterly in arrears on
each Interest Payment Date to the Person in whose name the Series A Notes are
registered on the Regular Record Date for such Interest Payment Date, provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein will be paid to the Person to whom principal is payable.
So long as an Extension Period is not occurring, any such interest that is not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holders on such Regular Record Date and may either be paid to the Person or
Persons in whose name the Series A Notes are registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee ("Special Record Date"), notice whereof shall be given to Holders
of the Series A Notes not less than ten (10) days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which the Series A Notes
shall be listed, and upon such notice as may be required by any such exchange,
all as more fully provided in the Original Indenture.
Payments of interest on the Series A Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series A Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
<PAGE>
Payment of the principal and interest (including Additional Interest,
if any) due at the Stated Maturity or earlier redemption of the Series A Notes
shall be made upon surrender of the Series A Notes at the Corporate Trust Office
of the Trustee, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Payments of interest (including interest on any Interest Payment Date) will be
made, subject to such surrender where applicable, at the option of the Company,
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
The Company shall pay, as additional interest on the Series A Notes,
when due to the United States or any other taxing authority, the amounts set
forth in clause (i) of the definition of Additional Interest.
SECTION 104. Deferral of Interest Payments. The Company has the right
at any time and from time to time to extend the interest payment period of the
Series A Notes for up to twenty (20) consecutive quarters (each, an "Extension
Period"), but not beyond the Stated Maturity. Notwithstanding the foregoing, the
Company has no right to extend its obligation to pay such amounts as are defined
in clause (i) of the definition of Additional Interest. Prior to the termination
of any such Extension Period, the Company may further extend the interest
payment period, provided that such Extension Period, together with all such
previous and further extensions of that Extension Period, shall not exceed
twenty (20) consecutive quarters. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new Extension Period,
subject to the above limitations and requirements.
<PAGE>
Upon the termination of any Extension Period, which termination shall
be on an Interest Payment Date, the Company shall pay all Deferred Interest on
the next succeeding Interest Payment Date to the Person in whose name the Series
A Notes are registered on the Regular Record Date for such Interest Payment
Date, provided that Deferred Interest payable at Stated Maturity or on any
Redemption Date will be paid to the Person to whom principal is payable.
If the Company shall have given notice of its election to select any
Extension Period, the Company shall not (i) declare or pay any dividend or
distribution on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, or make any guarantee payments with
respect to the foregoing and (ii) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees other than its guarantee of the Preferred Securities
issued by the Securities Trust) issued by the Company that rank pari passu with
or junior to the Series A Notes.
The Company shall give the Holder or Holders of the Series A Notes and
the Trustee notice, as provided in Sections 105 and 106, respectively, of the
Original Indenture, of its selection or extension of an Extension Period at
least one Business Day prior to the earlier of (i) the Regular Record Date
relating to the Interest Payment Date on which the Extension Period is to
commence or relating to the Interest Payment Date on which an Extension Period
that is being extended would otherwise terminate, or (ii) the date the Company
or Securities Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization of the record date or the date
such distributions are payable. The Company shall cause the Securities Trust to
give notice of the Company's selection of such Extension Period to Holders of
the Trust Securities. The month in which any notice is given pursuant to the
immediately preceding sentence of this Section shall constitute the first month
of the first quarter of the twenty (20) quarters, which comprise the Maximum
Extension Period.
At any time any of the foregoing notices are given to the Trustee, the
Company shall give to the Paying Agent for the Series A Notes such information
as said Paying Agent shall reasonably require in order to fulfill its tax
reporting obligations with respect to such Series A Notes.
<PAGE>
SECTION 105. Denominations. The Series A Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 106. Global Securities. If the Series A Notes are distributed
to Holders of the Trust Securities of the Securities Trust in liquidation of
such Holders' interests therein, the Series A Notes will be issued in the form
of one or more Global Securities registered in the name of the Depositary (which
shall be The Depository Trust Company) or its nominee. Except under the limited
circumstances described below, Series A Notes represented by the Global Security
will not be exchangeable for, and will not otherwise be issuable as, Series A
Notes in definitive form. The Global Securities described above may not be
transferred except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series A Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series A Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iii) there shall have occurred an Event of Default with respect to the Series A
Notes. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series A Notes registered in such names as
the Depositary shall direct.
<PAGE>
SECTION 107. Transfer. No service charge will be made for any transfer
or exchange of Series A Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (a) to issue, transfer or exchange
any Series A Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Series A Notes to be called for redemption, and ending at the
close of business on the day of the mailing, or (b) to transfer or exchange any
Series A Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series A Note redeemed in part.
SECTION 108. Redemption. The Series A Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, at any time or from time to time on or after January 31, 2002, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including Additional Interest, if any, to the
Redemption Date; provided, however, that if a redemption in part shall result in
the delisting of the Preferred Securities issued by the Securities Trust, the
Company may only redeem the Series A Notes in whole. In addition, upon the
occurrence of a Special Event at any time, the Company may, within ninety (90)
days following the occurrence thereof and subject to the terms and conditions of
the Indenture, elect to redeem the Series A Notes, in whole, at a price equal to
100% of the principal amount to be redeemed plus any accrued but unpaid interest
(including Additional Interest) to the Redemption Date.
In the event of redemption of the Series A Notes in part only, a new
Series A Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
<PAGE>
The Series A Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series A Notes shall, with
respect to the principal thereof, be divisible by $25.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this First
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series A Notes and of this First Supplemental Indenture
as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture, as heretofore supplemented and modified,
and this First Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
SECTION 203. Executed in Counterparts. This First Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
SECTION 204. Listing of Notes. If the Series A Notes are to be issued
as a Global Security in connection with the distribution of the Series A Notes
to the Holders of the Preferred Securities issued by the Securities Trust, the
Company will use its best efforts to list such Series A Notes on the New York
Stock Exchange or any such other exchange on which such Preferred Securities are
then listed and traded.
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
ATTEST: GULF POWER COMPANY
By: By:
Assistant Secretary
ATTEST: THE CHASE MANHATTAN BANK
By: By:
<PAGE>
EXHIBIT A
FORM OF SERIES A NOTE
<PAGE>
NO. 1 CUSIP NO. 402 479 BE8
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE
PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
GULF POWER COMPANY
SERIES A 7.625% JUNIOR SUBORDINATED NOTE
DUE DECEMBER 31, 2036
Principal Amount: $_________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: January 31, 1997
Stated Maturity: December 31, 2036
Interest Payment Dates: March 31, June 30, September 30 and December 31
Interest Rate: 7.625% per annum
Authorized Denomination: $25
Initial Redemption Date: January 31, 2002
Gulf Power Company, a Maine corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_____________________________________, or registered assigns, the principal sum
of _________ DOLLARS ($__________) on the Stated Maturity shown above (or upon
earlier redemption), and to pay interest thereon from the Original Issue Date
shown above, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly in arrears on each Interest Payment
Date as specified above, commencing on the Interest Payment Date next succeeding
the Original Issue Date shown above and on the Stated Maturity (or upon earlier
redemption) at the rate per annum shown above until the principal hereof is paid
or made available for payment and on any overdue principal and on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (other than an Interest Payment Date
that is the Stated Maturity or on a Redemption Date) will, as provided in such
Indenture, be paid to the Person in whose name this Note (the "Note") is
registered at the close of business on the Regular Record Date as specified
above next preceding such Interest Payment Date, provided that any interest
<PAGE>
payable at Stated Maturity or on any Redemption Date will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes of this series shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee or the principal corporate trust office of the Property Trustee of
the Securities Trust are closed for business.
<PAGE>
The Company shall have the right at any time and from time to time
during the term of this Note to extend the interest payment period of such Note
for up to 20 consecutive quarters but not beyond the Stated Maturity of this
Note (each, an "Extension Period"), during which periods unpaid interest
(together with interest thereon) will compound quarterly at the Interest Rate
("Deferred Interest"). Upon the termination of each Extension Period, which
shall be an Interest Payment Date, the Company shall pay all Deferred Interest
on the next succeeding Interest Payment Date to the Person in whose name this
Note is registered at the close of business on the Regular Record Date for such
Interest Payment Date, provided that any Deferred Interest payable at Stated
Maturity or on any Redemption Date will be paid to the Person to whom principal
is payable. Prior to the termination of any such Extension Period, the Company
may extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions thereof shall not exceed
20 consecutive quarters. Upon the termination of any such Extension Period, and
the payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to the above
requirements. If the Company shall have given notice of its election to select
any Extension Period, the Company shall not (i) declare or pay any dividend or
distribution on, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, or make any guarantee payments with
respect to the foregoing and (ii) make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees other than its guarantee of the Preferred Securities
issued by the Securities Trust) issued by the Company that rank pari passu with
or junior to this Note. The Company shall give the Holder of this Note and the
Trustee notice of its selection or extension of an Extension Period at least one
Business Day prior to the earlier of (i) the Regular Record Date relating to the
Interest Payment Date on which the Extension Period is to commence or relating
to the Interest Payment Date on which an Extension Period that is being extended
would otherwise terminate or (ii) the date the Company or Securities Trust is
required to give notice to the New York Stock Exchange or other applicable
self-regulatory organization of the record date or the date distributions are
payable.
<PAGE>
The Company also shall be obligated to pay when due and without
extension all additional amounts as may be required so that the net amount
received and retained by the Holder of this Note (if the Holder is a Securities
Trust) after paying taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority will not be less than the amounts such Holder would
have received had no such taxes, duties, assessments, or other governmental
charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
A Notes shall be made upon surrender of the Series A Notes at the Corporate
Trust Office of the Trustee, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least 16 days prior to the
date for payment by the Person entitled thereto.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture), and this Note
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Note, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
<PAGE>
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ________ __, 19__.
GULF POWER COMPANY
By:
Attest:
Assistant Secretary
{Seal of GULF POWER COMPANY appears here}
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
<PAGE>
(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior Subordinated
Notes of the Company (the "Notes"), issued and issuable in one or more series
under a Subordinated Note Indenture, dated as of January 1, 1997, as
supplemented (the "Indenture"), between the Company and The Chase Manhattan
Bank, Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures incidental thereto
reference is hereby made for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes issued thereunder and of the terms upon which said Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof as Series A 7.625% Junior Subordinated Notes due
December 31, 2036 (the "Series A Notes") in the aggregate principal amount of up
to $41,237,125. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after January 31, 2002
at the option of the Company, without premium or penalty, in whole or in part,
at a Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including any Additional Interest, if any, to the
Redemption Date. Upon the occurrence of a Special Event (as defined below) at
any time, the Company may, within 90 days following the occurrence thereof and
subject to the terms and conditions of the Indenture, redeem this Note without
premium or penalty, in whole, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. A Special Event may be a
Tax Event or an Investment Company Act Event. "Tax Event" means that the Company
shall have received an Opinion of Counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, laws (or any 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)
<PAGE>
the related Securities Trust would be subject to United States federal income
tax with respect to income accrued or received on the Series A Notes, (ii)
interest payable to the related Securities Trust would not be deductible by the
Company for United States federal income tax purposes, or (iii) the related
Securities Trust would be subject to more than a de minimis amount of other
taxes, duties or other governmental charges, which change or amendment becomes
effective on or after the Original Issue Date. "Investment Company Act Event"
means that the Company shall have received an Opinion of Counsel to the effect
that, as a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the related Securities Trust is or will be
considered an "investment company" which is required to be registered under the
Investment Company Act of 1940, as amended, which change becomes effective on or
after the Original Issue Date.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof. The Notes will not
have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
<PAGE>
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<PAGE>
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
ommon (Cust) (Minor)
TEN ENT- as tenants by the
ntireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s)
unto (please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular without alteration or
enlargement, or any change whatever.
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
Exhibit 4.5
GULF POWER CAPITAL TRUST I
AMENDED AND RESTATED
TRUST AGREEMENT
among
GULF POWER COMPANY, as Depositor,
THE CHASE MANHATTAN BANK, as Property Trustee,
CHASE MANHATTAN BANK DELAWARE, as Delaware Trustee,
and
LINDA MALONE and WAYNE BOSTON,
as Administrative Trustees
Dated as of January 1, 1997
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GULF POWER CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
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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.
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TABLE OF CONTENTS
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Page
ARTICLE I.........................................................................................................2
Section 1.01 Definitions..........................................................................................2
ARTICLE II.......................................................................................................11
Section 2.01 Name................................................................................................11
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...........12
Section 2.06 Declaration of Trust................................................................................12
Section 2.07 Authorization to Enter into Certain Transactions....................................................12
Section 2.08 Assets of Trust.....................................................................................18
Section 2.09 Title to Trust Property.............................................................................18
Section 2.10 Mergers and Consolidations of the Trust.............................................................18
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ARTICLE III......................................................................................................20
Section 3.01 Payment Account.....................................................................................20
ARTICLE IV.......................................................................................................20
Section 4.01 Distributions.......................................................................................20
Section 4.02 Redemption..........................................................................................21
Section 4.03 Subordination of Common Securities..................................................................24
Section 4.04 Payment Procedures..................................................................................24
Section 4.05 Tax Returns and Reports.............................................................................25
ARTICLE V........................................................................................................25
Section 5.01 Initial Ownership...................................................................................25
Section 5.02 The Trust Securities Certificates...................................................................25
Section 5.03 Authentication of Trust Securities Certificates.....................................................25
Section 5.04 Registration of Transfer and Exchange of Preferred Securities Certificates..........................26
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..................................27
Section 5.06 Persons Deemed Securityholders......................................................................27
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Section 5.07 Access to List of Securityholders' Names and Addresses..............................................27
Section 5.08 Maintenance of Office or Agency.....................................................................28
Section 5.09 Appointment of Paying Agent.........................................................................28
Section 5.10 Ownership of Common Securities by Depositor.........................................................29
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities Certificate.........................29
Section 5.12 Notices to Clearing Agency..........................................................................30
Section 5.13 Definitive Preferred Securities Certificates........................................................31
Section 5.14 Rights of Securityholders...........................................................................31
ARTICLE VI.......................................................................................................32
Section 6.01 Limitations on Voting Rights........................................................................32
Section 6.02 Notice of Meetings..................................................................................33
Section 6.03 Meetings of Preferred Securityholders...............................................................33
Section 6.04 Voting Rights.......................................................................................34
Section 6.05 Proxies, etc........................................................................................34
Section 6.06 Securityholder Action by Written Consent............................................................34
Section 6.07 Record Date for Voting and Other Purposes...........................................................34
Section 6.08 Acts of Securityholders.............................................................................35
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Section 6.09 Inspection of Records...............................................................................36
ARTICLE VII......................................................................................................36
Section 7.01 Representations and Warranties of the Trustees......................................................36
ARTICLE VIII.....................................................................................................37
Section 8.01 Certain Duties and Responsibilities.................................................................37
Section 8.02 Notice of Defaults..................................................................................38
Section 8.03 Certain Rights of Property Trustee..................................................................38
Section 8.04 Not Responsible for Recitals or Issuance of Securities..............................................40
Section 8.05 May Hold Securities.................................................................................40
Section 8.06 Compensation; Fees; Indemnity.......................................................................40
Section 8.07 Trustees Required; Eligibility......................................................................41
Section 8.08 Conflicting Interests...............................................................................41
Section 8.09 Co-Trustees and Separate Trustee....................................................................41
Section 8.10 Resignation and Removal; Appointment of Successor...................................................43
Section 8.11 Acceptance of Appointment by Successor..............................................................45
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Section 8.12 Merger, Conversion, Consolidation or Succession to Business.........................................45
Section 8.13 Preferential Collection of Claims Against Depositor or Trust........................................45
Section 8.14 Reports by Property Trustee.........................................................................46
Section 8.15 Reports to the Property Trustee.....................................................................46
Section 8.16 Evidence of Compliance with Conditions Precedent....................................................47
Section 8.17 Number of Trustees..................................................................................47
Section 8.18 Delegation of Power.................................................................................47
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders........................................48
ARTICLE IX.......................................................................................................49
Section 9.01 Termination Upon Expiration Date....................................................................49
Section 9.02 Early Termination...................................................................................49
Section 9.03 Termination.........................................................................................49
Section 9.04 Liquidation.........................................................................................49
Section 9.05 Bankruptcy..........................................................................................51
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ARTICLE X........................................................................................................51
Section 10.01 Guarantee by the Depositor.........................................................................51
Section 10.02 Limitation of Rights of Securityholders............................................................52
Section 10.03 Amendment..........................................................................................52
Section 10.04 Separability.......................................................................................53
Section 10.05 Governing Law......................................................................................53
Section 10.06 Successors.........................................................................................54
Section 10.07 Headings...........................................................................................54
Section 10.08 Notice and Demand..................................................................................54
Section 10.09 Agreement Not to Petition..........................................................................54
Section 10.10 Conflict with Trust Indenture Act..................................................................55
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
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of January 1,
1997, by and among (i) Gulf Power Company, a Maine 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) Linda Malone, 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
December 26, 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 December 26, 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, Linda Malone 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:
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ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional
Interest" in the Subordinated Indenture) paid by the Depositor on a Like
Amount of Junior Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as
an "Administrative Trustee" in the preamble to this Trust Agreement solely
in their capacities as Administrative Trustees of the Trust formed 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.
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"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.
"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.
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"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 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.
"Certificate Depository Agreement" means the agreement among the
Trust, the Property Trustee and The Depository Trust Company, as the
initial Clearing Agency, dated January 28, 1997, 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.
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"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 Gulf 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.
"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.
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"Depositor" means Gulf 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.
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"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Company and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Company and 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 $41,237,125 aggregate principal
amount of the Depositor's Series A 7.625% Junior Subordinated Notes due
December 31, 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.
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"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Notes
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of
the Depositor. An Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust
Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as is necessary, in such officer's opinion, to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
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(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;
(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
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that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities which such Trustee knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time
when all of the outstanding Preferred Securities are owned by the
Depositor, the Holder of the Common Securities, one or more Trustees and/or
any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Administrative Trustees the pledgee's right so to
act with respect to such Preferred Securities and that the pledgee is not
the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing corporate
trust account maintained by the Property Trustee for the benefit of the
Securityholders in which all amounts paid in respect of the Junior Subordinated
Notes will be held and from which the Property Trustee shall make payments to
the Securityholders in accordance with Section 4.01.
"Person" means an individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"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.
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"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 January 1, 1997, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
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"Supplemental Indenture" means the First Supplemental Indenture, dated
as of January 1, 1997, 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.
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"Underwriting Agreement" means the Underwriting Agreement, dated
January 27, 1997, 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 "Gulf
Power Capital Trust I", in which name the Trustees may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued. The Administrative Trustees may change the name of
the Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is 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 Gulf Power Company, 500 Bayfront Parkway,
Pensacola, Florida 32501, Attention: Treasurer. The principal place of business
of the Trust is c/o Gulf Power Company, 500 Bayfront Parkway, Pensacola, Florida
32501. 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.
<PAGE>
Section 2.04 Issuance of the Preferred Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to the underwriters
named in the Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, in an
aggregate amount of 1,600,000 Preferred Securities having an aggregate
Liquidation Amount of $40,000,000, against receipt of the aggregate purchase
price of such Preferred Securities of $40,000,000, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
49,485 Common Securities having an aggregate Liquidation Amount of $1,237,125,
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 $41,237,125, 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 $41,237,125.
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, Linda Malone 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
<PAGE>
applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the Trustees for the sole and limited purpose of fulfilling the
requirements of the Delaware Business Trust Act.
Section 2.07 Authorization to Enter into Certain Transactions. The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement. Subject to the limitations set forth in paragraph C of
this Section, and in accordance with the following paragraphs A and B, the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
A. As among the Trustees, the Administrative Trustees, acting singly or
jointly, shall have the exclusive power, duty and authority to act on behalf of
the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the proceeds
of the sale of the Trust Securities; provided, however, the
Administrative Trustees shall cause legal title to all of the Junior
Subordinated Notes to be vested in, and the Junior Subordinated Notes
to be held of record in the name of, the Property Trustee for the
benefit of the Trust and Holders of the Trust Securities;
(ii) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees shall
consult with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a Special
Event;
<PAGE>
(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;
<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
<PAGE>
(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;
<PAGE>
(vi) the establishment and maintenance of the Payment Account;
(vii)the receipt of and holding of legal title to the Junior
ubordinated Notes as described herein;
(viii) the collection of interest, principal and any other payments
made in respect of the Junior Subordinated Notes in the Payment Account;
(ix) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding up of
the affairs of and termination of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
<PAGE>
D. In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
NASDAQ National Market for listing upon notice of issuance of any
Preferred Securities;
<PAGE>
(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.
<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
<PAGE>
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.
<PAGE>
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 March 31, 1997. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of 7.625% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of twelve 30-day months and a 360-day year. If the interest payment
period for the Junior Subordinated Notes is extended pursuant to Section 104 of
the Supplemental Indenture (an "Extension Period"), then the rate per annum at
which Distributions on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded quarterly, to the extent
permitted by applicable law) 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.
<PAGE>
(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;
(iii) the CUSIP number;
<PAGE>
(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,
<PAGE>
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 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.
<PAGE>
(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 cured, waived or
<PAGE>
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
<PAGE>
$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. 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,
<PAGE>
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
<PAGE>
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section 4.01(d)) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Depositor or the Property Trustee, as the
case may be, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
<PAGE>
Securityholders as of a date not more than 15 days prior to the time such list
is furnished. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than 25% of the outstanding
Liquidation Amount apply in writing to the Administrative Trustees, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, as its principal
agency for such purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change in the location
of the Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions and payments provided hereby. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
<PAGE>
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
<PAGE>
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of principal of and interest on the Book-Entry Preferred Securities
and the giving of instructions or directions to Owners of Book-Entry
Preferred Securities) as the sole Holder of Book-Entry Preferred Securities
and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.
<PAGE>
(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)
<PAGE>
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
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
<PAGE>
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of at least 66-2/3% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Junior
Subordinated Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Preferred Securities,
whether by way of amendment to this Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least 66-2/3% in Liquidation Amount of the Outstanding
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
<PAGE>
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.
<PAGE>
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 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.
<PAGE>
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
<PAGE>
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the Trustees. The Bank,
the Delaware Bank, the Property Trustee and the Delaware Trustee, each on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
<PAGE>
(a) the Bank is a banking corporation or trust company duly organized,
validly existing and in good standing under the laws of the State of New York,
and the Delaware Trustee is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
(b) each of the Bank and the Delaware Bank has full corporate power,
authority and legal right to execute, deliver and perform their obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Bank and constitutes the valid
and legally binding agreement of each of the Bank and the Delaware Bank,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by each of the Bank and the
Delaware Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank, the Property Trustee, the Delaware
Bank and the Delaware Trustee and do not require any approval of stockholders of
the Bank or the Delaware Bank and such execution, delivery and performance will
not (i) violate the Bank's or the Delaware Bank's Charter or By-laws, or (ii)
violate any law, governmental rule or regulation of the United States or the
State of New York or Delaware, as the case may be, governing the banking or
trust powers of the Bank and the Property Trustee or the Delaware Bank and the
Delaware Trustee, or any order, judgment or decree applicable to the Bank, the
Property Trustee, the Delaware Bank or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the Bank or the
Delaware Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Bank, the Property Trustee, the Delaware Bank or the
Delaware Trustee (as appropriate in context) contemplated herein or therein, nor
the issuance of the Trust Securities Certificates pursuant to this Trust
Agreement require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, New York or
Delaware law governing the banking or trust powers of the Bank or the Delaware
Bank.
<PAGE>
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
<PAGE>
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
<PAGE>
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days),
it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(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.
<PAGE>
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trustee Administrative Department shall have received
written notice from the Company, any Holder or any other Trustee that such funds
are not legally available.
Section 8.05 May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article I, any Trustee or any other agent of the
Trustees or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their willful misconduct,
negligence or bad faith; and
<PAGE>
(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 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.
<PAGE>
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under the Guarantee.
Section 8.09 Co-Trustees and Separate Trustee.
At any time or times, for the purpose of meeting the legal requirements
of the Trust Indenture Act or of any jurisdiction in which any part of the Trust
Property may at the time be located, the Holder of the Common Securities and the
Property Trustee shall have power to appoint, and upon the written request of
the Property Trustee, the Depositor shall for such purpose join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to act as separate
trustee of any such Trust Property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or Persons
in the capacity aforesaid, any property, title, right or power deemed necessary
or desirable, subject to the other provisions of this Section. If the Depositor
does not join in such appointment within 15 days after the receipt by it of a
request so to do, or in case an Indenture Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
<PAGE>
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.
<PAGE>
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) he 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,
<PAGE>
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
<PAGE>
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
<PAGE>
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 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.
<PAGE>
(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.
<PAGE>
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Trust Agreement), shall have all powers granted to the
Administrative Trustees and shall discharge the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
2.07(A), including any registration statement or amendment thereto filed with
the Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time
to time to such of their number the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 8.19 Enforcement of Rights of Property Trustee by
Securityholders. If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for more than 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
<PAGE>
Notes, provided that such direction shall not be in conflict with any rule of
law or with this Trust Agreement, and could not involve the Property Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Notes, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce its rights under this Trust Agreement without first instituting any
legal proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Trust Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the 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 therefor specified or provided for in the Series A Junior
Subordinated Notes. The Company shall be subrogated to all rights of the Holders
of Preferred Securities in respect of any amounts paid to such Holders by the
Company pursuant to this Section.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 2042 (the "Expiration Date") or earlier
pursuant to Section 9.02.
<PAGE>
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.
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.
<PAGE>
(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
<PAGE>
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.
<PAGE>
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 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,
<PAGE>
provided, however, that any such amendment shall not adversely affect in any
material respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes at any time that
any Trust Securities are outstanding; provided, however, that, except in the
case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Trust Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
<PAGE>
(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.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
<PAGE>
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 Gulf Power Company, 500 Bayfront Parkway, Pensacola, Florida
32501, Attention: Treasurer, Facsimile No. (904) 444-6026, with a copy to
Southern Company Services, Inc., 270 Peachtree Street, N.W., Suite 2000,
Atlanta, Georgia 30303, Attention: Corporate Finance Department, Facsimile No.
(404) 506-0674. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee and the Delaware Trustee, The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York, 10001, Attention: Corporate Trustee Administration
Department; Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust Department, as the case may be; and
(ii) with respect to the Administrative Trustees, to them at the address above
for notices to the Depositor, marked Attention: Administrative Trustees of Gulf
Power Capital Trust I c/o Treasurer. Such notice, demand or other communication
to or upon the Trust or the Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
<PAGE>
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 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.
<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.
GULF POWER COMPANY,
as Depositor
By:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Title:
Linda Malone
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
<PAGE>
EXHIBIT A
[INTENTIONALLY RESERVED]
Exhibit - Page 1
<PAGE>
EXHIBIT B
_______________, 19__
The Depository Trust Company
55 Water Street, 49th Floor
New York, New York 10041-0099
Attention: General Counsel's Office
Re: Gulf 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 Gulf 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 _______ __, 19__ by Gulf Power
Company, a Maine corporation. The Trust is selling the Securities to certain
underwriters (the "Underwriters") pursuant to an Underwriting Agreement dated
_______ __, 19__, 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.
<PAGE>
1. Before the closing of the sale of the Securities to the
Underwriters, which is expected to occur on or about ______________, 19__ 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 _______ __,
19__ provides for the voting by holders of the Securities under certain
circumstances. The Trust shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date. Notices to DTC pursuant to this
paragraph by telecopy shall be sent to DTC's Reorganization Department at (212)
709-6896 or (212) 709-6897, and receipt of such notices shall be confirmed by
telephoning (212) 709-6870. Notices to DTC pursuant to this paragraph by mail or
by other means shall be sent to DTC's Reorganization Department as indicated in
paragraph 6.
3. In the event of stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Securities outstanding, the Trust shall send DTC a notice
of such event 5 business days prior to the effective date of such event.
4. In the event of a distribution with respect to the Securities
outstanding, the Property Trustee shall send DTC a notice specifying the amount
of and conditions, if any, applicable to such payment or distribution. Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the record date for such distribution. (The
Property Trustee shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) After establishing the amount of
payment to be made on the Securities, the Property Trustee will notify DTC's
Dividend Department of such payment 5 business days prior to payment date.
<PAGE>
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:
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 "Gulf 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
<PAGE>
The Trust shall confirm DTC's receipt of such telecopy by telephoning
the Dividend Department at (212) 709-1270.
9. Payments of cash distributions, including payments on redemption,
with respect to the Securities evidenced by the Global Certificate shall be
received by Cede & Co., as nominee of DTC, or its registered assigns in same day
funds on each payment date (or in accordance with existing arrangements between
the Property Trustee and DTC). Such payments shall be made payable to the order
of Cede & Co.
10. Other cash payments shall be received by Cede & Co., as a nominee
of DTC, or its registered assigns in next day funds on each payment date (or in
accordance with existing arrangements between the Property Trustee and DTC).
Such payments shall be made payable to the order of Cede & Co., and shall be
addressed as follows:
NFDS Redemption Department
The Depository Trust Department
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
11. DTC may direct the Trust and the Property Trustee to use any other
telecopy number or address of DTC as the number or address to which notices or
payments may be sent.
12. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Trust's
invitation) necessitating a reduction in the aggregate 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.
<PAGE>
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.
<PAGE>
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,
Gulf Power Capital Trust I
By:_______________________
Name:
Title: Administrative Trustee
THE CHASE MANHATTAN BANK,
as Property Trustee of
Gulf Power Capital Trust I
By:_______________________
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:_____________________________
Authorized Officer
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 ________
Certificate Evidencing Common Securities
of
Gulf Power Capital Trust I
Common Securities
(liquidation amount $25 per Common Security)
Gulf Power Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Gulf
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 January 1, 1997, 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.
<PAGE>
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of ________, 19__.
Gulf Power Capital Trust I
By:
Linda Malone,
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
<PAGE>
Exhibit D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of January 1,1997, between Gulf Power Company, a Maine corporation (the
"Company"), and Gulf 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 Gulf Power Capital Trust I 7.625% Cumulative Quarterly Income
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of January 1, 1997 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:
Exhibit D - Page 1
<PAGE>
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by the Company and The Chase Manhattan Bank, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants, agreements
and duties of the Company under this Agreement shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the Trust of all or
any portion of the Obligations or for the performance of any
other obligation under, arising out of, or in connection
with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action
on the part of the Trust granting indulgence or extension of
any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees
and representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.02. Amendment. So long as there remains any Beneficiary or
any Preferred Securities of any series are outstanding, this Agreement
shall not be modified or amended in any manner adverse to such Beneficiary
or to the holders of the Preferred Securities.
<PAGE>
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:
Gulf Power Capital Trust I
c/o The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Facsimile No.: (904) 444-6026
Attention: Treasurer
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
<PAGE>
THIS AGREEMENT is executed as of the date and year first above written.
GULF POWER COMPANY
By:
Warren E. Tate
Secretary and Treasurer
GULF POWER CAPITAL TRUST I
By:
Wayne Boston, as
Administrative Trustee
<PAGE>
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Gulf Power
Capital Trust I or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), any transfer, pledge, or other use hereof for
value or otherwise by or to any person is wrongful inasmuch as the registered
owner thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
---------
P-1 CUSIP NO. 402473201 _______
Certificate Evidencing Preferred Securities
of
Gulf Power Capital Trust I
7.625% Cumulative Quarterly Income Preferred Securities
(Liquidation amount $25 per Preferred Security)
Gulf 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 _____ MILLION (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Gulf Power Capital Trust I 7.625%
Cumulative Quarterly Income 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
Exhibit E - page 1
<PAGE>
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust, dated as of January 1, 1997, 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 Gulf
Power Company, a Maine corporation (the "Company"), pursuant to a Guarantee
Agreement between the Company and The Chase Manhattan Bank, as guarantee
trustee, dated as of January 1, 1997, 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 ________, 19__.
GULF POWER CAPITAL TRUST I
By:
Linda Malone,
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
<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)
GUARANTEE AGREEMENT
Between
Gulf Power Company
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
January 1, 1997
<PAGE>
<TABLE>
<CAPTION>
i
CROSS-REFERENCE TABLE1
<S> <C>
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)
</TABLE>
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.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Page
ARTICLE I.........................................................................................................1
SECTION 1.01. Definitions.........................................................................................1
ARTICLE II........................................................................................................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.........................................................................5
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...............................................................................6
ARTICLE III.......................................................................................................6
SECTION 3.01. Powers and Duties of the Trustee....................................................................6
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 3.02. Certain Rights of Trustee...........................................................................8
SECTION 3.03. Compensation; Fees; Indemnity.......................................................................9
ARTICLE IV.......................................................................................................10
SECTION 4.01. Trustee; Eligibility...............................................................................10
SECTION 4.02. Appointment, Removal and Resignation of Trustee....................................................11
ARTICLE V........................................................................................................11
SECTION 5.01. Guarantee..........................................................................................11
SECTION 5.02. Waiver of Notice and Demand........................................................................12
SECTION 5.03. Obligations Not Affected...........................................................................12
SECTION 5.04. Rights of Holders..................................................................................13
SECTION 5.05. Guarantee of Payment...............................................................................13
SECTION 5.06. Subrogation........................................................................................14
SECTION 5.07. Independent Obligations............................................................................14
ARTICLE VI.......................................................................................................14
SECTION 6.01. Subordination......................................................................................14
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
ARTICLE VII......................................................................................................14
SECTION 7.01. Termination........................................................................................14
ARTICLE VIII.....................................................................................................15
SECTION 8.01. Successors and Assigns.............................................................................15
SECTION 8.02. Amendments.........................................................................................15
SECTION 8.03. Notices............................................................................................15
SECTION 8.04. Benefit............................................................................................16
SECTION 8.05. Interpretation.....................................................................................16
SECTION 8.06. Governing Law......................................................................................17
</TABLE>
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of January
1, 1997, between GULF POWER COMPANY, a Maine 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 GULF POWER CAPITAL TRUST I, a
Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of January 1, 1997, among the Trustee, the other
Trustees named therein, Gulf Power Company, as Depositor, and the holders of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
as of January 31, 1997 $40,000,000 aggregate liquidation amount of its 7.625%
Cumulative Quarterly Income 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.
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and 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").
<PAGE>
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as of January
1, 1997, between the Guarantor, as Subordinated Note Issuer, and The Chase
Manhattan Bank, as trustee, as supplemented by the First Supplemental Indenture
dated as of January 1, 1997, by 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;
<PAGE>
(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.
"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.
<PAGE>
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 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.
<PAGE>
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.
<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.
<PAGE>
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a 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
<PAGE>
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii)whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
<PAGE>
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
<PAGE>
(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
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.
<PAGE>
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).
<PAGE>
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a Successor
Trustee shall have been appointed or until its removal or resignation. The
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of 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
<PAGE>
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.
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;
<PAGE>
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the Trustee to be held
for the benefit of the Holders; (ii) the Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement, provided that
such direction shall not be in conflict with any rule of law or with this
Guarantee Agreement, and could not involve the Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate; and (iv) 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 or requesting or directing that action be taken by 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.
<PAGE>
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 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.
<PAGE>
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.
<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:
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Facsimile No.: (904) 444-6026
Attn: Treasurer
with copy to:
Southern Company Services, Inc.
270 Peachtree Street, N.W., Suite 2000
Atlanta, Georgia 30303
Facsimile No.: (404) 506-0674
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:
Gulf Power Capital Trust I
c/o The Chase Manhattan Bank
450 W. 33rd Street
New York, New York 10001
Attn: Corporate Trustee Administration Department
<PAGE>
(c) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in
Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or
amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
<PAGE>
(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 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.
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
GULF POWER COMPANY
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name: R. Lorenzen
Title: Senior Trust Officer
