Exhibit 4.5
GULF POWER CAPITAL TRUST IV
AMENDED AND RESTATED
TRUST AGREEMENT
among
GULF POWER COMPANY, as Depositor,
JPMORGAN CHASE BANK, as Property Trustee,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION, as Delaware Trustee,
and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ BOSTON,
as Administrative Trustees
Dated as of December 1, 2002
GULF POWER CAPITAL TRUST IV
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Section Trust Agreement 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) ........................................11.10
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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 OF CONTENTS
Page
Article I - Defined Terms.........................................................................................1
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Section 1.01. Definitions...............................................................................1
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Article II - Establishment of the Trust..........................................................................11
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Section 2.01. Name.....................................................................................11
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Section 2.02. Offices of the Trustees; Principal Place of Business.....................................11
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Section 2.03. Initial Contribution of Trust Property; Organizational Expenses..........................12
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Section 2.04. Issuance of the Preferred Securities.....................................................12
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Section 2.05. Subscription and Purchase of Junior Subordinated Notes; Issuance of the ..Common
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Securities12
Section 2.06. Declaration of Trust.....................................................................12
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Section 2.07. Authorization to Enter into Certain Transactions.........................................13
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Section 2.08. Assets of Trust..........................................................................18
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Section 2.09. Title to Trust Property..................................................................18
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Section 2.10. Mergers and Consolidations of the Trust..................................................18
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Article III - Payment Account....................................................................................19
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Section 3.01. Payment Account..........................................................................19
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Article IV - Distributions; Redemption...........................................................................20
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Section 4.01. Distributions............................................................................20
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Section 4.02. Distribution Rate........................................................................21
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Section 4.03. Distribution Periods.....................................................................23
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Section 4.04. Redemption...............................................................................23
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Section 4.05. Subordination of Common Securities and Distributions.....................................24
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Section 4.06. Payment Procedures.......................................................................25
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Section 4.07. Tax Returns and Reports..................................................................25
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Article V - Trust Securities Certificates........................................................................25
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Section 5.01. Initial Ownership........................................................................25
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Section 5.02. The Trust Securities Certificates........................................................26
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Section 5.03. Authentication of Trust Securities Certificates..........................................26
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Section 5.04. Registration of Transfer and Exchange of Preferred Securities Certificates...............26
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Section 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.......................27
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Section 5.06. Persons Deemed Securityholders...........................................................27
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Section 5.07. Access to List of Securityholders' Names and Addresses...................................28
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Section 5.08. Maintenance of Office or Agency..........................................................28
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Section 5.09. Appointment of Paying Agent..............................................................28
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Section 5.10. Ownership of Common Securities by Depositor..............................................29
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Section 5.11. Book-Entry Preferred Securities Certificates; Common Securities............................
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Certificate..............................................................................29
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Section 5.12. Notices to Clearing Agency...............................................................30
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Section 5.13. Definitive Preferred Securities Certificates.............................................30
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Section 5.14. Rights of Securityholders................................................................31
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Article VI - Acts of Securityholders' Meetings; Voting...........................................................31
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Section 6.01. Limitations on Voting Rights.............................................................31
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Section 6.02. Notice of Meetings.......................................................................33
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Section 6.03. Meetings of Preferred Securityholders....................................................33
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Section 6.04. Voting Rights............................................................................33
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Section 6.05. Proxies, etc.............................................................................34
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Section 6.06. Securityholder Action by Written Consent.................................................34
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Section 6.07. Record Date for Voting and Other Purposes................................................34
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Section 6.08. Acts of Securityholders..................................................................34
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Section 6.09. Inspection of Records....................................................................35
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Article VII -Representations and Warranties of the Trustees......................................................36
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Section 7.01. Representations and Warranties of the Trustees...........................................36
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Article VIII - The Trustees......................................................................................37
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Section 8.01. Certain Duties and Responsibilities......................................................37
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Section 8.02. Notice of Defaults.......................................................................37
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Section 8.03. Certain Rights of Property Trustee.......................................................37
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Section 8.04. Not Responsible for Recitals or Issuance of Securities...................................39
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Section 8.05. May Hold Securities......................................................................39
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Section 8.06. Compensation; Fees; Indemnity............................................................39
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Section 8.07. Trustees Required; Eligibility...........................................................39
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Section 8.08. Conflicting Interests....................................................................40
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Section 8.09. Co-Trustees and Separate Trustee.........................................................40
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Section 8.10. Resignation and Removal; Appointment of Successor........................................42
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Section 8.11. Acceptance of Appointment by Successor...................................................43
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Section 8.12. Merger, Conversion, Consolidation or Succession to Business..............................43
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Section 8.13. Preferential Collection of Claims Against Depositor or Trust.............................44
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Section 8.14. Reports by Property Trustee..............................................................44
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Section 8.15. Reports to the Property Trustee..........................................................45
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Section 8.16. Evidence of Compliance with Conditions Precedent.........................................45
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Section 8.17. Number of Trustees.......................................................................45
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Section 8.18. Delegation of Power......................................................................45
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Section 8.19. Enforcement of Rights of Property Trustee by Securityholders.............................46
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Section 8.20. Delaware Trustee.........................................................................46
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Article IX - Termination and Liquidation.........................................................................47
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Section 9.01. Termination Upon Expiration Date.........................................................47
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Section 9.02. Early Termination........................................................................47
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Section 9.03. Termination..............................................................................47
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Section 9.04. Liquidation..............................................................................48
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Section 9.05. Bankruptcy...............................................................................49
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Section 9.06. Certificate of Cancellation..............................................................49
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Article X - Remarketing Procedures...............................................................................49
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Section 10.01 Election of Remarket.....................................................................49
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Section 10.02 Notice of Election.......................................................................50
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Section 10.03 Determination of Distribution Rate.......................................................51
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Article XI - Miscellaneous Provisions............................................................................52
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Section 11.01. Guarantee by the Depositor...............................................................52
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Section 11.02. Limitation of Rights of Securityholders..................................................52
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Section 11.03. Amendment................................................................................53
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Section 11.04. Separability.............................................................................54
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Section 11.05. Governing Law............................................................................54
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Section 11.06. Successors...............................................................................54
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Section 11.07. Headings.................................................................................54
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Section 11.08. Notice and Demand........................................................................54
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Section 11.09. Agreement Not to Petition................................................................55
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Section 11.10. Conflict with Trust Indenture Act........................................................56
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EXHIBIT A - Form of Preferred Security............................................................................1
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EXHIBIT B - Agreement as to Expenses and Liabilities..............................................................1
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EXHIBIT C - Form of Common Security...............................................................................1
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AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of
December 1, 2002, by and among (i) Gulf Power Company, a Maine corporation (the
"Depositor" or the "Company"), (ii) JPMorgan Chase 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 USA, National
Association (successor to Chase Manhattan Bank Delaware), a national banking
association duly organized under the laws of the United States of America, as
Delaware trustee (the "Delaware Trustee" and, in its separate corporate capacity
and not in its capacity as Delaware Trustee, the "Delaware Bank"), (iv) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, an individual, and ▇▇▇▇▇ 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 Statutory Trust Act by the entering into that certain Trust Agreement,
dated as of April 25, 2001 (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 April 25, 2001; and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the addition of the Bank, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
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:
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:
(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 11.09.
"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, (iii) a day on which the
Corporate Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business or (iv) a day on which the New York Stock Exchange
is closed.
"Calculation Agent" means JPMorgan Chase Bank, its successors
and assigns, or such other bank or trust company appointed to such capacity by
the Company and the Administrative Trustees.
"Calculation Agent Agreement" means the agreement among the
Company, the Trust and JPMorgan Chase Bank, as calculation agent, dated as of
December 13, 2002.
"Certificate Depository Agreement" means the agreement among
the Trust, the Property Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated as of December 11, 2002, 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 Exchange Act. The Depository
Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, 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 $1,000 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 Statutory 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.
"Distribution Payment Date" means each day on which
Distributions are payable determined based on the prevailing Distribution Rate.
"Distribution Period" means each semiannual period in a Fixed
Rate Period and each quarterly period in a Floating Rate Period for which
Distributions are payable.
"Distribution Rate" means the rate at which Distributions will
accrue in respect of any Distribution Period, as determined pursuant to the
terms of this Trust Agreement, whether by Remarketing or otherwise.
"Distributions" means amounts payable in respect of the
Trust Securities as provided in Section 4.01.
"Election Date" means a date that is no later than the fifth
Business Day prior to the proposed Remarketing Date.
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expense Agreement" means the Agreement as to Expenses and
Liabilities between the Company and the Trust, substantially in the form
attached as Exhibit B, as amended from time to time.
"Extension Period" has the meaning specified in Section
4.01(d).
"Fixed Rate" means the Distribution Rate during a Fixed Rate
Period as determined by a Remarketing.
"Fixed Rate Period" means the Initial Fixed Rate Period and
each period set by the Company and the Administrative Trustees during a
Remarketing for which the Fixed Rate determined in such Remarketing will apply;
provided, however, that a Fixed Rate Period must be for a duration of at least
six months, may not extend beyond the stated maturity of the Junior Subordinated
Notes and may not end on a day other than a day immediately preceding a
Distribution Payment Date.
"Floating Rate" means 3-month LIBOR plus 3.49% reset
quarterly.
"Floating Rate Determination Date" means the second London
Business Day immediately preceding the first day of the relevant Distribution
Period in the Floating Rate Period.
"Floating Rate Period" means any period during which a
Floating Rate is in effect.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Company and JPMorgan Chase Bank, as Guarantee Trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"Indenture Event of Default" means an "Event of Default" as
defined in the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as
defined in the Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated
Indenture.
"Initial Distribution Rate" means 5.60% per annum.
"Initial Fixed Rate Period" means the Issue Date through
November 29, 2007.
"Issue Date" means the date of the delivery of the Trust
Securities.
"Junior Subordinated Notes" means the $41,238,000 aggregate
principal amount of the Depositor's Series E Junior Subordinated Notes due
November 30, 2042, 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 $1,000 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.
"London Business Day" means a day that is a Business Day and a
day on which dealings in deposits in U.S. dollars are transacted, or with
respect to any future date are expected to be transacted, in the London
interbank market.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of
the examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's opinion, to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Trustees or the Depositor, but not an employee
of the Trust or the Trustees, and who shall be reasonably acceptable to the
Property Trustee. Any Opinion of Counsel pertaining to federal income tax
matters may rely on published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities,
means, as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore
cancelled by the Administrative Trustees or
delivered to the Administrative Trustees for cancellation;
(ii) Preferred Securities for whose payment or
redemption money in the necessary amount has been theretofore
deposited with the Property Trustee or any Paying Agent for
the Holders of such Preferred Securities; provided that if
such Preferred Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Trust
Agreement; and
(iii) Preferred Securities in exchange for or in lieu
of which other Preferred Securities have been authenticated
and delivered pursuant to this Trust Agreement;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, the Holder of the Common
Securities, any Trustee or any Affiliate of the Depositor or any Trustee shall
be disregarded and deemed not to be Outstanding, except that (a) in determining
whether any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
which such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Depositor, the Holder of the Common Securities, one
or more Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.09 and shall initially be the Property Trustee.
"Payment Account" means a segregated non-interest-bearing
corporate trust account maintained by the Property Trustee for the benefit of
the Securityholders in which all amounts paid in respect of the Junior
Subordinated Notes will be held and from which the Property Trustee shall make
payments to the Securityholders in accordance with Section 4.01.
"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 Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities, substantially in the
form attached as Exhibit A.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Trust having a Liquidation Amount of $1,000 and
having rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.
"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.
"Record Date" means the opening of business on the Business
Day immediately preceding the relevant Distribution Payment Date.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for
redemption of any Trust Security, the Liquidation Amount of such Trust Security,
plus accrued and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section
8.10.
"Remarketing" means the conduct by which a Fixed Rate shall be
determined in accordance with the Remarketing Procedures.
"Remarketing Agent" means ▇▇▇▇▇▇ Brothers Inc., its
successors or assigns, or such other remarketing agent appointed to such
capacity by the Company and the Administrative Trustees.
"Remarketing Agreement" means the agreement among the Company,
the Trust and ▇▇▇▇▇▇ Brothers Inc., as remarketing agent, dated as of December
13, 2002.
"Remarketing Date" means any Business Day no later than the
third Business Day prior to any Remarketing Settlement Date.
"Remarketing Procedures" means those procedures set forth in
Article X.
"Remarketing Settlement Date" means (i) the first Business Day
of the next Distribution Period following the expiration of the Initial Fixed
Rate Period, (ii) any Distribution Payment Date during a Floating Rate Period or
(iii) any Distribution Payment Date during a time in which Preferred Securities
are redeemable in a Fixed Rate Period subsequent to the Initial Fixed Rate
Period.
"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; and any
such Person who is a beneficial owner within the meaning of the Delaware
Statutory 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 Fifth Supplemental
Indenture, dated as of December 13, 2002, by and between the Depositor and the
Indenture Trustee.
"Telerate Page 3750" means the display designated on page 3750
on Moneyline Telerate (or such other page as may replace the 3750 page on the
service or such other service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits).
"3-month LIBOR" means for any Floating Rate Determination
Date, the offered rate in U.S. dollars having an index maturity of three months
for a period commencing on the second London Business Day immediately following
the Floating Rate Determination Date in amounts of not less than $1,000,000, as
such rate appears on Telerate Page 3750 or a successor reporter of such rates
selected by the Calculation Agent and acceptable to the Company, at
approximately 11:00 a.m., London time, on the Floating Rate Determination Date.
"Trust" means the Delaware statutory trust continued hereby
and identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Amended and Restated Trust Agreement and any
modification, amendment or supplement, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this Amended and Restated Trust
Agreement and any such modification, amendment or supplement, respectively.
"Trustees" means the Persons identified as "Trustees" in the
preamble to this Trust Agreement solely in their capacities as Trustees of the
Trust formed and continued hereunder and not in their individual capacities, or
their successor in interest in such capacity, or any successor trustee appointed
as herein provided.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (i) the Junior Subordinated Notes, (ii)
any cash on deposit in, or owing to, the Payment Account, and (iii) all proceeds
and rights in respect of the foregoing and any other property and assets for the
time being held or deemed to be held by the Property Trustee pursuant to this
Trust Agreement.
"Trust Securities Certificate" means any one of the Common
Securities Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Underwriting Agreement" means the Underwriting Agreement,
dated December 5, 2002, 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 IV", 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 ▇▇▇ 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 JPMorgan Chase Bank, 4
New York Plaza, 15th Floor, New York, New York 10004, 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
c/o JPMorgan Chase Bank, 500 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road, Building 4 (3rd Floor),
Newark, Delaware 19713, Attn: Institutional Trust Services 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, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: Treasurer. The principal place of business of the Trust is c/o Gulf
Power Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. 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 40,000 Preferred Securities
having an aggregate Liquidation Amount of $40,000,000, against receipt of the
aggregate purchase price of such Preferred Securities of $39,987,200 which
amount the Administrative Trustees shall promptly deliver to the Property
Trustee.
Section 2.05. Subscription and Purchase of Junior
Subordinated Notes; Issuance of the Common
Securities
-------------------------------------------
Contemporaneously with the execution and delivery of this
Trust Agreement, the Administrative Trustees, on behalf of the Trust, shall
execute and deliver to the Depositor Common Securities Certificates, registered
in the name of the Depositor, in an aggregate amount of 1,238 Common Securities
having an aggregate Liquidation Amount of $1,238,000 against payment by the
Depositor of such amount. Contemporaneously therewith, the Administrative
Trustees, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Junior Subordinated Notes, registered in the name of the Property
Trustee, on behalf of the Trust and the Holders, and having an aggregate
principal amount equal to $41,238,000, and, in satisfaction of the purchase
price for such Junior Subordinated Notes, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the sum of $41,225,200.
Section 2.06. Declaration of Trust
The exclusive purposes and functions of the Trust are (i) to issue and
sell the Trust Securities and use the proceeds from such sale to acquire the
Junior Subordinated Notes, and (ii) to engage in those activities necessary,
incidental, appropriate or convenient thereto. The Depositor hereby appoints
each of the Bank, the Delaware Bank, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ 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 Statutory Trust Act.
Section 2.07. Authorization to Enter into Certain
Transactions
The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in paragraph (c) of this Section, and in accordance with the following
paragraphs (a) and (b), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(a) As among the Trustees, the Administrative Trustees, acting
singly or jointly, shall have the exclusive power, duty and authority to act on
behalf of the Trust with respect to the following matters:
(i) to acquire the Junior Subordinated Notes with the
proceeds of the sale of the Trust Securities; provided,
however, the Administrative Trustees shall cause legal title
to all of the Junior Subordinated Notes to be vested in, and
the Junior Subordinated Notes to be held of record in the name
of, the Property Trustee for the benefit of the Trust and
Holders of the Trust Securities;
(ii) to give the Depositor and the Property Trustee
prompt written notice of the occurrence of any Special Event
(as defined in the Supplemental Indenture) and to take any
ministerial actions in connection therewith; provided, that
the Administrative Trustees shall consult with the Depositor
and the Property Trustee before taking or refraining to take
any ministerial action in relation to a Special Event;
(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 Section 314(a)(4) of the Trust Indenture Act,
which certificate may be executed by any Administrative
Trustee;
(viii) to take all actions and perform such duties as
may be required of the Administrative Trustees pursuant to the
terms of this Trust Agreement, the Remarketing Agreement and
the Calculation Agent 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 trust under the laws of the State of Delaware and
of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of
the Trust Securities or to enable the Trust to effect the
purposes for which the Trust has been created;
(x) to take all action necessary to cause all
applicable tax returns and tax information reports that are
required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf
of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Remarketing Agreement, the Calculation Agent Agreement, 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, if
necessary and 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, the Remarketing Agreement and the
Calculation Agent Agreement;
(xvi) to appoint a Paying Agent (subject to Section
5.09), authenticating agent, Remarketing Agent, Calculation
Agent and Securities Registrar in accordance with this Trust
Agreement;
(xvii) to elect to remarket the Preferred
Securities and determine the length of any Fixed
Rate Period;
(xviii) to register transfers of the Trust
Securities in accordance with this Trust Agreement;
(xix) 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
(xx) 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 a distribution issued by the
Administrative Trustees in accordance with the terms of this
Trust Agreement, engage in such ministerial activities as
shall be necessary or appropriate to effect promptly the
distribution pursuant to terms of this Trust Agreement of
Junior Subordinated Notes to Holders of Trust Securities;
(iii) subject to the terms hereof, exercise all of
the rights, powers and privileges of a holder of the Junior
Subordinated Notes under the Subordinated Indenture and, if an
Event of Default occurs and is continuing, shall enforce for
the benefit of, and subject to the rights of, the Holders of
the Trust Securities, its rights as holder of the Junior
Subordinated Notes under the Subordinated Indenture;
(iv) take all actions and perform such duties
as may be specifically required of the Property
Trustee pursuant to the terms of this Trust Agreement;
(v) take any Legal Action specifically required of
the Property Trustee pursuant to the terms of this Trust
Agreement which arises out of or in connection with an Event
of Default or the Property Trustee's duties and obligations
under this Trust Agreement, the Delaware Statutory 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 the State of
Delaware; and
(xiii) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
determine is necessary, appropriate, convenient or advisable
to protect and conserve the Trust Property for the benefit of
the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(c) So long as this Trust Agreement remains in effect, the
Trust (or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a grantor trust for United States federal
income tax purposes, (iv) incur any indebtedness for borrowed money, (v) take or
consent to any action that would result in the placement of a Lien on any of the
Trust Property, (vi) issue any securities other than the Trust Securities, or
(vii) have any power to, or agree to any action by the Depositor that would,
vary the investment (within the meaning of Treasury Regulation Section
301.7701-4(c)) of the Trust or of the Securityholders. The Trustees shall defend
all claims and demands of all Persons at any time claiming any Lien on any of
the Trust Property adverse to the interest of the Trust or the Securityholders
in their capacity as Securityholders.
(d) In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 under the
Securities Act of 1933, as amended, in relation to the
Preferred Securities, including any amendments thereto;
(ii) to determine the states in which to take
appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by or on behalf of the
Trust, and advise the Trustees of actions they must take on
behalf of the Trust, and prepare for execution and filing any
documents to be executed and filed by the Trust or on behalf
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,
if applicable;
(iv) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to
the registration of the Preferred Securities under Section
12(b) of the Exchange Act, including any amendments thereto;
(v) to negotiate the terms of the Underwriting
Agreement providing for the sale of the Preferred
Securities and to execute, deliver and perform the
Underwriting Agreement on behalf of the Trust;
(vi) to negotiate the terms of the
Remarketing Agreement providing for the retention
of the Remarketing Agent and the establishment of
certain procedures relating to Remarketings;
(vii) to negotiate the terms of the Calculation
Agent Agreement providing for the retention of the
Calculation Agent;
(viii) to elect to remarket the Preferred Securities
and determine the length of any Fixed Rate Period, including
redemption dates applicable to any Fixed Rate Period; and
(ix) 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 the Preferred Securities (including
any Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and privileges of
the Holders of the Trust Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation, or replacement, the Company has received an Opinion of Counsel to
the effect that (A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the Holders of
the Trust Securities (including any Successor Securities) in any material
respect, and (B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be required to
register as an investment company under the Investment Company Act of 1940, as
amended, and (viii) the Company guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by the
Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of Holders of 100% in Liquidation Amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be replaced by any other entity
or permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or the successor entity to be classified as other than a grantor
trust for federal income tax purposes.
Article III
Payment Account
Section 3.01. Payment Account
(a) On or prior to the Issue Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and an agent of the Property
Trustee shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with this Trust Agreement. All monies and
other property deposited or held from time to time in the Payment Account shall
be held by the Property Trustee in the Payment Account for the exclusive benefit
of the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal or interest on, and any other
payments or proceeds with respect to, the Junior Subordinated Notes. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
Article IV
Distributions; Redemption
Section 4.01. Distributions
(a) Distributions shall accrue from the Issue Date until the
Redemption Date. During the Initial Fixed Rate Period, Distributions will be
payable semiannually in arrears on May 30 and November 30 of each year,
commencing on May 30, 2003. During any Fixed Rate Period, other than the Initial
Fixed Rate Period, Distributions will be payable semiannually in arrears on
Distribution Payment Dates determined based on the Remarketing Date (if the
Preferred Securities are remarketed for a new Fixed Rate Period that begins on
May 30 or November 30, Distributions will be payable on May 30 and November 30
of each year, and if the Preferred Securities are remarketed for a new Fixed
Rate Period that begins on February 28 or August 30, Distributions will be
payable on February 28 and August 30 of each year). During any Floating Rate
Period, Distributions will be payable quarterly in arrears on February 28, May
30, August 30 and November 30 of each year.
(b) If any Distribution Payment Date with respect to a Fixed
Rate Period is not a Business Day, Distributions will be payable, without
interest, on the immediately succeeding Business Day, with the same force and
effect as if payment was made on the date such payment was originally payable.
If any Distribution Payment Date with respect to a Floating Rate Period is not a
Business Day, then Distributions will be payable on the immediately succeeding
Business Day and Distributions shall accrue to the actual payment date (except
for a Distribution Payment Date that coincides with the Redemption Date).
(c) The amount of Distributions payable on each Distribution
Payment Date relating to a Fixed Rate Period will be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions payable on
each Distribution Payment Date in respect of a Floating Rate Period will be
computed by multiplying the per annum Distribution Rate in effect for such
Distribution Period by a fraction, the numerator of which will be the actual
number of days in such Distribution Period (or portion thereof) (determined by
including the first day thereof and excluding the last thereof) and the
denominator of which will be 360, and multiplying the rate so obtained by
$1,000.
(d) The Company has the right under the Subordinated Indenture
to defer payments of interest on the Junior Subordinated Notes by extending the
interest period from time to time on the Junior Subordinated Notes (an
"Extension Period") which, if exercised, would defer Distributions on the
Preferred Securities during any Extension Period. The payment of such
Distributions, together with any interest thereon, will be distributed to the
Holders of Trust Securities as received at the end of any Extension Period.
(e) Distributions on the Trust Securities shall be made and
shall be deemed payable on each Distribution Payment Date only to the extent
that the Trust has legally and immediately available funds in the Payment
Account for the payment of such Distributions.
(f) 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.
Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued (including Additional Amounts, if any) and unpaid, and to
accrue (including Additional Amounts, if any), which were carried by such other
Trust Security.
Section 4.02. Distribution Rate
(a) During the Initial Fixed Rate Period, the
Distribution Rate shall be the Initial Distribution Rate.
(b) Prior to the expiration of the Initial Fixed Rate Period
and any subsequent Fixed Rate Period or a Distribution Period with respect to a
Floating Rate Period or a Distribution Period in a Fixed Rate Period during a
time in which the Preferred Securities are redeemable in such Fixed Rate Period,
the Company and the Administrative Trustees will have the option to remarket the
Preferred Securities to establish a new Fixed Rate for a new Fixed Rate Period
(to be in effect after the expiration of the then current Distribution Period).
If the Company and the Administrative Trustees elect to conduct a Remarketing of
the Preferred Securities for the purpose of establishing a new Fixed Rate for a
new Fixed Rate Period, the Trust shall, not less than 20 nor more than 35
Business Days prior to the related Election Date, notify the Clearing Agency,
the Property Trustee, the Indenture Trustee, the Calculation Agent and the
Remarketing Agent. If the Preferred Securities are not issued in global, fully
registered form to the Clearing Agency, such notice shall be delivered to the
Holders instead of the Clearing Agency. Such notice shall indicate the length of
the proposed new Fixed Rate Period, the proposed Remarketing Date and any
redemption provisions that will apply during such Fixed Rate Period. The Company
and the Administrative Trustees shall have the right to terminate a Remarketing
at any time prior to the Election Date by notice of such termination to the
Clearing Agency, the Remarketing Agent, the Property Trustee, the Indenture
Trustee and the Calculation Agent.
(c) If the Remarketing Agent has determined that it will be
able to remarket all Preferred Securities tendered or deemed tendered for
purchase in the Remarketing at a Fixed Rate and at a price of $1,000 per
Preferred Security, on such Remarketing Date, the Distribution Rate for the new
Fixed Rate Period will be the Fixed Rate determined by the Remarketing Agent,
which will be the rate per annum (rounded to the nearest one-thousandth (0.001)
of one percent per annum) which the Remarketing Agent determines, in its sole
judgment, to be the lowest Fixed Rate per annum, if any, that will enable it to
remarket all Preferred Securities tendered or deemed tendered for Remarketing at
a price of $1,000 per Preferred Security.
(d) If the Company and the Administrative Trustees do not
elect to remarket the Preferred Securities or have terminated a Remarketing or
the Remarketing Agent is unable to remarket all of the Preferred Securities
tendered or deemed tendered for a purchase price of $1,000 per Preferred
Security, the Distribution Rate shall be the Floating Rate and the new
Distribution Period shall be a Floating Rate Period.
(e) The Calculation Agent shall calculate the Floating
Rate as follows:
(1) The Calculation Agent shall calculate
the Floating Rate with respect to each Distribution Period in a Floating Rate
Period by determining 3-month LIBOR as of the Floating Rate Determination Date
preceding such Distribution Period, in which case, the Floating Rate will be
3-month LIBOR plus 3.49%.
(2) In the event no 3-month LIBOR
appears on Telerate Page 3750 as of approximately 11:00 a.m.,
London time, on a Floating Rate Determination Date,
the Calculation Agent shall request the principal London offices of each of four
major banks in the London interbank market selected by the Calculation Agent
(after consultation with the Company) to provide a quotation of the rate (the
"Rate Quotation") at which three-month deposits in amounts of not less than
$1,000,000 are offered by it to prime banks in the London interbank market, as
of approximately 11:00 a.m., London time, on such Floating Rate Determination
Date, that is representative of single transactions at such time (the
"Representative Amounts"). If at least two Rate Quotations are provided, the
Floating Rate will be the arithmetic mean of the Rate Quotations obtained by the
Calculation Agent, plus 3.49%
(3) In the event no 3-month LIBOR
appears on Telerate Page 3750 as of approximately 11:00 a.m., London
time, on a Floating Rate Determination Date and
there are fewer than two Rate Quotations, the Floating Rate will be the
arithmetic mean of the rates quoted at approximately 11:00 a.m., New York City
time, on such Floating Rate Determination Date, by three major banks in New York
City selected by the Calculation Agent (after consultation with the Company),
for loans in Representative Amounts in U.S. dollars to leading European banks,
having an index maturity of three months for a period commencing on the second
London Business Day immediately following such Floating Rate Determination Date,
plus 3.49%; provided, however, that if fewer than three banks selected by the
Calculation Agent are quoting such rates, the Floating Rate for the applicable
Floating Rate Period will be the Floating Rate in effect for the preceding
Floating Rate Period.
(f) If the Company elects to defer interest during a Fixed
Rate Period, Distributions will continue to accrue at the Fixed Rate until the
expiration of the Fixed Rate Period. Prior to the expiration of such Fixed Rate
Period and any Fixed Rate Period during the Extension Period, the Company and
the Administrative Trustees will have the option to remarket the Preferred
Securities for a new Fixed Rate Period (to take effect upon expiration of such
Fixed Rate Period). If the Company and the Trust do not remarket the Preferred
Securities, the Floating Rate during the Extension Period shall be determined as
provided herein, but shall not be less than the Fixed Rate for the Fixed Rate
Period just ended. If the Company elects to defer interest during a Floating
Rate Period, Distributions will continue to accrue at the applicable Floating
Rate, reset quarterly, subject to the right of the Company and the
Administrative Trustees to remarket the Preferred Securities prior to any
Distribution Payment Date in order to establish a new Fixed Rate for a new Fixed
Rate Period in accordance with the Remarketing Procedures.
Section 4.03. Distribution Periods
In accordance with Section 4.02 and the Remarketing
Procedures, the Company and the Trust may, prior to the expiration of a Fixed
Rate Period or prior to any Distribution Payment Date during a time in which the
Preferred Securities are redeemable in any Fixed Rate Period or prior to a
Distribution Payment Date with respect to a Floating Rate Period, elect to
remarket the Preferred Securities to establish a new Fixed Rate for a new Fixed
Rate Period. A Fixed Rate Period must be for a duration of at least six months,
may not extend beyond the stated maturity of the Junior Subordinated Notes and
may not end on a day other than a day immediately preceding a Distribution
Payment Date. If a new Fixed Rate for a new Fixed Rate Period is set in a
Remarketing, a new Fixed Rate Period shall commence following the expiration of
the then current Distribution Period. If a new Fixed Rate for a new Fixed Rate
Period is not set, for any reason, a Floating Rate Period and the Floating Rate
reset quarterly shall be in effect until the Company and the Administrative
Trustees remarket the Preferred Securities and set a new Fixed Rate for a new
Fixed Rate Period in accordance with the Remarketing Procedures.
Section 4.04. Redemption
(a) On the Redemption Date with respect to the Junior
Subordinated Notes, the Trust will be required to redeem the 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; and
(iv) 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 the 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 4.04(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 4.04(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 Date for the
related Distribution Payment Date. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all rights
of Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue at the
then applicable rate, from such Redemption Date originally established by the
Trust for such Preferred Securities to the date such Redemption Price is
actually paid.
(e) Payment of the Redemption Price on the Trust Securities
shall be made to the recordholders thereof as they appear on the Securities
Register for the Trust Securities on the relevant Record Date. In the event that
the Redemption Date is not a Distribution Payment Date, the record date shall be
the Redemption Date.
(f) Subject to the foregoing provisions of Section 4.04 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 4.05. Subordination of Common Securities and
Distributions
(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 Payment Date or
Redemption Date an Indenture Event of Default shall have occurred and be
continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution Periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or Redemption
Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of
Default, the Holder of Common Securities will be deemed to have waived any such
Event of Default under this Trust Agreement until the effect of all such Events
of Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
(c) Distributions on the Common Securities shall be payable at
the same Distribution Rates, on the same Distribution Payment Dates and for the
same Distribution Periods and to holders as of the same Record Date as for the
Preferred Securities.
Section 4.06. 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 Payment 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 4.07. Tax Returns and Reports
The Administrative Trustee(s) shall prepare (or cause to be
prepared), at the Depositor's expense, and file all United States federal, state
and local tax and information returns and reports required to be filed by or in
respect of the Trust. The Administrative Trustee(s) shall provide or cause to be
provided on a timely basis to each Holder any Internal Revenue Service form
required to be so provided in respect of the Trust Securities.
Article V
Trust Securities Certificates
Section 5.01. Initial Ownership
Upon the creation of the Trust by the contribution by the
Depositor pursuant to Section 2.03 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02. The Trust Securities Certificates
Each of the Preferred and Common Securities Certificates shall
be issued in minimum denominations of $1,000 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 A or Exhibit C, as applicable, executed by at least one
Administrative Trustee by manual signature; such authentication shall constitute
conclusive evidence that such Trust Securities Certificate shall have been duly
authenticated and delivered hereunder. All Trust Securities Certificates shall
be dated the date of their authentication.
Section 5.04. Registration of Transfer and Exchange of
Preferred Securities Certificates
------------------------------------------
The Securities Registrar shall keep or cause to be kept, at
the office or agency maintained pursuant to Section 5.08, a Securities Register
in which, subject to such reasonable regulations as it may prescribe, the
Securities Registrar shall provide for the registration of Preferred Securities
Certificates and the Common Securities Certificates (subject to Section 5.10 in
the case of the Common Securities Certificates) and registration of transfers
and exchanges of Preferred Securities Certificates as herein provided. The
Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Securities Certificate at the office or agency maintained pursuant to Section
5.08, the Administrative Trustees shall execute, authenticate and deliver in the
name of the designated transferee or transferees one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of authentication by the Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Preferred Securities that have been called for redemption.
At the option of a Holder, Preferred Securities Certificates may be exchanged
for other Preferred Securities Certificates in authorized denominations of the
same class and of a like aggregate Liquidation Amount upon surrender of the
Preferred Securities 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 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 JPMorgan Chase Bank, 4 New York Plaza, 15th Floor, New York,
New York 10004, as its principal agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.
Section 5.09. Appointment of Paying Agent
The Paying Agent shall make Distributions and other payments
provided hereby to Securityholders from the Payment Account and shall report the
amounts of such Distributions and payments to the Property Trustee and the
Administrative Trustees. Any Paying Agent shall have the revocable power to
withdraw funds from the Payment Account for the purpose of making the
Distributions and payments provided hereby. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and it may choose any co-paying agent that is
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees and the Depositor. In the event
that a Paying Agent shall resign or be removed, the Administrative Trustees
shall appoint a successor that is acceptable to the Depositor to act as Paying
Agent (which shall be a bank or trust company). The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent appointed
by the Administrative Trustees to execute and deliver to the Trustees an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Trustees that as Paying Agent, such successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.01, 8.03 and 8.06 shall apply
to the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
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 or
to an Affiliate of the Depositor or a permitted successor under Section 801 of
the Subordinated Indenture, 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 EXCEPT AS PROVIDED IN THE
TRUST AGREEMENT REFERRED TO HEREIN".
Section 5.11. Book-Entry Preferred Securities
Certificates; Common Securities Certificate
-------------------------------------------
(a) The Preferred Securities Certificates, upon original
issuance, will be issued in the form of a typewritten Preferred Securities
Certificate or Certificates representing Book-Entry Preferred Securities
Certificates, to be delivered to The Depository Trust Company, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Preferred Securities
Certificate or Certificates shall initially be registered on the Securities
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Owner will receive a definitive Preferred Securities Certificate
representing such beneficial owner's interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a)
shall be in full force and effect;
(ii) the Securities Registrar and the Trustees shall
be entitled to deal with the Clearing Agency for all purposes
of this Trust Agreement relating to the Book-Entry Preferred
Securities Certificates (including the payment of principal of
and interest on the Book-Entry Preferred Securities and the
giving of instructions or directions to Owners of Book-Entry
Preferred Securities) as the sole Holder of Book-Entry
Preferred Securities and shall have no obligations to the
Owners thereof;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this Trust
Agreement, the provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry
Preferred Securities Certificates shall be exercised only
through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Certificate Depository Agreement, unless and
until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make
book-entry transfers among the Clearing Agency Participants
and 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 11.01 hereof, will be
fully paid and nonassessable by the Trust. Except as otherwise provided in the
Expense Agreement and Section 11.01 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 11.03 of this Trust Agreement, in the Subordinated Indenture, and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) So long as any Junior Subordinated Notes are held by the
Property Trustee, the Trustees shall not (i) direct the time, method and place
of conducting any proceeding for any remedy available to the Indenture Trustee,
or executing any trust or power conferred on the Indenture Trustee with respect
to such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of at least 66-2/3% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Junior
Subordinated Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to this Trust Agreement or otherwise, or
(ii) the 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.
(d) An Event of Default will be deemed to be cured or waived
if, at any time, (i) after an Event of Default exists and payment of interest
and principal on the Junior Subordinated Notes has been accelerated under the
terms of the Subordinated Note Indenture or (ii) prior to a judgment or decree
for the payment of the money due on the Preferred Securities has been obtained,
the following events occur: (A) the holders of at least 66-2/3% in Liquidation
Amount of the Outstanding Preferred Securities give written notice to the
Property Trustee, the Administrative Trustees and the Company to rescind and
annul such declaration of acceleration of the Junior Subordinated Notes and its
consequences, (B) the Trust pays and deposits with the Clearing Agency a sum
sufficient to pay all Distributions (including any accrued interest) and the
liquidation amount due on the Preferred Securities otherwise than caused by the
acceleration of the Junior Subordinated Notes and (C) all other Events of
Default are no longer continuing or have been waived.
(e) Subject to this Section, Section 11.03(c) and Section 8.19
of this Trust Agreement, the Holders of at least 66-2/3% in Liquidation Amount
of the Outstanding Preferred Securities may, on behalf of the Holders of all the
Preferred Securities, waive any past default hereunder and its consequences,
except a default in the payment of any Distribution or redemption payment or in
respect of a covenant or provision hereof which under Section 11.03(c) cannot be
modified or amended without the consent of the Holder of each Preferred
Security.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Trust Agreement; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon. Any waiver
by the Holders of the Preferred Securities of an Event of Default with respect
to Preferred Securities shall also be deemed to constitute a waiver by the
Holders of Common Securities for all purposes of the Trust Agreement without any
further act, vote or consent of the Holders of Common Securities.
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 11.08 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 $1,000
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.
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At any meeting of Securityholders, any Securityholder entitled
to vote may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.06. Securityholder Action by Written Consent
Any action which may be taken by Securityholders at a meeting
may be taken without a meeting if Securityholders holding at least 66-2/3% of
all outstanding Trust Securities entitled to vote in respect of such action (or
such other proportion thereof as shall be required by any express provision of
this Trust Agreement) shall consent to the action in writing (based upon their
Liquidation Amount).
Section 6.07. Record Date for Voting and Other Purposes
For the purposes of determining the Securityholders who are
entitled to notice of and to vote at any meeting or by written consent, or to
participate in any Distribution on the Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, or for the
purpose of any other action, the Administrative Trustees may from time to time
fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of Distribution or other action, as the case may
be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.08. Acts of Securityholders
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement to
be given, made or taken by Securityholders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Securityholders in person or by an agent appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Administrative Trustees.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.01) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustees deem sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register. Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
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 national banking association, duly
organized, validly existing and in good standing under the laws of the United
States of America;
(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 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:
(a) 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;
(b) if (i) in performing its duties under this Trust Agreement
the Property Trustee is required to decide between alternative courses of
action, or (ii) 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 (iii) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then, except as to any
matter as to which the Preferred Securityholders are entitled to vote under the
terms of this Trust Agreement, the Property Trustee shall deliver a notice to
the Depositor requesting written instructions of the Depositor as to the course
of action to be taken. The Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) 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;
(d) 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;
(e) 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
(f) 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
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The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Trust of the proceeds of the Trust Securities
in accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds
held by it hereunder are legally available unless an officer of the Property
Trustee assigned to its Institutional Trust Services 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:
(a) 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);
(b) 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
(c) to indemnify the Trustees for, and to hold the Trustees
harmless against, any and all loss, damage, claims, liability or expense
incurred without willful misconduct, negligence or bad faith on their part,
arising out of or in connection with the acceptance or administration of this
Trust Agreement, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement.
Section 8.07. Trustees Required; Eligibility
(a) There shall at all times be a Property Trustee hereunder
with respect to the Trust Securities. The Property Trustee shall be a Person
that has a combined capital and surplus of at least $50,000,000. If any such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative
Trustees hereunder with respect to the Trust Securities. Each Administrative
Trustee shall be either a natural person who is at least 21 years of age or a
legal entity that shall act through one or more persons authorized to bind such
entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity authorized to conduct a trust business and with
its principal place of business in the State of Delaware that shall act through
one or more persons authorized to bind such entity.
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, the Delaware Bank,
as Delaware Trustee, the Administrative Trustees named therein and the Bank, as
Property Trustee, relating to Gulf Power Capital Trust I, (iii) the guarantee
agreement dated as of January 1, 1997, between the Company, as guarantor, and
the Bank, as trustee, relating to Gulf Power Capital Trust I, (iv) the amended
and restated trust agreement dated as of January 1, 1998, among the Company, as
Depositor, the Delaware Bank, as Delaware Trustee, the Administrative Trustees
named therein and the Bank, as Property Trustee, relating to Gulf Power Capital
Trust II, (v) the guarantee agreement dated as of January 1, 1998, between the
Company, as guarantor, and the Bank, as trustee, relating to Gulf Power Capital
Trust II, (vi) the amended and restated trust agreement dated as of November 1,
2001, among the Company, as Depositor, the Delaware Bank, as Delaware Trustee,
the Administrative Trustees named therein and the Bank, as Property Trustee,
relating to Gulf Power Capital Trust III and (vii) the guarantee agreement dated
as of November 1, 2001, between the Company, as guarantor, and the Bank, as
trustee, relating to Gulf Power Capital Trust III.
Section 8.09. Co-Trustees and Separate Trustee
At any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property may at the time be located, the Holder of the Common
Securities and the Property Trustee shall have power to appoint, and upon the
written request of the Property Trustee, the Depositor shall for such purpose
join with the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to act as
separate trustee of any such Trust Property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the
Depositor does not join in such appointment within 15 days after the receipt by
it of a request so to do, or in case an Indenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall satisfy the requirements of Section 8.07.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged, and
delivered by the Depositor.
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 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 11.08
and shall give notice to the Depositor. Each notice shall include the name of
the successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (i)
the act of the remaining Administrative Trustee or (ii) otherwise by the
Depositor (with the successor in each case being an individual who satisfies the
eligibility requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.11. Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Relevant
Trustee, every such successor Relevant Trustee so appointed shall execute,
acknowledge and deliver to the Trust and to the retiring Relevant Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Relevant Trustee shall become effective and such successor
Relevant Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Relevant
Trustee; but, on the request of the Depositor or the successor Relevant Trustee,
such retiring Relevant Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Relevant Trustee all the
rights, powers and trusts of the retiring Relevant Trustee and shall duly
assign, transfer and deliver to such successor Relevant Trustee all property and
money held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the preceding paragraph.
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
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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
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If and when the Property Trustee shall be or become a creditor
of the Depositor or the Trust (or any other obligor upon the Junior Subordinated
Notes or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, ▇▇▇▇ 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, ▇▇▇▇ 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, 2003, if required by Section 313(a) of the Trust Indenture Act, the
Property Trustee shall transmit a brief report dated as of such May 15 with
respect to any of the events specified in such Section 313(a) that may have
occurred since the later of the date of this Trust Agreement or the preceding
May 15.
(b) The Property Trustee shall transmit to Securityholders the
reports required by Section 313(b) of the Trust Indenture Act at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and (d) of the Trust
Indenture Act.
Section 8.15. Reports to the Property Trustee
The Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 of the Trust Indenture Act (if any) and,
within 120 days after the end of each fiscal year of the Depositor, the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form and in the manner required by Section 314 of the Trust Indenture
Act.
Section 8.16. Evidence of Compliance with Conditions
Precedent
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given pursuant to
Section 314(c)(1) of the Trust Indenture Act shall comply with Section 314(e) of
the Trust Indenture Act.
Section 8.17. Number of Trustees
(a) The number of Trustees shall initially be four; provided
that the Depositor by written instrument may increase or decrease the number of
Administrative Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Administrative Trustees is not reduced pursuant to Section 8.17(a), or
if the number of Trustees is increased pursuant to Section 8.17(a), a vacancy
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustees
shall occur, until such 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
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If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for more than five consecutive years at any one time, or
(ii) an Event of Default occurs and is continuing, then the Holders of Preferred
Securities will rely on the enforcement by the Property Trustee of its rights
against the Company as the holder of the Junior Subordinated Notes. In addition,
the Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities will have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under this Trust Agreement, including the right to direct the Property Trustee
to exercise the remedies available to it as a holder of the Junior Subordinated
Notes; provided that such direction shall not be in conflict with any rule of
law or with this Trust Agreement, and could not involve the Property Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Notes, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce its rights under this Trust Agreement without first instituting any
legal proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Trust Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a 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 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 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.
Section 8.20. Delaware Trustee
(a) Notwithstanding any other provision of this Trust
Agreement, 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 Administrative Trustees or the Property Trustee described in this Trust
Agreement. The Delaware Trustee shall be a trustee for the sole and limited
purpose of fulfilling the requirements of ss.3807 of the Delaware Statutory
Trust Act.
(b) It is expressly understood and agreed by the parties
hereto that in fulfilling its obligations as Delaware Trustee hereunder on
behalf of the Trust (i) any agreements or instruments executed and delivered by
Chase Manhattan Bank USA, National Association are executed and delivered not in
its individual capacity but solely as Delaware Trustee under this Trust
Agreement in the exercise of the powers and authority conferred and vested in
it, (ii) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by Chase Manhattan Bank USA, National
Association in its individual capacity but is made and intended for the purpose
of binding only the Trust, and (iii) under no circumstances shall Chase
Manhattan Bank USA, National Association in its individual capacity be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Trust Agreement,
except if such breach or failure is due to any gross negligence or willful
misconduct of the Delaware Trustee.
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 9.04, or upon the redemption of
all of the Trust Securities pursuant to Section 4.04, 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 Payment Date on
which a Distribution was made on such Trust Certificates until such certificates
are so surrendered (and until such certificates are so surrendered, no payments
of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Subordinated Notes) and (iv) all rights
of Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Junior Subordinated Notes upon surrender of Trust
Securities Certificates.
(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee pursuant to a Certificate
Depository Agreement.
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.
Section 9.06. Certificate of Cancellation
A Certificate of Cancellation ("Certificate") to terminate and
dissolve the Trust (as permitted hereby) may be signed by any Administrative
Trustee, individually, in such capacity so long as such Certificate fully
complies with all legal requirements.
Article X
Remarketing Procedures
Section 10.01 Election to Remarket
If the Company and the Administrative Trustees elect to
conduct a Remarketing, the Trust, not less than 20 nor more than 35 Business
Days prior to the related Election Date, is required to give the notice of
proposed Remarketing of the Preferred Securities to the Clearing Agency, the
Property Trustee, the Indenture Trustee, the Remarketing Agent and the
Calculation Agent. If the Preferred Securities are not issued in global, fully
registered form to the Clearing Agency, such notice shall be delivered to the
Holders instead of the Clearing Agency. Such notice will describe the
Remarketing and will indicate the length of the proposed new Fixed Rate Period,
the proposed Remarketing Date and any redemption provisions that will apply
during such new Fixed Rate Period. At any time prior to the Election Date, the
Company and the Administrative Trustees may elect to terminate a Remarketing by
giving the Clearing Agency, the Remarketing Agent, the Property Trustee, the
Indenture Trustee and the Calculation Agent notice of such termination.
Section 10.02 Notice of Election
(a) Not later than 4:00 P.M., New York City time, on an
Election Date, each Holder of Preferred Securities may give, through the
facilities of the Clearing Agency in the case of Book-Entry Preferred Securities
Certificates, a notice to the Property Trustee of its election ("Notice of
Election") (i) to retain and not to have all or any portion of the Preferred
Securities owned by it remarketed in the Remarketing or (ii) to tender all or
any portion of such Preferred Securities for purchase in the Remarketing (such
portion, in either case, is to be in the Liquidation Amount of $1,000 or any
integral multiple thereof). Any Notice of Election given to the Property Trustee
will be irrevocable and may not be conditioned upon the level at which the Fixed
Rate is established in the Remarketing. Promptly after 4:30 P.M., New York City
time, on such Election Date, the Property Trustee, based on the Notices of
Election received by it through the Clearing Agency (or from the Holders, if
Definitive Preferred Securities Certificates have been issued) prior to such
time, will notify the Trust, the Company and the Remarketing Agent of the number
of Preferred Securities to be retained by holders of Preferred Securities and
the number of Preferred Securities tendered for purchase in the Remarketing.
(b) If any Holder of Preferred Securities gives a Notice of
Election to tender Preferred Securities as described in 10.02(a), the Preferred
Securities so subject to such Notice of Election will be deemed tendered for
purchase in the Remarketing, notwithstanding any failure by such Holder to
deliver or properly deliver such Preferred Securities to the Remarketing Agent
for purchase. If any Holder of Preferred Securities fails timely to deliver a
Notice of Election, as described above, such Preferred Securities will be deemed
tendered for purchase in such Remarketing, notwithstanding such failure or the
failure by such Holder to deliver or properly deliver such Preferred Securities
to the Remarketing Agent for purchase.
(c) The right of each Holder of Preferred Securities to have
Preferred Securities tendered for purchase shall be limited to the extent that
(i) the Remarketing Agent conducts a Remarketing pursuant to the terms of the
Remarketing Agreement, (ii) Preferred Securities tendered have not been called
for redemption, (iii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Preferred Securities at a Fixed Rate and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent.
(d) Any Holder of Preferred Securities that desires to
continue to retain a number of Preferred Securities, but only if the Fixed Rate
is not less than a specified rate per annum, should submit a Notice of Election
to tender such Preferred Securities and separately notify the Remarketing Agent
of its interest at the telephone number set forth in the notice of Remarketing.
If such Holder so notifies the Remarketing Agent, the Remarketing Agent will
give priority to such Holder's purchase of such number of Preferred Securities
in the Remarketing providing that the Fixed Rate is not less than such specified
rate.
Section 10.03 Determination of Distribution Rate
(a) If Holders submit Notices of Election to retain all of the
Preferred Securities then outstanding, the Fixed Rate will be the rate
determined by the Remarketing Agent, in its sole discretion, as the rate that
would have been established had a Remarketing been held on the related
Remarketing Date.
(b) On any Remarketing Date on which the Remarketing is to be
conducted, the Remarketing Agent will use commercially reasonable efforts to
remarket, at a price equal to 100% of the Liquidation Amount thereof, Preferred
Securities tendered or deemed tendered for purchase. Except as provided in
Section 10.03(a), if, as a result of such efforts, on any Remarketing Date, the
Remarketing Agent has determined that it will be able to remarket all Preferred
Securities tendered or deemed tendered for purchase in the Remarketing at a
Fixed Rate and at a price of $1,000 per Preferred Security, prior to 4:00 P.M.,
New York City time, on such Remarketing Date, the Remarketing Agent will
determine the Fixed Rate, which will be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) which the Remarketing
Agent determines, in its sole judgment, to be the lowest Fixed Rate per annum,
if any, that will enable it to remarket all Preferred Securities tendered or
deemed tendered for remarketing at a price of $1,000 per Preferred Security.
(c) If the Remarketing Agent is unable to remarket by 4:00
P.M., New York City time on the third Business Day prior to the Remarketing
Settlement Date, all Preferred Securities tendered or deemed tendered for a
purchase at a price of $1,000 per Preferred Security, the Distribution Rate for
the next Distribution Period shall be the Floating Rate. In such case, no
Preferred Securities will be sold in the Remarketing and each Holder will
continue to hold its Preferred Securities at the Floating Rate.
(d) All Preferred Securities tendered or deemed tendered in
the Remarketing will be automatically delivered to the account of the
Remarketing Agent through the facilities of the Clearing Agency against payment
of the purchase price therefor on the Remarketing Settlement Date. The
Remarketing Agent will make payment to the Clearing Agency Participant of each
tendering holder of Preferred Securities in the Remarketing through the
facilities of the Clearing Agency by the close of business on the Remarketing
Settlement Date.
In accordance with the Clearing Agency's normal procedures, on
the Remarketing Settlement Date, the transaction described above with respect to
each Preferred Security tendered for purchase and sold in the Remarketing will
be executed through the Clearing Agency Participants, will be debited and
credited and such Preferred Securities delivered by book entry as necessary to
effect purchases and sales of such Preferred Securities. The Clearing Agency is
expected to make payment in accordance with its normal procedures.
This Section 10.03(d) shall not apply if Definitive Preferred
Securities Certificates have been issued.
(e) If any Holder selling Preferred Securities in the
Remarketing fails to deliver such Preferred Securities, the Clearing Agency
Participant of such selling Holder and of any other person that was to have
purchased Preferred Securities in the Remarketing may deliver to any such other
person a number of Preferred Securities that is less than the number of
Preferred Securities that otherwise was to be purchased by such person. In such
event, the number of Preferred Securities to be so delivered will be determined
by such Clearing Agency Participant and delivery of such lesser number of
Preferred Securities will constitute good delivery. This paragraph shall not
apply if Definitive Preferred Securities Certificates have been issued.
The Remarketing Agent is not obligated to purchase any
Preferred Securities that would otherwise remain unsold in a Remarketing.
Neither the Trust, any Securities Trustee, the Company nor the Remarketing Agent
shall be obligated in any case to provide funds to make payment upon tender of
Preferred Securities for Remarketing.
Article XI
Miscellaneous Provisions
Section 11.01. Guarantee by the Depositor
Subject to the terms and conditions hereof, the Depositor
irrevocably and unconditionally guarantees to each Person to whom the Trust is
now or hereafter becomes indebted or liable (the "Beneficiaries") the full
payment, when and as due, of any and all Obligations (as hereinafter defined) to
such Beneficiaries. As used herein, "Obligations" means any indebtedness,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to Holders of any Preferred Securities or other similar interests in the Trust
the amounts due such Holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This guarantee is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
Section 11.02. 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 11.03. 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 11.03(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 11.03.
(d) Notwithstanding any other provisions of this Trust
Agreement, the Trustees shall not enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, the Calculation
Agent or the Remarketing Agent, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor, the Calculation
Agent or the Remarketing Agent, as the case may be. 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 11.04. 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 11.05. 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 11.06. 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 11.07. Headings
The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.
Section 11.08. Notice and Demand
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon any Securityholder or the Depositor may be given or served in writing
by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (i) in the case of
a Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address appear on the Securities Register and (ii) in
the case of communications via United States mail or facsimile transmission to
the Common Securityholder or the Depositor, to Gulf Power Company, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer, Facsimile No. (850)
444-6026, with a copy to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Finance
Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ and (iii) in the case of communications
via hand delivery to the Common Securityholder or the Depositor to Gulf Power
Company, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer,
with a copy to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Finance
Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇ or to such other address as the Common
Securityholder or the Depositor may give notice of to the Property Trustee and
the Delaware Trustee. 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 as
follows: (i) with respect to the Property Trustee and the Delaware Trustee,
JPMorgan Chase Bank, 4 New York Plaza, 15th Floor, New York, New York, 10004,
Attention: Institutional Trust Services; Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, 500 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Road, Building 4
(3rd Floor) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Institutional Trust Services, as
the case may be, or to such other address as the Property Trustee or the
Delaware Trustee may give notice of to the Depositor; 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
IV c/o Corporate Secretary. Such notice, demand or other communication to or
upon the Trust or the Trustees shall be deemed to have been sufficiently given
or made only upon actual receipt of the writing by the applicable Trustee.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be served upon the
Calculation Agent or the Remarketing Agreement shall be given in accordance with
the Calculation Agent Agreement or the Remarketing Agreement, respectively.
Section 11.09. 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 11.09, 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
11.09 shall survive the termination of this Trust Agreement.
Section 11.10. Conflict with Trust Indenture Act
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trustee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee
which is a Trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
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:
---------------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President, Secretary and Treasurer
JPMORGAN CHASE BANK,
as Property Trustee
By:
---------------------------------------------------------
▇▇▇▇▇ ▇▇
Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
---------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
▇▇▇▇▇ Boston,
as Administrative Trustee
A-4
EXHIBIT A
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Gulf Power
Capital Trust IV 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-_ CUSIP NO. ▇▇▇▇▇▇▇▇▇
Certificate Evidencing Preferred Securities
of
Gulf Power Capital Trust IV
Flexible Trust Preferred Securities
(Five Year Initial Fixed Rate Period)
(Liquidation Amount $1,000 per Preferred Security)
Gulf Power Capital Trust IV, a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that [Cede &
Co.]* (the "Holder") is the registered owner of _____ (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Gulf Power Capital Trust IV Flexible
Trust Preferred Securities (Five Year Initial Fixed Rate Period) (Liquidation
Amount $1,000 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 December 1, 2002, 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 JPMorgan Chase Bank, as
guarantee trustee, dated as of December 1, 2002, as the same may be amended from
time to time (the "Guarantee"), to the extent provided therein. The Trust will
furnish a copy of the Trust Agreement and the Guarantee to the holder of this
certificate without charge upon written request to the Trust at its principal
place of business or registered office.
Upon receipt of this certificate, the holder of this
certificate is bound by the Trust Agreement and is entitled to the benefits
thereunder.
*Insert in Book-Entry Preferred Securities Certificates only
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ___ day of __________, 20__.
GULF POWER CAPITAL TRUST IV
By:
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
By:
------------------------------------------------
▇▇▇▇▇ 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
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)
B-4
EXHIBIT B
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of December 1, 2002, between Gulf Power Company, a Maine corporation
(the "Company"), and Gulf Power Capital Trust IV, a Delaware statutory 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 IV Flexible Trust 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 December 1, 2002 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 JPMorgan Chase Bank, as
guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
Section 1.03. Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.04. No Impairment. The obligations, covenants,
agreements and duties of the Company under this Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the extension of time for the payment by the
Trust of all or any portion of the Obligations or for
the performance of any other obligation under, arising out of, or
in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Beneficiaries with respect
to the Obligations or any action on the part of the Trust granting
indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Trust or any of the assets of the Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Company with respect to the happening of any of the
foregoing.
Section 1.05. Enforcement. A Beneficiary may enforce this Agreement
directly against the Company and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.01. Binding Effect. All guarantees and agreements
contained in this Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Company and shall inure to the benefit of
the Beneficiaries.
Section 2.02. Amendment. So long as there remains any
Beneficiary or any Preferred Securities of any series are outstanding,
this Agreement shall not be modified or amended in any manner adverse
to such Beneficiary or to the holders of the Preferred Securities.
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 IV
c/o JPMorgan Chase Bank
4 New York Plaza, 15th Floor
New York, New York 10004
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Institutional Trust Services
Gulf Power Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
THIS AGREEMENT is executed as of the date and year first above written.
GULF POWER COMPANY
By:
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President, Secretary and Treasurer
GULF POWER CAPITAL TRUST IV
By:
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Administrative Trustee
C-2
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT
REFERRED TO HEREIN
Certificate Number C-1 Number of Common Securities
Certificate Evidencing Common Securities
of
Gulf Power Capital Trust IV
Common Securities
(Liquidation Amount $1,000 per Common Security)
Gulf Power Capital Trust IV, a statutory 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
$1,000 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 or as permitted by the Trust
Agreement referred to herein, 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 December 1, 2002, 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.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust
have executed this certificate this ___ day of ________, 20__.
Gulf Power Capital Trust IV
By:
------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
as Administrative Trustee
By:
------------------------------------------------
▇▇▇▇▇ 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