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 13, 1998
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 (850) 444-6000
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N/A
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(Former name or former address, if changed since last report.)
<PAGE>
Item 5. Other Events.
On January 13, 1998, Gulf Power Company (the "Company") and Gulf
Power Capital Trust II (the "Trust") entered into an Underwriting Agreement
covering the issue and sale by the Trust of 1,800,000 7.00% 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. 333-42033, 333-42033-01 and 333-42033-02) of the Company and the Trust.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated January 13, 1998, among the Company,
the Trust and Goldman, Sachs & Co.
4.2 Third Supplemental Indenture dated as of January 1, 1998,
providing for the issuance of the Company's Series C 7.00% Junior
Subordinated Notes due December 31, 2037.
4.5 Amended and Restated Trust Agreement of Gulf Power Capital Trust
II.
4.6 Form of Preferred Security of Gulf Power Capital Trust II
(included in Exhibit 4.5 above).
4.7 Form of Series C 7.00% Junior Subordinated Note (included in
Exhibit 4.2 above).
4.8 Guarantee Agreement relating to Gulf Power Capital Trust II.
4.9 Agreement as to Expenses and Liabilities relating to Gulf Power
Capital Trust II (included in Exhibit 4.5 above).
<PAGE>
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 20, 1998 GULF POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
1,800,000 Preferred Securities
Gulf Power Capital Trust II
(a Delaware Statutory Business Trust)
7.00 % Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
January 13, 1998
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Gulf Power Capital Trust II (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.
ss. 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 7.00 % 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
Guarantee Agreement (the "Guarantee Agreement"), dated as of January 1, 1998,
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."
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 $46,391,775
principal amount of Series C 7.00 % Junior Subordinated Notes due December 31,
2037 (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, 1998 (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, as heretofore supplemented (the "Base Indenture"),
between the Company and The Chase Manhattan Bank, as trustee (the "Debt
Trustee"), and further supplemented by a third supplemental indenture to the
Base Indenture, dated as of January 1, 1998 (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 (File Nos.
333-42033, 333-42033-01 and 333-42033-02) 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,
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 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 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 8, 1998 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").
(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 "Description of the Preferred Securities
-- 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 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 "Description of the Preferred Securities
-- 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.
(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 assets of 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.
(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 assets of 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
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 Final Supplemented 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 obligations 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.
(s) Each of the Administrative Trustees of the Trust
is an officer 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 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
20, 1998 (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 delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Preferred
Securities to be purchased by them. A single global certificate for the
Preferred Securities shall be registered in the name of Cede & Co. 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 for the Preferred Securities will be
made available for examination 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 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 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 LLP.
(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 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. Except as otherwise may be
agreed in writing by the Offerors and the Representative, the Company will pay
all expenses incidental 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
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 LLP.
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:
(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, P.A., 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, P.A., 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 opinion, dated as of the Closing
Date, of Dewey Ballantine LLP, 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 under the Agreement on or prior to the
Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the Commission.
(8) On this Closing Date, the Representative
shall have received from Arthur Andersen LLP a letter dated
the Closing Date to the effect that: (A) they are independent
public accountants with respect to the Company within the
meaning of the 1933 Act and the 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 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 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 LLP, 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 LLP 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 marketability 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 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 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 Offerors on
account of their 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 they 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.
(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 the 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 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 LLP 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.
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 via U.S. mail at One Energy Place,
Pensacola, Florida 32520-0102, Attention: Corporate Secretary, or via physical
delivery at 500 Bayfront Parkway, Pensacola, Florida 32501, Attention: Corporate
Secretary, in either case 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.
<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 II
By:______________________________________
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 NUMBER OF SECURITIES
Goldman, Sachs & Co. 302,000
J.C. Bradford & Co. 300,000
A.G. Edwards & Sons, Inc. 300,000
The Robinson-Humphrey Company, LLC 300,000
BT Alex. Brown Incorporated 34,000
CIBC Oppenheimer Inc. 34,000
EVEREN Securities, Inc. 34,000
Legg Mason Wood Walker, Incorporated 34,000
Morgan Keegan & Company, Inc. 34,000
Regions Investment Company, Inc. 34,000
Stephens Inc. 34,000
Advest, Inc. 20,000
Cowen & Company 20,000
Dain Bosworth Incorporated 20,000
Fahnestock & Co. Inc. 20,000
Interstate/Johnson Lane Corporation 20,000
McDonald & Company Securities, Inc. 20,000
McGinn, Smith & Co., Inc. 20,000
The Ohio Company 20,000
Olde Discount Corporation 20,000
Piper Jaffray Inc. 20,000
Pryor, McClendon, Counts & Co., Inc. 20,000
Raymond James & Associates, Inc. 20,000
Roney & Co., LLP 20,000
Muriel Siebert & Co., Inc. 20,000
Sutro & Co. Incorporated 20,000
Tucker Anthony Incorporated 20,000
U.S. Clearing Corp. 20,000
Wheat, First Securities, Inc. 20,000
Total 1,800,000
<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 II
_.__% 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 II
(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 C _.__% 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 heretofore supplemented and
as further supplemented by the Third 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 _______, 199_, among the Company, the Trust and the underwriters
named in Schedule I thereto (the "Underwriters") for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-42033, 333-42033-01 and
333-42033-02) 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, 1996, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 1997, June 30, 1997
and September 30, 1997 and the Current Reports on Form 8-K of the Company dated
January 27, 1997, February 12, 1997, July 28, 1997 and January __, 1998 (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 LLP, as to
matters of Delaware law upon the opinion dated hereof rendered to you by
Richards, Layton & Finger, P.A., 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:
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.
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.
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.
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.
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.
The Guarantee has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in accordance with its terms,
subject to the qualifications that the enforceability of the Company's
obligations under the Guarantee may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Guarantee conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
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.
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").
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.
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.
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, 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.
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.
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 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 13 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 or with respect to the
information contained in the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company."
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, to the extent set forth herein, the laws of the
States of Delaware and New York and the federal law of the United States.
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 LLP
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
<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 II
_.__% 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 II, 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 C ___% 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 heretofore
supplemented and as further supplemented by the Third 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 The Chase Manhattan Bank, 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. 333-42033, 333-42033-01, and
333-42033-02) 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, 1996, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 1997, June 30, 1997
and September 30, 1997 and the Current Reports on Form 8-K of the Company dated
January 27, 1997, February 12, 1997, July 28, 1997 and January __, 1998 (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 LLP and relying as to
matters of Delaware law upon the opinion dated the date hereof rendered to you
by Richards, Layton & Finger, P.A., that:
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.
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.
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.
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.
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 material respects to the description thereof in the Final Supplemented
Prospectus.
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.
Each of the Indenture, the Guarantee Agreement and the Trust
Agreement has been duly qualified under the Trust Indenture Act of 1939, as
amended.
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.
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.
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.
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, 9 and 10 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 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 or with respect to the
information contained in the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company."
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.
<PAGE>
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 Beggs & Lane and Dewey Ballantine 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 Georgia law
and, in the case of Beggs & Lane, insofar as such opinions relate to the Act,
the Exchange Act, the Public Utility Holding Company Act of 1935, as amended,
the Trust Indenture Act of 1939, as amended, and the Investment Company Act of
1940, as amended.
Yours very truly,
TROUTMAN SANDERS LLP
<PAGE>
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER, P.A.]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Re: Gulf Power Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Gulf Power
Company, a Maine corporation (the "Company"), and Gulf Power Capital Trust II, 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 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 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. ss. 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.
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 II" 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) 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 LLP 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, P.A.
<PAGE>
Schedule V
[Letterhead of Richards, Layton & Finger, P.A.]
__________ __, 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 II
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Re: Gulf Power Capital Trust II
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 II, 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 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.
(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, P.A.
<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 II
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust II
_.__% 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
January 1, 1997, as heretofore supplemented (the "Original Indenture"), between
Gulf Power Company (the "Company") and the Bank, as Trustee, (b) the Third
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 Linda Malone
and Wayne Boston, as Administrative Trustees.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, the Trust Agreement,
the Guarantee Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture, the Trust Agreement
and the Guarantee Agreement, has duly executed and delivered 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 to general
principles of equity (including without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), 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 only 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 relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
<PAGE>
Schedule VII
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST II
_.__% 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 II (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
C ___% Junior Subordinated Notes (the "Notes") pursuant to a Subordinated Note
Indenture dated as of January 1, 1997, by and between the Company and The Chase
Manhattan Bank, as trustee, as heretofore supplemented and as further
supplemented by the Third 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 Guarantee Agreement
dated as of __________, 199_ (the "Guarantee Agreement") between the Company and
The Chase Manhattan Bank, 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. 333-42033, 333-42033-01 and
333-42033-02) pertaining to the Preferred Securities (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated December 30, 1997, as supplemented by a final supplemental
prospectus dated January 13, 1998, 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, 1996, the Quarterly Reports on Form 10-Q of the Company for
the quarters ended March 31, 1997, June 30, 1997 and September 30, 1997 and the
Current Reports on Form 8-K of the Company, dated January 27, 1997, February 12,
1997, July 28, 1997 and January 13, 1998 (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,
P.A., 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 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, 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 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 or with respect to the
information contained in the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company."
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, and Troutman Sanders LLP may rely on this opinion in giving their
opinion pursuant to Sections 102, 302 and 904 of the Indenture, insofar as such
opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
Exhibit 4.2
==============================================================================
GULF POWER COMPANY
TO
THE CHASE MANHATTTAN BANK,
TRUSTEE.
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 1, 1998
$46,391,775
SERIES C 7.00% JUNIOR SUBORDINATED NOTES
DUE DECEMBER 31, 2037
==============================================================================
<PAGE>
TABLE OF CONTENTS1
PAGE
ARTICLE 1.....................................................................2
SECTION 101. Establishment....................................................2
SECTION 102. Definitions......................................................2
SECTION 103. Payment of Principal and Interest................................3
SECTION 104. Deferral of Interest Payments....................................4
SECTION 105. Denominations....................................................5
SECTION 106. Global Securities................................................5
SECTION 107. Transfer.........................................................6
SECTION 108. Redemption.......................................................6
ARTICLE 2.....................................................................7
SECTION 201. Recitals by Company..............................................7
SECTION 202. Ratification and Incorporation of Original Indenture.............7
SECTION 203. Executed in Counterparts.........................................7
SECTION 204. Listing of Notes.................................................7
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.
i
<PAGE>
THIS THIRD SUPPLEMENTAL INDENTURE is made as of the 1st day of
January, 1998, 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, as supplemented by a First
Supplemental Indenture dated as of January 1, 1997 (the "First Supplement
Indenture"), with The Chase Manhattan Bank and by a Second Supplemental
Indenture, dated as of August 1, 1997 (the "Second Supplemental Indenture"),
with The Chase Manhattan Bank;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by the First Supplemental
Indenture, the Second Supplemental Indenture and this Third 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 Indentur
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
and delivery of this Third 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 C 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 C 7.00% Junior Subordinated Notes due December 31, 2037
(the "Series C Notes").
There are to be authenticated and delivered $46,391,775 principal
amount of Series C Notes, and no further Series C Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series C Notes shall be issued in definitive fully
registered form.
The Series C Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series C Notes shall
initially be evidenced by one certificate issued to the Property Trustee of Gulf
Power Capital Trust II.
The form of the Trustee's Certificate of Authentication for the Series
C Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series C 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 7.00% per annum from the applicable Interest
Payment Date to the date of payment, compounded quarterly.
"Extension Period" means any period during which the Company has
elected to defer payments of interest, which deferral may be for a period of up
to twenty (20) consecutive quarters.
"Interest Payment Dates" means March 31, June 30, September 30, and
December 31 of each year.
"Investment Company Act Event" means that the Company shall have
received an Opinion of Counsel to the effect that, as a result of the occurrence
of a change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
2
<PAGE>
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 20, 1998.
"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 II, 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 C Notes.
"Special Event" means an Investment Company Act Event or Tax Event.
"Stated Maturity" means December 31, 2037.
"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 C Notes, (ii) interest payable on the Series C 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.
SECTION 103. Payment of Principal and Interest. Principal shall be paid
at the Stated Maturity (or upon earlier redemption). The unpaid principal amount
of the Series C Notes shall bear interest at the rate of 7.00% 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 C 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 C 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 C 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 C Notes
3
<PAGE>
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 C Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series C 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 C Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
Payment of the principal and interest (including Additional Interest,
if any) due at the Stated Maturity or earlier redemption of the Series C Notes
shall be made upon surrender of the Series C 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 C 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 C 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.
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
4
<PAGE>
C 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.
The Company shall give the Holder or Holders of the Series C 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 C Notes such information
as said Paying Agent shall reasonably require in order to fulfill its tax
reporting obligations with respect to such Series C Notes.
SECTION 105. Denominations. The Series C Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 106. Global Securities. If the Series C Notes are distributed
to Holders of the Trust Securities of the Securities Trust in liquidation of
such Holders' interests therein, the Series C 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 C Notes represented by the Global Security
will not be exchangeable for, and will not otherwise be issuable as, Series C
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 C 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 C 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
5
<PAGE>
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 C
Notes. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series C Notes registered in such names as
the Depositary shall direct.
SECTION 107. Transfer. No service charge will be made for any transfer
or exchange of Series C 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 C 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 C 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 C Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series C Note redeemed in part.
SECTION 108. Redemption. The Series C 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 20, 2003, 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 C 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 C 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 C Notes in part only, a new
Series C Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series C 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 C Notes shall, with
respect to the principal thereof, be divisible by $25.
6
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Third
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 C Notes and of this Third Supplemental Indenture
as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
heretofore supplemented by the First Supplemental Indenture and the Second
Supplemental Indenture and as supplemented hereby, the Original Indenture is in
all respects ratified and confirmed, and the Original Indenture, the First
Supplemental Indenture, the Second Supplemental Indenture and this Third
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 203. Executed in Counterparts. This Third 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 C Notes are to be issued
as a Global Security in connection with the distribution of the Series C Notes
to the Holders of the Preferred Securities issued by the Securities Trust, the
Company will use its best efforts to list such Series C Notes on the New York
Stock Exchange or any such other exchange on which such Preferred Securities are
then listed and traded.
7
<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 Vice President
ATTEST: THE CHASE MANHATTAN BANK
By:----------------------- By:---------------------
8
<PAGE>
EXHIBIT A
FORM OF SERIES C NOTE
9
<PAGE>
NO. 1 CUSIP NO. 402479BG3
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 C 7.00% JUNIOR SUBORDINATED NOTE
DUE DECEMBER 31, 2037
Principal Amount: $__________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: January 20, 1998
Stated Maturity: December 31, 2037
Interest Payment Dates: March 31, June 30, September 30 and December 31
Interest Rate: 7.00% per annum
Authorized Denomination: $25
Initial Redemption Date: January 20, 2003
Gulf Power Company, a Maine corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_____________________________________, or registered assigns, the principal sum
of _________ DOLLARS ($__________) 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
<PAGE>
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
payable at Stated Maturity or on any Redemption Date will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes of this series shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee or the principal corporate trust office of the Property Trustee of
the Securities Trust are closed for business.
The Company shall have the right at any time and from time to time
during the term of this Note to extend the interest payment period of such Note
for up to 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, subject to certain exceptions
provided in the Indenture, (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,
2
<PAGE>
on or repay, repurchase or redeem any debt securities (including guarantees
other than its guarantee of the Preferred Securities issued by Gulf Power
Capital Trust II) issued by the Company that rank pari passu with or junior to
this Note. The Company shall give the Holder of this Note and the Trustee notice
of its selection or extension of an Extension Period at least one Business Day
prior to the earlier of (i) the Regular Record Date relating to the Interest
Payment Date on which the Extension Period is to commence or relating to the
Interest Payment Date on which an Extension Period that is being extended would
otherwise terminate or (ii) the date the Company or Securities Trust is required
to give notice to the New York Stock Exchange or other applicable
self-regulatory organization of the record date or the date distributions are
payable.
The Company also shall be obligated to pay when due and without
extension all additional amounts as may be required so that the net amount
received and retained by the Holder of this Note (if the Holder is a Securities
Trust) after paying taxes, duties, assessments or governmental charges of
whatever nature (other than withholding taxes) imposed by the United States or
any other taxing authority will not be less than the amounts such Holder would
have received had no such taxes, duties, assessments, or other governmental
charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
C Notes shall be made upon surrender of the Series C 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.
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.
3
<PAGE>
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.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
GULF POWER COMPANY
By:--------------------------
Attest:
- -----------------------------------------------
{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 C 7.00% Junior Subordinated Notes due
December 31, 2037 (the "Series C Notes") in the aggregate principal amount of up
to $46,391,775. 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 20, 2003
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)
the related Securities Trust would be subject to United States federal income
tax with respect to income accrued or received on the Series C Notes, (ii)
interest payable on the Notes of this series 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.
7
<PAGE>
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the surrender
hereof. The Notes will not have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
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.
8
<PAGE>
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.
9
<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 ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties 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.
10
<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 II
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, 1998
<PAGE>
GULF POWER CAPITAL TRUST II
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
<S> <C>
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.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE I Defined Terms..........................................................................................2
Section 1.01 Definitions..........................................................................................2
ARTICLE II Establishment of the Trust...........................................................................10
Section 2.01 Name................................................................................................10
Section 2.02 Offices of the Trustees; Principal Place of Business................................................10
Section 2.03 Initial Contribution of Trust Property; Organizational Expenses.....................................10
Section 2.04 Issuance of the Preferred Securities................................................................10
Section 2.05 Subscription and Purchase of Junior Subordinated Notes; Issuance of the Common Securities...........11
Section 2.06 Declaration of Trust................................................................................11
Section 2.07 Authorization to Enter into Certain Transactions....................................................11
Section 2.08 Assets of Trust.....................................................................................16
Section 2.09 Title to Trust Property.............................................................................16
Section 2.10 Mergers and Consolidations of the Trust.............................................................16
ARTICLE III Payment Account.....................................................................................17
Section 3.01 Payment Account.....................................................................................17
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
ARTICLE IV Distributions; Redemption............................................................................18
Section 4.01 Distributions.......................................................................................18
Section 4.02 Redemption..........................................................................................19
Section 4.03 Subordination of Common Securities..................................................................21
Section 4.04 Payment Procedures..................................................................................21
Section 4.05 Tax Returns and Reports.............................................................................21
ARTICLE V Trust Securities Certificates.........................................................................22
Section 5.01 Initial Ownership...................................................................................22
Section 5.02 The Trust Securities Certificates...................................................................22
Section 5.03 Authentication of Trust Securities Certificates.....................................................22
Section 5.04 Registration of Transfer and Exchange of Preferred Securities Certificates..........................22
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..................................23
Section 5.06 Persons Deemed Securityholders......................................................................24
Section 5.07 Access to List of Securityholders' Names and Addresses..............................................24
Section 5.08 Maintenance of Office or Agency.....................................................................24
Section 5.09 Appointment of Paying Agent.........................................................................24
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 5.10 Ownership of Common Securities by Depositor.........................................................25
Section 5.11 Book-Entry Preferred Securities Certificates; Common Securities Certificate.........................25
Section 5.12 Notices to Clearing Agency..........................................................................26
Section 5.13 Definitive Preferred Securities Certificates........................................................26
Section 5.14 Rights of Securityholders...........................................................................27
ARTICLE VI Acts of Securityholders; Meetings; Voting............................................................27
Section 6.01 Limitations on Voting Rights........................................................................27
Section 6.02 Notice of Meetings..................................................................................28
Section 6.03 Meetings of Preferred Securityholders...............................................................28
Section 6.04 Voting Rights.......................................................................................29
Section 6.05 Proxies, etc........................................................................................29
Section 6.06 Securityholder Action by Written Consent............................................................29
Section 6.07 Record Date for Voting and Other Purposes...........................................................29
Section 6.08 Acts of Securityholders.............................................................................30
Section 6.09 Inspection of Records...............................................................................31
ARTICLE VII Representations and Warranties of the Trustees......................................................31
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 7.01 Representations and Warranties of the Trustees......................................................31
ARTICLE VIII The Trustees.......................................................................................32
Section 8.01 Certain Duties and Responsibilities.................................................................32
Section 8.02 Notice of Defaults..................................................................................32
Section 8.03 Certain Rights of Property Trustee..................................................................33
Section 8.04 Not Responsible for Recitals or Issuance of Securities..............................................34
Section 8.05 May Hold Securities.................................................................................34
Section 8.06 Compensation; Fees; Indemnity.......................................................................34
Section 8.07 Trustees Required; Eligibility......................................................................35
Section 8.08 Conflicting Interests...............................................................................35
Section 8.09 Co-Trustees and Separate Trustee....................................................................36
Section 8.10 Resignation and Removal; Appointment of Successor...................................................37
Section 8.11 Acceptance of Appointment by Successor..............................................................38
Section 8.12 Merger, Conversion, Consolidation or Succession to Business.........................................39
Section 8.13 Preferential Collection of Claims Against Depositor or Trust........................................39
Section 8.14 Reports by Property Trustee.........................................................................40
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 8.15 Reports to the Property Trustee.....................................................................40
Section 8.16 Evidence of Compliance with Conditions Precedent....................................................40
Section 8.17 Number of Trustees..................................................................................40
Section 8.18 Delegation of Power.................................................................................41
Section 8.19 Enforcement of Rights of Property Trustee by Securityholders........................................41
ARTICLE IX Termination and Liquidation..........................................................................42
Section 9.01 Termination Upon Expiration Date....................................................................42
Section 9.02 Early Termination...................................................................................42
Section 9.03 Termination.........................................................................................42
Section 9.04 Liquidation.........................................................................................43
Section 9.05 Bankruptcy..........................................................................................44
ARTICLE X Miscellaneous Provisions..............................................................................44
Section 10.01 Guarantee by the Depositor.........................................................................44
Section 10.02 Limitation of Rights of Securityholders............................................................44
Section 10.03 Amendment..........................................................................................45
Section 10.04 Separability.......................................................................................46
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 10.05 Governing Law......................................................................................46
Section 10.06 Successors.........................................................................................46
Section 10.07 Headings...........................................................................................46
Section 10.08 Notice and Demand..................................................................................46
Section 10.09 Agreement Not to Petition..........................................................................47
Section 10.10 Conflict with Trust Indenture Act..................................................................47
</TABLE>
EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B [INTENTIONALLY RESERVED]
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,
1998, 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:
<PAGE>
ARTICLE I
Defined Terms
Section 1.01 Definitions. For all purposes of this Trust Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, an amount equal to the Additional
Interest (as defined in clause (ii) of the definition of "Additional Interest"
in the Subordinated Indenture) paid by the Depositor on a Like Amount of
Junior Subordinated Notes for such period.
"Administrative Trustee" means each of the individuals identified as an
"Administrative Trustee" in the preamble to this Trust Agreement solely in their
capacities as Administrative Trustees of the Trust formed and continued
hereunder and not in their individual capacities, or such trustee's successor(s)
in interest in such capacity, or any successor "Administrative Trustee"
appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
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(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under federal bankruptcy law or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such
Person or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(ii) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under federal bankruptcy law or any other applicable federal
or state law, or the consent by it to the filing of such petition or to
the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any substantial
part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated January 15, 1998, relating to the Preferred Securities
Certificates, 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.
3
<PAGE>
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit C.
"Company" means 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.
"Depositor" means Gulf Power Company, in its capacity as "Depositor"
under this Trust Agreement.
4
<PAGE>
"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.
"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.
5
<PAGE>
"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 $46,391,775 aggregate principal
amount of the Depositor's Series C 7.00% Junior Subordinated Notes due December
31, 2037, issued pursuant to the Subordinated Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Notes to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Subordinated Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Notes
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"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;
6
<PAGE>
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(ii) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Preferred
Securities; provided that if such Preferred Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(iii) Preferred Securities in exchange for or in lieu of which
other Preferred Securities have been authenticated and delivered
pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any Trustee shall
be disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
which such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities so owned which
7
<PAGE>
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.
"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.
8
<PAGE>
"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
heretofore supplemented and as further supplemented by the Supplemental
Indenture.
"Supplemental Indenture" means the Third Supplemental Indenture, dated
as of January 1, 1998, 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.
9
<PAGE>
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Underwriting Agreement" means the Underwriting Agreement, dated
January 13, 1998, 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 II", in which name the Trustees may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued. The Administrative Trustees may change the name of
the Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001, or at such other address as the Property
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal place of business of the Delaware Trustee is 1201
Market Street, Wilmington, Delaware, 19801, or at such other address in Delaware
as the Delaware Trustee may designate by notice to the Depositor. The address of
the Administrative Trustees for United States mail is c/o Gulf Power Company,
One Energy Place, Pensacola, Florida 32520-0102, 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.
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 1,800,000 Preferred Securities having an aggregate
Liquidation Amount of $45,000,000, against receipt of the aggregate purchase
price of such Preferred Securities of $45,000,000, which amount the
Administrative Trustees shall promptly deliver to the Property Trustee.
10
<PAGE>
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
55,671 Common Securities having an aggregate Liquidation Amount of $1,391,775,
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 $46,391,775, 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 $46,391,775.
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
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;
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(ii) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of any Special Event (as defined in
the Supplemental Indenture) and to take any ministerial actions in
connection therewith; provided, that the Administrative Trustees shall
consult with the Depositor and the Property Trustee before taking or
refraining to take any ministerial action in relation to a Special
Event;
(iii) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including for the purposes of ss. 316(c) of the Trust Indenture Act and
with respect to Distributions, voting rights, redemptions, and
exchanges, and to issue relevant notices to Holders of the Trust
Securities as to such actions and applicable record dates;
(iv) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section
2.07(B)(v), the Property Trustee has the power to bring such Legal
Action;
(v) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(vi) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(vii) to give the certificate to the Property Trustee required
by ss. 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of this
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;
(xi) to issue and sell the Trust Securities;
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(xii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement and
the Certificate Depository Agreement and such other agreements as may
be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated
Notes to the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Trust Agreement;
(xvii) to register transfers of the Trust Securities in
accordance with this Trust Agreement;
(xviii) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have the
exclusive power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption 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
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in such ministerial activities as shall be necessary or appropriate to
effect promptly the distribution pursuant to terms of this Trust
Agreement of Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of the rights,
powers and privileges of a holder of the Junior Subordinated Notes
under the Subordinated Indenture and, if an Event of Default occurs and
is continuing, shall enforce for the benefit of, and subject to the
rights of, the Holders of the Trust Securities, its rights as holder of
the Junior Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties as may be
specifically required of the Property Trustee pursuant to the terms
of this Trust Agreement;
(v) take any Legal Action specifically required of the
Property Trustee pursuant to the terms of this Trust Agreement which
arises out of or in connection with an Event of Default or the Property
Trustee's duties and obligations under this Trust Agreement, the
Delaware Business Trust Act or the Trust Indenture Act;
(vi) the establishment and maintenance of the Payment Account;
(vii) the receipt of and holding of legal title to the Junior
Subordinated Notes as described herein;
(viii) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Notes in the
Payment Account;
(ix) the distribution of amounts owed to the Securityholders in
respect of the Trust Securities;
(x) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Notes to the
Securityholders in accordance with this Trust Agreement;
(xi) the distribution of the Trust Property in accordance
with the terms of this Trust Agreement;
(xii) as provided in this Trust Agreement, the winding up of
the affairs of and termination of the Trust and the preparation,
execution and filing of the certificate of cancellation with the
Secretary of State of Delaware; and
(xiii) the taking of any action incidental to the foregoing as
the Property Trustee may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
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C. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a grantor trust for United States federal income tax
purposes, (iv) incur any indebtedness for borrowed money, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) issue any securities other than the Trust Securities, or (vii)
have any power to, or agree to any action by the Depositor that would, vary the
investment (within the meaning of Treasury Regulation Section 301.7701-4(c)) of
the Trust or of the Securityholders. The Trustees shall defend all claims and
demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Trust or the Securityholders in their
capacity as Securityholders.
D. In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 under the Securities Act of 1933, as
amended, in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the states in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the
NASDAQ National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to execute,
deliver and perform the Underwriting Agreement on behalfof the Trust;
and
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(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.
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
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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
privilegesof the Holders of the Trust Securities (including any
Successor Securities) in any material respect, (vi) such successor
entity has a purpose substantially identical to that of the Trust,
(vii) prior to such merger, consolidation, amalgamation, or
replacement, the Company has received an Opinion of Counsel to the
effect that (A) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Trust Securities (including any
Successor Securities) in any material respect, and (B) following such
merger, consolidation, amalgamation or replacement, neither the Trust
nor such successor entity will be required to register as an
investment company under the Investment Company Act of 1940, and
(viii) the Company guarantees the obligations of such successor entity
under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of Holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the
Trust or the successor entity to be classified as other than a grantor
trust for federal income tax purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Junior Subordinated Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
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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, 1998. 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 7.00% 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.
(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.
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Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior Subordinated
Notes, the Trust will be required to redeem a Like Amount of Trust Securities at
the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 2:00 p.m. New York time, on the Redemption
Date, subject to Section 4.02(c), the Property Trustee will, so long as the
Preferred Securities are in book-entry only form, irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to 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
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without interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue at the
then applicable rate, from such Redemption Date originally established by the
Trust for such Preferred Securities to the date such Redemption Price is
actually paid.
(e) 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.
(f) 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
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payment of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of Default,
the Holder of Common Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency, which shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
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.
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Section 5.02 The Trust Securities Certificates. Each of the Preferred
and Common Securities Certificates shall be issued in minimum denominations of
$25 and integral multiples in excess thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Trust Securities
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit E
or Exhibit C, as applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Trust Securities Certificate shall have been duly authenticated and
delivered hereunder. All Trust Securities Certificates shall be dated the date
of their authentication.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, authenticate and deliver in the name of
the designated transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of authentication by the Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities that have been called for redemption. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
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like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustees and the Securities
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Administrative Trustees may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the Administrative Trustees or any one of them on behalf of the Trust
shall execute and authenticate and make available for delivery, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like class, tenor and
denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.
Section 5.06 Persons Deemed Securityholders. Prior to due presentation
of a Trust Securities Certificate for registration of transfer, the Trustees or
the Securities Registrar shall treat the Person in whose name any Trust
Securities Certificate shall be registered in the Securities Register as the
owner of such Trust Securities Certificate for the purpose of receiving
Distributions (subject to Section 4.01(d)) and for all other purposes
whatsoever, and neither the Trustees nor the Securities Registrar shall be bound
by any notice to the contrary.
Section 5.07 Access to List of Securityholders' Names and Addresses.
The Administrative Trustees shall furnish or cause to be furnished to (i) the
Depositor and the Property Trustee semi-annually, not later than June 1 and
December 1 in each year, and (ii) the Depositor or the Property Trustee, as the
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case may be, within 15 days after receipt by any Administrative Trustee of a
request therefor from the Depositor or the Property Trustee, as the case may be,
in writing, a list, in such form as the Depositor or the Property Trustee, as
the case may be, may reasonably require, of the names and addresses of the
Securityholders as of a date not more than 15 days prior to the time such list
is furnished. If three or more Securityholders or one or more Holders of Trust
Securities Certificates evidencing not less than 25% of the outstanding
Liquidation Amount apply in writing to the Administrative Trustees, and such
application states that the applicants desire to communicate with other
Securityholders with respect to their rights under this Trust Agreement or under
the Trust Securities Certificates and such application is accompanied by a copy
of the communication that such applicants propose to transmit, then the
Administrative Trustees shall, within five Business Days after the receipt of
such application, afford such applicants access during normal business hours to
the current list of Securityholders. Each Holder, by receiving and holding a
Trust Securities Certificate, shall be deemed to have agreed not to hold either
the Depositor or the Administrative Trustees accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.08 Maintenance of Office or Agency. The Administrative
Trustees shall maintain in the Borough of Manhattan, New York, an office or
offices or agency or agencies where Preferred Securities Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities Certificates
may be served. The Administrative Trustees initially designate The Chase
Manhattan Bank, 450 West 33rd Street, New York, New York 10001, as its principal
agency for such purposes. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change in the location
of the Securities Register or any such office or agency.
Section 5.09 Appointment of Paying Agent. The Paying Agent shall make
Distributions and other payments provided hereby to Securityholders from the
Payment Account and shall report the amounts of such Distributions and payments
to the Property Trustee and the Administrative Trustees. Any Paying Agent shall
have the revocable power to withdraw funds from the Payment Account for the
purpose of making the Distributions and payments provided hereby. The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Property Trustee, and it may
choose any co-paying agent that is acceptable to the Administrative Trustees and
the Depositor. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees and the
Depositor. In the event that a Paying Agent shall resign or be removed, the
Administrative Trustees shall appoint a successor that is acceptable to the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
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held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 5.10 Ownership of Common Securities by Depositor. On the Issue
Date, the Depositor shall acquire, and thereafter retain, beneficial and record
ownership of the Common Securities. Any attempted transfer of the Common
Securities, except for transfers by operation of law, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates
(including the payment of principal of and interest on the Book-Entry
Preferred Securities and the giving of instructions or directions to
Owners of Book-Entry Preferred Securities) as the sole Holder of
Book-Entry Preferred Securities and shall have no obligations to the
Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
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Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i) the
Depositor advises the Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Preferred Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, then the Administrative Trustees shall notify the Clearing Agency and
Holders of the Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees or
any one of them shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Securityholders.
The Definitive Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
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as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Indenture, and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of at least 66-2/3% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of 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
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the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Preferred Securities,
whether by way of amendment to this Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least 66-2/3% in Liquidation Amount of the Outstanding
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.08 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which Preferred
Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66-2/3% of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
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be voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or agent of the Trust as the
Administrative Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if more than one of them shall be present at such meeting
in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
Section 6.06 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding at least 66-2/3% of all outstanding Trust Securities
entitled to vote in respect of such action (or such other proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing (based upon their Liquidation Amount).
Section 6.07 Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
on the Trust Securities in respect of which a record date is not otherwise
provided for in this Trust Agreement, or for the purpose of any other action,
the Administrative Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
Section 6.08 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders in person or by an agent appointed
in writing; and, except as otherwise expressly provided herein, such action
shall become effective when such instrument or instruments are delivered to the
Administrative Trustees. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Securityholders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Trust Agreement and (subject to Section 8.01)
conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
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acknowledgements of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders of Trust
Securities and the Administrative Trustees or among such Securityholders or
Trustees with respect to the authenticity, validity or binding nature of any
request, demand, authorization, direction, consent, waiver or other Act of such
Securityholder or Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.
Section 6.09 Inspection of Records. Upon reasonable notice to the
Trustees, the records of the Trust shall be open to inspection by
Securityholders during normal business hours for any purpose reasonably related
to such Securityholder's interest as a Securityholder.
ARTICLE VII
Representations and Warranties of the Trustees
Section 7.01 Representations and Warranties of the Trustees. The Bank,
the Delaware Bank, the Property Trustee and the Delaware Trustee, each on behalf
of and as to itself, hereby represents and warrants for the benefit of the
Depositor and the Securityholders that:
(a) the Bank is a banking corporation or trust company duly organized,
validly existing and in good standing under the laws of the State of New York,
and the Delaware Trustee is a banking corporation or trust company duly
organized, validly existing and in good standing under the laws of the State of
Delaware;
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(b) each of the Bank and the Delaware Bank has full corporate power,
authority and legal right to execute, deliver and perform their obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Bank and constitutes the valid
and legally binding agreement of each of the Bank and the Delaware Bank,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by each of the Bank and the
Delaware Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank, the Property Trustee, the Delaware
Bank and the Delaware Trustee and do not require any approval of stockholders of
the Bank or the Delaware Bank and such execution, delivery and performance will
not (i) violate the Bank's or the Delaware Bank's Charter or By-laws, or (ii)
violate any law, governmental rule or regulation of the United States or the
State of New York or Delaware, as the case may be, governing the banking or
trust powers of the Bank and the Property Trustee or the Delaware Bank and the
Delaware Trustee, or any order, judgment or decree applicable to the Bank, the
Property Trustee, the Delaware Bank or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the Bank or the
Delaware Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Bank, the Property Trustee, the Delaware Bank or the
Delaware Trustee (as appropriate in context) contemplated herein or therein, nor
the issuance of the Trust Securities Certificates pursuant to this Trust
Agreement require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, New York or
Delaware law governing the banking or trust powers of the Bank or the Delaware
Bank.
ARTICLE VIII
The Trustees
Section 8.01 Certain Duties and Responsibilities.
(a) The rights, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
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Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section.
(b) All payments made by the Property Trustee in respect of the Trust
Securities shall be made only from the income and proceeds from the Trust
Property and only to the extent that there shall be sufficient income or
proceeds from the Trust Property to enable the Property Trustee to make payments
in accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the income and proceeds from
the Trust Property to the extent available for distribution to it as herein
provided and that the Trustees are not personally liable to it for any amount
distributable in respect of any Trust Security or for any other liability in
respect of any Trust Security. This Section 8.01(b) does not limit the liability
of the Trustees expressly set forth elsewhere in this Trust Agreement or, in the
case of the Property Trustee, in the Trust Indenture Act.
Section 8.02 Notice of Defaults. Within 90 days after the occurrence of
any default, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.08, notice of any default known to the Property
Trustee to the Securityholders, the Administrative Trustees and the Depositor,
unless such default shall have been cured or waived. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
Section 8.03 Certain Rights of Property Trustee. Subject to
the provisions of Section 8.01 and except as provided by law:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(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
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to be taken. The Property Trustee shall take such action, or
refrain from taking such action, as the Property Trustee shall be
instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does
not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such
reasonably shorter period of time set forth in such notice (which
to the extent practicable shall not be less than two Business
Days), it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or
attorney appointed by it hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
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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
(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.
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(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity authorized to conduct a trust business and with its principal place
of business in the State of Delaware that shall act through one or more persons
authorized to bind such entity.
Section 8.08 Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. To the extent permitted by the Trust Indenture Act, the Property
Trustee shall not be deemed to have a conflicting interest by virtue of being
trustee under (i) the Guarantee, (ii) the amended and restated trust agreement
dated as of January 1, 1997, among the Company, as Depositor, Chase Manhattan
Bank Delaware, as Delaware Trustee, the Administrative Trustees named therein
and The Chase Manhattan Bank, as Property Trustee, relating to Gulf Power
Capital Trust I, and (iii) the guarantee agreement dated as of January 1, 1997,
between the Company, as guarantor, and The Chase Manhattan Bank, as trustee,
relating to Gulf Power Capital Trust I.
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
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co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged, and delivered
by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(i) The Trust Securities shall be executed, authenticated and
delivered and all rights, powers, duties, and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustees
hereunder, shall be exercised, solely by the Trustees.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any
property covered by such appointment shall be conferred or imposed upon
and exercised or performed by the Property Trustee or by the Property
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall
be incompetent or unqualified to perform such act, in which event such
rights, powers, duties, and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor,
may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case an Indenture Event
of Default has occurred and is continuing, the Property Trustee shall
have power to accept the resignation of, or remove, any such co-trustee
or separate trustee without the concurrence of the Depositor. Upon the
written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided
in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property
Trustee, or any other such trustee hereunder.
(v) The Trustees shall not be liable by reason of any act of a
co-trustee or separate trustee.
(vi) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
Section 8.10 Resignation and Removal; Appointment of Successor. No
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resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Relevant Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Relevant
Trustee in accordance with the applicable requirements of Section 8.11.
The Relevant Trustee may resign at any time by giving written notice
thereof to the Securityholders. If the instrument of acceptance by a successor
Relevant Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation,
the resigning Relevant Trustee may petition any court of competent jurisdiction
for the appointment of a successor Relevant Trustee.
Unless an Indenture Event of Default shall have occurred and be
continuing, the Relevant Trustee may be removed at any time by Act of the Holder
of the Common Securities. If an Indenture Event of Default shall have occurred
and be continuing, the Relevant Trustee may be removed at such time by Act of
the Securityholders of a majority in Liquidation Amount of the Preferred
Securities Certificates, delivered to the Relevant Trustee (in its individual
capacity and on behalf of the Trust).
If the Relevant Trustee shall resign, be removed or become incapable of
continuing to act as Trustee at a time when no Indenture Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and the
retiring Relevant Trustee shall comply with the applicable requirements of
Section 8.11. If the Relevant Trustee shall resign, be removed or become
incapable of continuing to act as the Relevant Trustee at a time when an
Indenture Event of Default shall have occurred and be continuing, the Holders of
Preferred Securities, by Act of the Securityholders of a majority in Liquidation
Amount of the Preferred Securities then outstanding delivered to the retiring
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or
Trustees, and the Relevant Trustee shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
in accordance with this Section 8.10 and accepted appointment in the manner
required by Section 8.11, any Securityholder who has been a Securityholder of
Trust Securities for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The retiring Relevant Trustee shall give notice of each resignation and
each removal of the Relevant Trustee, and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
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the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Junior Subordinated Notes
or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment for
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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,
1998, if required by Section 313(a) of the Trust Indenture Act, the Property
Trustee shall transmit a brief report dated as of such May 15 with respect to
any of the events specified in such Section 313(a) that may have occurred since
the later of the date of this Trust Agreement or the preceding May 15.
(b) The Property Trustee shall transmit to Securityholders the reports
required by Section 313(b) of the Trust Indenture Act at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the manner
and to the Persons required by Sections 313(c) and (d) of the Trust Indenture
Act.
Section 8.15 Reports to the Property Trustee. The Depositor and the
Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and, within 120 days after the end of each
fiscal year of the Depositor, the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form and in the manner required by
Section 314 of the Trust Indenture Act.
Section 8.16 Evidence of Compliance with Conditions Precedent. Each of
the Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Trust Agreement that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given pursuant to Section 314(c)(1) of the
Trust Indenture Act shall comply with Section 314(e) of the Trust Indenture Act.
Section 8.17 Number of Trustees.
(a) The number of Trustees shall initially be four, provided that the
Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
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(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this 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
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
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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
C 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 C 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.
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
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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.
(b) In connection with a distribution of the Junior Subordinated Notes,
each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Junior
Subordinated Notes as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution of
the Junior Subordinated Notes to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Notes in exchange for the Outstanding Trust Securities
Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will no longer
be deemed to be Outstanding, (ii) certificates representing a Like Amount of
Junior Subordinated Notes will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Junior
Subordinated Notes, accruing interest at the rate provided for in the Junior
Subordinated Notes from the last Distribution Date on which a Distribution was
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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.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if an Indenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person to whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of 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.
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Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement,
provided, however, that any such amendment shall not adversely affect in any
material respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes at any time that
any Trust Securities are outstanding; provided, however, that, except in the
case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Trust Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as amended.
(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.
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(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.
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, (ii) in the case of communications via United States mail
or facsimile transmission to the Common Securityholder or the Depositor, to Gulf
Power Company, One Energy Place, Pensacola, Florida 32520-0102, Attention:
Treasurer, Facsimile No. (850) 444-6026, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303-0102,
Attention: Corporate Finance Department, Facsimile No. (404) 506-0674 and (iii)
in the case of communications via hand delivery to the Common Securityholder or
45
<PAGE>
the Depositor, to Gulf Power Company, 500 Bayfront Parkway, Pensacola, Florida
32501, Attention: Treasurer, with a copy to Southern Company Services, Inc., 270
Peachtree Street, N.W., Atlanta, Georgia 30303-0102, 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 II c/o Treasurer. Such notice, demand or other communication
to or upon the Trust or the Trustees shall be deemed to have been sufficiently
given or made only upon actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trustee Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
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<PAGE>
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.
47
<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:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Name:
Title:
Linda Malone,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
<PAGE>
Exhibit A
[INTENTIONALLY RESERVED]
Exhibit A - Page 1
<PAGE>
EXHIBIT B
[INTENTIONALLY RESERVED]
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Gulf Power Capital Trust II
Common Securities
(liquidation amount $25 per Common Security)
Gulf Power Capital Trust II, 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, 1998, 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 ___________, ____.
Gulf Power Capital Trust II
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
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of January 1, 1998, between Gulf Power Company, a Maine corporation (the
"Company"), and Gulf Power Capital Trust II, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Junior Subordinated Notes from the Company and to
issue and sell Gulf Power Capital Trust II 7.00 % 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, 1998 as the same may be
amended from time to time (the "Trust Agreement"); and
WHEREAS, the Company is the issuer of the Junior Subordinated Notes.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company and the Trust
hereby agree as follows:
ARTICLE I
Section 1.01. Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment, when and as due, of any and
all Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to holders of any Preferred
Securities or other similar interests in the Trust the amounts due such holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This Agreement is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 1.02. Term of Agreement. This Agreement shall terminate and be
of no further force and effect upon the date on which there are no Beneficiaries
remaining; provided, however, that this Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any holder of
Preferred Securities or any Beneficiary must restore payment of any sums paid
under the Preferred Securities, under any Obligation, under the Guarantee
Agreement dated the date hereof by the Company and The Chase Manhattan Bank, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
EXHIBIT D - Page 1
<PAGE>
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.
Exhibit D - Page 2
<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 II
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
One Energy Place
Pensacola, Florida 32520-0102
Facsimile No.: (850) 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.
Exhibit D - Page 3
<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 II
By:
Linda Malone, as
Administrative Trustee
<PAGE>
EXHIBIT E
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Gulf Power
Capital Trust II or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), any transfer, pledge, or other use hereof for
value or otherwise by or to any person is wrongful inasmuch as the registered
owner thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
---------
P-1 CUSIP NO. 402476204
Certificate Evidencing Preferred Securities
of
Gulf Power Capital Trust II
7.00% Cumulative Quarterly Income Preferred Securities
(Liquidation amount $25 per Preferred Security)
Gulf Power Capital Trust II, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of _____ MILLION (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Gulf Power Capital Trust II 7.00%
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
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, 1998, 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, 1998, 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
Exhibit E - Page 1
<PAGE>
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 ________, ____.
GULF POWER CAPITAL TRUST II
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)
EXHIBIT 4.8
GUARANTEE AGREEMENT
Between
Gulf Power Company
(as Guarantor)
and
The Chase Manhattan Bank
(as Trustee)
dated as of
January 1, 1998
<PAGE>
<TABLE>
<CAPTION>
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)
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.
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<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.........................................................................4
SECTION 2.05. Evidence of Compliance with Conditions Precedent....................................................5
SECTION 2.06. Events of Default; Waiver...........................................................................5
SECTION 2.07. Event of Default; Notice............................................................................5
SECTION 2.08. Conflicting Interests...............................................................................5
ARTICLE III.......................................................................................................6
SECTION 3.01. Powers and Duties of the Trustee....................................................................6
SECTION 3.02. Certain Rights of Trustee...........................................................................7
</TABLE>
ii
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<TABLE>
<CAPTION>
<S> <C>
SECTION 3.03. Compensation; Fees; Indemnity.......................................................................9
ARTICLE IV........................................................................................................9
SECTION 4.01. Trustee; Eligibility................................................................................9
SECTION 4.02. Appointment, Removal and Resignation of Trustee....................................................10
ARTICLE V........................................................................................................11
SECTION 5.01. Guarantee..........................................................................................11
SECTION 5.02. Waiver of Notice and Demand........................................................................11
SECTION 5.03. Obligations Not Affected...........................................................................11
SECTION 5.04. Rights of Holders..................................................................................12
SECTION 5.05. Guarantee of Payment...............................................................................12
SECTION 5.06. Subrogation........................................................................................13
SECTION 5.07. Independent Obligations............................................................................13
ARTICLE VI.......................................................................................................13
SECTION 6.01. Subordination......................................................................................13
ARTICLE VII......................................................................................................14
SECTION 7.01. Termination........................................................................................14
</TABLE>
iii
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<TABLE>
<CAPTION>
<S> <C>
ARTICLE VIII.....................................................................................................14
SECTION 8.01. Successors and Assigns.............................................................................14
SECTION 8.02. Amendments.........................................................................................14
SECTION 8.03. Notices............................................................................................14
SECTION 8.04. Benefit............................................................................................16
SECTION 8.05. Interpretation.....................................................................................16
SECTION 8.06. Governing Law......................................................................................16
iv
</TABLE>
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of January
1, 1998, 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 II,
a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of January 1, 1998, 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 20, 1998 $45,000,000 aggregate liquidation amount of its 7.00%
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.
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,
<PAGE>
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to perform any of
its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid distributions that are required to be paid on such Preferred Securities
but if and only if and to the extent the Trust has funds legally and immediately
available therefor to make such payment; (ii) the redemption price, including
all accrued and unpaid distributions to the date of redemption (the "Redemption
Price"), with respect to the Preferred Securities called for redemption by the
Trust but if and only if and to the extent that the Trust has funds legally and
immediately available therefor sufficient to make such payment; and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Junior Subordinated Notes to
the holders of Trust Securities or the redemption of all of the Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on the Preferred Securities to the date of
payment, to the extent the Trust has funds legally and immediately available
therefor, and (b) the amount of assets of the Trust remaining available for
distribution to Holders in liquidation of the Trust (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as of January
1, 1997, between the Guarantor, as Subordinated Note Issuer, and The Chase
Manhattan Bank, as trustee, as heretofore supplemented and as further
supplemented by the Third Supplemental Indenture dated as of January 1, 1998, 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
2
<PAGE>
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any senior trust officer, trust officer
or assistant trust officer or any other officer of the Corporate Trust
Department of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"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.
3
<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 or at
any time the Trustee is the Securities Registrar under the Trust Agreement. 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, 1998, 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.
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SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a Majority in
liquidation amount of Preferred Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07. Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of an Event
of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Trustee, unless such defaults have
been cured before the giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any Event of
Default unless the Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
SECTION 2.08. Conflicting Interests. The Trust Agreement, the amended
and restated trust agreement dated as of January 1, 1997, among the Guarantor,
as Depositor, Chase Manhattan Bank Delaware, as Delaware Trustee, the
Administrative Trustees named therein and The Chase Manhattan Bank, as Property
Trustee, relating to Gulf Power Capital Trust I and the guarantee agreement
dated as of January 1, 1997, between the Guarantor, as guarantor, and The Chase
Manhattan Bank, as trustee, relating to Gulf Power Capital Trust I 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.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01. Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for the
benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of 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;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in liquidation amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee Agreement, the
Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Guarantor;
(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
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may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(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.
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SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by the Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold the Trustee harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The provisions of this Section 3.03 shall survive the termination of this
Guarantee Agreement.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or 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.
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(b) If at any time the Trustee shall cease to be eligible to so act
under Section 4.01(a), the Trustee shall immediately resign in the manner and
with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a Successor
Trustee shall have been appointed or until its removal or resignation. The
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of 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.
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ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Guarantor
may have or assert against any Person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligation of the
Guarantor to make the Guarantee Payments under this Guarantee Agreement
shall in no way be affected or impaired by reason of the happening from time
to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Junior Subordinated Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
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(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.
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
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acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor, including
the Junior Subordinated Notes, except those obligations or liabilities made pari
passu or subordinate by their terms, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and with
any guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference securities of any Affiliate of the Guarantor, and (iii)
senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the Redemption Price
of all Preferred Securities, (ii) 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.
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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.
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 by first class mail or by facsimile, 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
One Energy Place
Pensacola, Florida 32520-0102
Facsimile No.: (850) 444-6026
Attention: Treasurer
with copy to:
Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Facsimile No.: (404) 506-0674
Attention: Corporate Finance Department
(b) if given to the Guarantor by hand delivery, to the address set
forth below or such other address as the Guarantor may give notice of to the
Trustee and the Holders:
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Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Attention: Treasurer
with copy to:
Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Facsimile No.: (404) 506-0674
Attention: Corporate Finance Department
(c) 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 II
c/o The Chase Manhattan Bank
450 W. 33rd Street
New York, New York 10001
Attn: Corporate Trustee Administration Department
(d) if given to any Holder, at the address set forth on the books
and records of the Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and, subject to Section 3.01(a), is not
separately transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement, unless
the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them
in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles
and Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE 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. 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.
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18
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:
Title:
