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
ARTICLE I 2
Section 1.01 Definitions.........................................2
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ARTICLE II 10
Section 2.01 Name...............................................10
----
Section 2.02 Offices of the Trustees; Principal Place
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of Business.................................................10
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Section 2.03 Initial Contribution of Trust Property;
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Organizational Expenses.....................................10
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Section 2.04 Issuance of the Preferred Securities...............10
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Section 2.05 Subscription and Purchase of Junior
Subordinated Notes, Issuance of the Common
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Securities..................................................10
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Section 2.06 Declaration of Trust...............................11
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Section 2.07 Authorization to Enter into Certain
------------------------------------
Transactions................................................11
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Section 2.08 Assets of Trust....................................16
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Section 2.09 Title to Trust Property............................16
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Section 2.10 Mergers and Consolidations of the Trust............16
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ARTICLE III 17
Section 3.01 Payment Account....................................17
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ARTICLE IV 17
Section 4.01 Distributions......................................17
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Section 4.02 Redemption.........................................18
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Section 4.03 Subordination of Common Securities.................20
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Section 4.04 Payment Procedures.................................21
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Section 4.05 Tax Returns and Reports............................21
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ARTICLE V 21
Section 5.01 Initial Ownership..................................21
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Section 5.02 The Trust Securities Certificates..................21
---------------------------------
Section 5.03 Authentication of Trust Securities
-----------------------------------
Certificates................................................22
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Section 5.04 Registration of Transfer and Exchange of
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Preferred Securities Certificates...........................22
---------------------------------
Section 5.05 Mutilated, Destroyed, Lost or Stolen
-------------------------------------
Trust Securities Certificates...............................23
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Section 5.06 Persons Deemed Securityholders.....................23
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Section 5.07 Access to List of Securityholders' Names
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and Addresses...............................................23
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Section 5.08 Maintenance of Office or Agency....................24
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Section 5.09 Appointment of Paying Agent........................24
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Section 5.10 Ownership of Common Securities by
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Depositor...................................................25
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Section 5.11 Book-Entry Preferred Securities
Certificates; Common Securities Certificate.................25
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Section 5.12 Notices to Clearing Agency.........................26
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Section 5.13 Definitive Preferred Securities
Certificates................................................26
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Section 5.14 Rights of Securityholders..........................26
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ARTICLE VI 27
Section 6.01 Limitations on Voting Rights.......................27
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Section 6.02 Notice of Meetings.................................28
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Section 6.03 Meetings of Preferred Securityholders..............28
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Section 6.04 Voting Rights......................................28
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Section 6.05 Proxies, etc.......................................28
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Section 6.06 Securityholder Action by Written Consent...........29
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Section 6.07 Record Date for Voting and Other Purposes..........29
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Section 6.08 Acts of Securityholders............................29
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Section 6.09 Inspection of Records..............................30
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ARTICLE VII 30
Section 7.01 Representations and Warranties of the
-------------------------------------
Trustees................................................... 30
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ARTICLE VIII 31
Section 8.01 Certain Duties and Responsibilities................31
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Section 8.02 Notice of Defaults.................................32
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Section 8.03 Certain Rights of Property Trustee.................32
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Section 8.04 Not Responsible for Recitals or Issuance
-----------------------------------------
of Securities...............................................33
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Section 8.05 May Hold Securities................................33
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Section 8.06 Compensation; Fees; Indemnity......................34
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Section 8.07 Trustees Required; Eligibility.....................34
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Section 8.08 Conflicting Interests..............................35
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Section 8.09 Co-Trustees and Separate Trustee...................36
--------------------------------
Section 8.10 Resignation and Removal; Appointment of
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Successor...................................................38
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Section 8.11 Acceptance of Appointment by Successor.............39
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Section 8.12 Merger, Conversion, Consolidation or
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Succession to Business......................................39
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Section 8.13 Preferential Collection of Claims
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Against Depositor or Trust..................................40
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Section 8.14 Reports by Property Trustee........................40
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Section 8.15 Reports to the Property Trustee....................40
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Section 8.16 Evidence of Compliance with Conditions
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Precedent...................................................41
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Section 8.17 Number of Trustees.................................41
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Section 8.18 Delegation of Power................................41
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Section 8.19 Enforcement of Rights of Property
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Trustee by Securityholders..................................41
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ARTICLE IX 42
Section 9.01 Termination Upon Expiration Date...................42
--------------------------------
Section 9.02 Early Termination..................................42
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Section 9.03 Termination........................................43
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Section 9.04 Liquidation........................................43
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Section 9.05 Bankruptcy.........................................44
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ARTICLE X 44
Section 10.01 Guarantee by the Depositor.........................45
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Section 10.02 Limitation of Rights of Securityholders............45
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Section 10.03 Amendment..........................................45
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Section 10.04 Separability.......................................46
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Section 10.05 Governing Law......................................46
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Section 10.06 Successors.........................................46
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Section 10.07 Headings...........................................47
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Section 10.08 Notice and Demand..................................47
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Section 10.09 Agreement Not to Petition..........................47
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Section 10.10 Conflict with Trust Indenture Act..................48
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EXHIBIT A [INTENTIONALLY RESERVED]
EXHIBIT B [INTENTIONALLY RESERVED]
EXHIBIT C Form of Common Securities Certificate
EXHIBIT D Form of Expense Agreement
EXHIBIT E Form of Preferred Securities Certificate
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of ________ __,
20__, by and among (i) Georgia Power Company, a Georgia corporation (the
"Depositor" or the "Company"), (ii) JPMorgan Chase Bank, N.A. (formerly known as
The Chase Manhattan Bank), a banking corporation duly organized and existing
under the laws of New York, as trustee (the "Property Trustee" and, in its
separate corporate capacity and not in its capacity as Trustee, the "Bank"),
(iii) Chase Manhattan Bank USA, National Association, as Delaware trustee (the
"Delaware Trustee" and, in its separate corporate capacity and not in its
capacity as Delaware Trustee, the "Delaware Bank"), (iv) Janice G. Wolfe, an
individual, and Wayne Boston, an individual, as administrative trustees (each an
"Administrative Trustee" and together the "Administrative Trustees") (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the "Trustees") and (v) the several Holders, as hereinafter
defined.
WITNESSETH:
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and established a business trust pursuant to the Delaware Statutory
Trust Act by the entering into that certain Trust Agreement, dated as of
December __, 2004 (the "Original Trust Agreement"), and by the execution and
filing by the Delaware Trustee with the Secretary of State of the State of
Delaware of the Certificate of Trust, dated December __, 2004; 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, Janice G. Wolfe and Wayne Boston as
trustees of the Trust, (ii) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Notes, (iii) the
issuance of the Common Securities by the Trust to the Depositor, and (iv) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement.
NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, hereby amends and restates the
Original Trust Agreement in its entirety and agrees as follows:
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 10.09.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors or a duly authorized committee thereof and
to be in full force and effect on the date of such certification, and delivered
to the Trustees.
"Book-Entry Preferred Securities Certificates" means certificates
representing Preferred Securities issued in global, fully registered form to the
Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (i) a Saturday or a Sunday, (ii)
a day on which banks in New York, New York are authorized or obligated by law or
executive order to remain closed or (iii) a day on which the Corporate Trust
Office or the Indenture Trustee's principal corporate trust office is closed for
business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated ________ __, 20__, relating to the Preferred Securities
Certificates, as the same may be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial ownership interest in
the assets of the Trust having a Liquidation Amount of $25 and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of a Common Security or Securities, substantially in the form attached
as Exhibit C.
"Company" means Georgia Power Company.
"Corporate Trust Office" means the office of the Property Trustee at
which its corporate trust business shall be principally administered.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (i) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(a) and (ii)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Bank" has the meaning specified in the preamble to this Trust
Agreement.
"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 Georgia Power Company, in its capacity as "Depositor"
under this Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of an Indenture Event of Default; or
(ii) default by the Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant
or warranty a default in whose performance or breach is dealt with in
clause (ii) or (iii) above) and continuation of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Trustees by the Holders of at least 10% in
Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with respect to the
Trust.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Company and the Trust, substantially in the form attached as Exhibit
D, as amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Company and JPMorgan Chase Bank, N.A., as Guarantee Trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Preferred Securities, as amended from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in
the Subordinated Indenture.
"Indenture Redemption Date" means "Redemption Date," as defined in the
Subordinated Indenture.
"Indenture Trustee" means the trustee under the Subordinated Indenture.
"Issue Date" means the date of the delivery of the Trust Securities.
"Junior Subordinated Notes" means the $__________ aggregate principal
amount of the Depositor's Series __ ____% Junior Subordinated Notes due ____ __,
____, issued pursuant to the Subordinated Indenture.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (i) Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Notes to be
contemporaneously redeemed in accordance with the Subordinated Indenture and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) Junior Subordinated Notes having a principal amount equal to
the Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Subordinated Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Junior Subordinated Notes
are to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.04.
"Liquidation Distribution" has the meaning specified in Section 9.05.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Depositor, and delivered to the appropriate Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 8.16
shall be the principal executive, financial or accounting officer of the
Depositor. An Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as is necessary, in such officer's
opinion, to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Trustees or the Depositor, but not an employee of the
Trust or the Trustees, and who shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to federal income tax matters may
rely on published rulings of the Internal Revenue Service.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Preferred Securities, means,
as of the date of determination, all Preferred Securities theretofore
authenticated and delivered under this Trust Agreement, except:
(i) Preferred Securities theretofore cancelled by the
Administrative Trustees or delivered to the Administrative Trustees for
cancellation;
(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 Security" means an undivided beneficial ownership interest
in the assets of the Trust having a Liquidation Amount of $25 and having rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of a Preferred Security or Securities, substantially in the form
attached as Exhibit E.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor "Property Trustee" as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Indenture Redemption Date shall be a Redemption
Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any date fixed for redemption
of any Trust Security, the Liquidation Amount of such Trust Security, plus
accrued and unpaid Distributions to such date.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Securities Register" and "Securities Registrar" are described in
Section 5.04.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
is a beneficial owner within the meaning of the Delaware Statutory Trust Act.
"Subordinated Indenture" means the Subordinated Note Indenture, dated
as of ________ __, 20__, between the Depositor and the Indenture Trustee, as
supplemented by the Supplemental Indenture.
"Supplemental Indenture" means the _____ Supplemental Indenture, dated
as of ______ __, 20__, by and between the Depositor and the Indenture Trustee.
"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 ______
__, 20__, among the Trust, the Depositor and the underwriters named therein.
ARTICLE II
Establishment of the Trust
Section 2.01 Name. The Trust continued hereby shall be known as
"Georgia Power Capital Trust XI," in which name the Trustees may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued. The Administrative Trustees may change
the name of the Trust from time to time following written notice to the Holders.
Section 2.02 Offices of the Trustees; Principal Place of Business. The
address of the Property Trustee is JPMorgan Chase Bank, N.A., 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 500
Stanton Christiana Road, Newark Delaware, 19713, or at such other address in
Delaware as the Delaware Trustee may designate by notice to the Depositor. The
address of the Administrative Trustees is c/o Georgia Power Company, 241 Ralph
McGill Boulevard, N.E., Atlanta, Georgia 30308-3374, Attention: Corporate
Secretary. The principal place of business of the Trust is c/o Georgia Power
Company, 241 Ralph McGill Boulevard, N.E., Atlanta, Georgia 30308-3374. The
Depositor may change the principal place of business of the Trust at any time by
giving notice thereof to the Trustees.
Section 2.03 Initial Contribution of Trust Property; Organizational
Expenses. The Delaware Trustee acknowledges receipt in trust from the Depositor
in connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of the Trustees,
promptly reimburse the Trustees for any such expenses paid by the Trustees. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
Section 2.04 Issuance of the Preferred Securities. Contemporaneously
with the execution and delivery of this Trust Agreement, the Administrative
Trustees, on behalf of the Trust, shall execute and deliver to the underwriters
named in the Underwriting Agreement Preferred Securities Certificates,
registered in the name of the nominee of the initial Clearing Agency, in an
aggregate amount of _________ Preferred Securities having an aggregate
Liquidation Amount of $______, against receipt of the aggregate purchase price
of such Preferred Securities of $________, which amount the Administrative
Trustees shall promptly deliver to the Property Trustee.
Section 2.05 Subscription and Purchase of Junior Subordinated Notes;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Administrative Trustees, on behalf of the
Trust, shall execute and deliver to the Depositor Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
_______ Common Securities having an aggregate Liquidation Amount of $_______,
against payment by the Depositor of such amount. Contemporaneously therewith,
the Administrative Trustees, on behalf of the Trust, shall subscribe to and
purchase from the Depositor Junior Subordinated Notes, registered in the name of
the Property Trustee, on behalf of the Trust and the Holders, and having an
aggregate principal amount equal to $_______, and, in satisfaction of the
purchase price for such Junior Subordinated Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor the sum of $_________.
Section 2.06 Declaration of Trust. The exclusive purposes and functions
of the Trust are (i) to issue and sell the Trust Securities and use the proceeds
from such sale to acquire the Junior Subordinated Notes, and (ii) to engage in
those activities necessary, incidental, appropriate or convenient thereto. The
Depositor hereby appoints each of the Bank, the Delaware Bank, Janice G. Wolfe
and Wayne Boston as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein. The Property Trustee hereby declares that
it will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders. The Trustees
shall have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Administrative Trustees set forth herein. The Delaware Trustee
shall be one of the Trustees for the sole and limited purpose of fulfilling the
requirements of the Delaware 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 ss. 314(a)(4) of the Trust Indenture Act, which certificate may be
executed by any Administrative Trustee;
(viii) to take all actions and perform such duties as may be
required of the Administrative Trustees pursuant to the terms of this
Trust Agreement;
(ix) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business
trust under the laws of the State of Delaware and of each other
jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Trust Securities or to enable
the Trust to effect the purposes for which the Trust has been created;
(x) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust;
(xi) to issue and sell the Trust Securities;
(xii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Expense Agreement and
the Certificate Depository Agreement and such other agreements as may
be necessary or desirable in connection with the consummation hereof;
(xiii) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(xiv) to assist in the listing of the Preferred Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Preferred Securities under
the Exchange Act, and the preparation and filing of all periodic and
other reports and other documents pursuant to the foregoing;
(xv) to send notices (other than notices of default) and other
information regarding the Trust Securities and the Junior Subordinated
Notes to the Securityholders in accordance with this Trust Agreement;
(xvi) to appoint a Paying Agent (subject to Section 5.09),
authenticating agent and Securities Registrar in accordance with this
Trust Agreement;
(xvii) to register transfers of the Trust Securities in
accordance with this Trust Agreement;
(xviii) to assist in, to the extent provided in this Trust
Agreement, the winding up of the affairs of and termination of the
Trust and the preparation, execution and filing of the certificate of
cancellation with the Secretary of State of the State of Delaware; and
(xix) to take any action incidental to the foregoing as the
Administrative Trustees may from time to time determine is necessary,
appropriate, convenient or advisable to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration
of the effect of any such action on any particular Securityholder).
B. As among the Trustees, the Property Trustee shall have the exclusive
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(i) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the Trust
Securities to the extent the Junior Subordinated Notes are redeemed or
mature;
(ii) upon notice of distribution issued by the Administrative
Trustees in accordance with the terms of this Trust Agreement, engage
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 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;
(iv) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including
any amendments thereto;
(v) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities and to execute,
deliver and perform the Underwriting Agreement on behalf of the Trust;
and
(vi) any other actions necessary, incidental, appropriate or
convenient to carry out any of the foregoing activities.
E. Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the Investment Company Act of 1940, as
amended, or taxed as other than a grantor trust for United States federal income
tax purposes and so that the Junior Subordinated Notes will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not materially and adversely affect the
interests of the Holders of the Preferred Securities.
Section 2.08 Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
Section 2.09 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Securityholders and the Trust in accordance with this Trust Agreement. The
right, title and interest of the Property Trustee to the Junior Subordinated
Notes shall vest automatically in each Person who may thereafter be appointed as
Property Trustee in accordance with the terms hereof. Such vesting and cessation
of title shall be effective whether or not conveyancing documents have been
executed and delivered.
Section 2.10 Mergers and Consolidations of the Trust. The Trust may not
consolidate, amalgamate, merge with or into, or be replaced by, or convey,
transfer or lease its properties and assets substantially as an entirety to any
corporation or other body, except as described below or otherwise provided in
this Trust Agreement. The Trust may at the request of the Company, with the
consent of the Administrative Trustees and without the consent of the Holders of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any state; provided,
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Trust Securities or (y) substitutes
for the Preferred Securities other securities having substantially the same
terms as the Trust Securities (herein referred to as the "Successor Securities")
so long as the Successor Securities rank the same as the Trust Securities rank
in priority with respect to Distributions and payments upon liquidation,
redemption and otherwise, (ii) the Company expressly appoints a trustee of such
successor entity possessing the same powers and duties as the Property Trustee
as the holder of legal title to the Junior Subordinated Notes, (iii) the
Preferred Securities or any Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the Holders of the Trust
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, or replacement,
the Company has received an Opinion of Counsel to the effect that (A) such
merger, consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the Trust Securities
(including any Successor Securities) in any material respect, and (B) following
such merger, consolidation, amalgamation or replacement, neither the Trust nor
such successor entity will be required to register as an investment company
under the Investment Company Act of 1940, and (viii) the Company guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% in Liquidation Amount of
the Trust Securities, consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger or replacement would cause the Trust or the successor
entity to be classified as other than a grantor trust for federal income tax
purposes.
ARTICLE III
Payment Account
Section 3.01 Payment Account.
(a) On or prior to the Issue Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and an agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal or interest on, and any other payments
or proceeds with respect to, the Junior Subordinated Notes. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
Section 4.01 Distributions.
(a) Distributions on the Trust Securities shall be cumulative and
accrue from the Issue Date and, except in the event that the Depositor exercises
its right to extend the interest payment period for the Junior Subordinated
Notes pursuant to Section 104 of the Supplemental Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31 of each
year, commencing on _____ __, 20__. If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date (each such date, a "Distribution Date").
(b) Distributions payable on the Trust Securities shall be fixed at a
rate of ___% per annum of the Liquidation Amount of the Trust Securities. The
amount of Distributions payable for any full quarterly period shall be computed
on the basis of twelve 30-day months and a 360-day year. If the interest payment
period for the Junior Subordinated Notes is extended pursuant to Section 104 of
the Supplemental Indenture (an "Extension Period"), then the rate per annum at
which Distributions on the Trust Securities accumulate shall be increased by an
amount such that the aggregate amount of Distributions that accumulate on all
Trust Securities during any such Extension Period is equal to the aggregate
amount of interest (including interest payable on unpaid interest at the
percentage rate per annum set forth above, compounded quarterly) that accrues
during any such Extension Period on the Junior Subordinated Notes. The payment
of such deferred interest, together with interest thereon, will be distributed
to the Holders of the Trust Securities as received at the end of any Extension
Period. The amount of Distributions payable for any period shall include the
Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made and shall be
deemed payable on each Distribution Date only to the extent that the Trust has
legally and immediately available funds in the Payment Account for the payment
of such Distributions.
(d) Distributions, including Additional Amounts, if any, on the Trust
Securities on each Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities on the relevant
record date, which shall be the close of business on the fifteenth calendar day
prior to the relevant Distribution Date.
Each Trust Security upon registration of transfer of or in exchange for
or in lieu of any other Trust Security shall carry the rights of Distributions
accrued (including Additional Amounts, if any) and unpaid, and to accrue
(including Additional Amounts, if any), which were carried by such other Trust
Security.
Section 4.02 Redemption.
(a) On each Redemption Date with respect to the Junior Subordinated
Notes, the Trust will be required to redeem a Like Amount of Trust Securities at
the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder's address appearing in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to
be redeemed, the total Liquidation Amount of the Trust Securities to be
redeemed; and
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after such date.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Junior Subordinated Notes. Redemptions of the Trust Securities
shall be made and the Redemption Price shall be deemed payable on each
Redemption Date only to the extent that the Trust has funds legally and
immediately available in the Payment Account for the payment of such Redemption
Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 2:00 p.m. New York time, on the Redemption
Date, subject to Section 4.02(c), the Property Trustee will, so long as the
Preferred Securities are in book-entry only form, irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price. If the Preferred Securities are no longer in
book-entry only form, the Property Trustee, subject to Section 4.02(c), shall
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions to pay
the Redemption Price to the Holders thereof upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable on
or prior to the Redemption Date for any Trust Securities called for redemption
shall be payable to the Holders of such Trust Securities as they appear on the
Securities Register for the Trust Securities on the relevant record dates for
the related Distribution Dates. If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all rights
of Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date shall be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, payment of such Redemption Price shall be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
Redemption Price in respect of Trust Securities is improperly withheld or
refused and not paid either by the Trust or by the Depositor pursuant to the
Guarantee, Distributions on such Trust Securities will continue to accrue at the
then applicable rate, from such Redemption Date originally established by the
Trust for such Preferred Securities to the date such Redemption Price is
actually paid.
(e) Payment of the Redemption Price on the Trust Securities shall be
made to the recordholders thereof as they appear on the Securities Register for
the Trust Securities on the relevant record date, which shall be the close of
business on the fifteenth calendar day prior to the Redemption date.
(f) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated 3% to the Common Securities and 97%
to the Preferred Securities, with such adjustments that each amount so allocated
shall be divisible by $25. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for a redemption of portions
(equal to $25 or integral multiple thereof) of the Liquidation Amount of
Preferred Securities of a denomination larger than $25; provided, however, that
before undertaking redemption of the Preferred Securities on other than a pro
rata basis, the Property Trustee shall have received an Opinion of Counsel that
the status of the Trust as a grantor trust for federal income tax purposes would
not be adversely affected. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed. For all purposes of
this Trust Agreement, unless the context otherwise requires, all provisions
relating to the redemption of Preferred Securities shall relate, in the case of
any Preferred Securities redeemed or to be redeemed only in part, to the portion
of the Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
(g) Subject to the foregoing provisions of Section 4.02 and to
applicable law (including, without limitation, United States federal securities
laws), the Company or its Affiliates may, at any time and from time to time,
purchase outstanding Preferred Securities by tender, in the open market or by
private agreement.
Section 4.03 Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made pro rata based on the Liquidation Amount of the Trust
Securities; provided, however, that if on any Distribution Date or Redemption
Date an Indenture Event of Default shall have occurred and be continuing, no
payment of any Distribution (including Additional Amounts, if applicable) on, or
Redemption Price of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions
(including Additional Amounts, if applicable) on all Outstanding Preferred
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities, shall have been made or provided
for, and all funds immediately available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or Redemption Price of, Preferred
Securities then due and payable.
(b) In the case of the occurrence of any Indenture Event of Default,
the Holder of Common Securities will be deemed to have waived any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.
Section 4.04 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency, which shall credit the relevant Persons' accounts
at such Clearing Agency on the applicable distribution dates. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of the Common
Securities.
Section 4.05 Tax Returns and Reports. The Administrative Trustee(s)
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. The Administrative
Trustee(s) shall provide or cause to be provided on a timely basis to each
Holder any Internal Revenue Service form required to be so provided in respect
of the Trust Securities.
ARTICLE V
Trust Securities Certificates
Section 5.01 Initial Ownership. Upon the creation of the Trust by the
contribution by the Depositor pursuant to Section 2.03 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
Section 5.02 The Trust Securities Certificates. Each of the Preferred
and Common Securities Certificates shall be issued in minimum denominations of
$25 and integral multiples in excess thereof. The Trust Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Trust Securities
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.04.
Section 5.03 Authentication of Trust Securities Certificates. On the
Issue Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.04
and 2.05, to be executed on behalf of the Trust, authenticated and delivered to
or upon the written order of the Depositor signed by its Chairman of the Board,
its President or any Vice President, without further corporate action by the
Depositor, in authorized denominations. No Trust Securities Certificate shall
entitle its holder to any benefit under this Trust Agreement, or shall be valid
for any purpose, unless there shall appear on such Trust Securities Certificate
a certificate of authentication substantially in the form set forth in Exhibit E
or Exhibit C, as applicable, executed by at least one Administrative Trustee by
manual signature; such authentication shall constitute conclusive evidence that
such Trust Securities Certificate shall have been duly authenticated and
delivered hereunder. All Trust Securities Certificates shall be dated the date
of their authentication.
Section 5.04 Registration of Transfer and Exchange of Preferred
Securities Certificates. The Securities Registrar shall keep or cause to be
kept, at the office or agency maintained pursuant to Section 5.08, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and the Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.08, the
Administrative Trustees shall execute, authenticate and deliver in the name of
the designated transferee or transferees one or more new Preferred Securities
Certificates in authorized denominations of a like aggregate Liquidation Amount
dated the date of authentication by the Administrative Trustee or Trustees. The
Securities Registrar shall not be required to register the transfer of any
Preferred Securities that have been called for redemption. At the option of a
Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.08.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustees and the Securities
Registrar duly executed by the Holder or his attorney duly authorized in
writing. Each Preferred Securities Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar or
the Administrative Trustees may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Preferred Securities Certificates.
Section 5.05 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
required by them to save each of them harmless, then in the absence of notice
that such Trust Securities Certificate shall have been acquired by a bona fide
purchaser, the 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, N.A., 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, shall be void. The
Administrative Trustees shall cause each Common Securities Certificate issued to
the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE".
Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will
be issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
definitive Preferred Securities Certificate representing such beneficial owner's
interest in such Preferred Securities, except as provided in Section 5.13.
Unless and until Definitive Preferred Securities Certificates have been issued
to Owners pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full
force and effect;
(ii) the Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of principal of and interest on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole
Holder of Book-Entry Preferred Securities and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Trust Agreement, the
provisions of this Section shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred
Securities Certificates shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements
between such Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Certificate Depository Agreement, unless
and until Definitive Preferred Securities Certificates are issued
pursuant to Section 5.13, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12 Notices to Clearing Agency. To the extent a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
Section 5.13 Definitive Preferred Securities Certificates. If (i) the
Depositor advises the Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Preferred Securities Certificates, and the Depositor is unable to locate a
qualified successor, or (ii) the Depositor at its option advises the Trustees in
writing that it elects to terminate the book-entry system through the Clearing
Agency, then the Administrative Trustees shall notify the Clearing Agency and
Holders of the Preferred Securities. Upon surrender to the Administrative
Trustees of the typewritten Preferred Securities Certificate or Certificates
representing the Book-Entry Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees or
any one of them shall execute and authenticate the Definitive Preferred
Securities Certificates in accordance with the instructions of the Clearing
Agency. Neither the Securities Registrar nor the Trustees shall be liable for
any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Preferred Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Preferred Securities Certificates as Securityholders.
The Definitive Preferred Securities Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as is reasonably acceptable
to the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.
Section 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the beneficial ownership interest in the
assets of the Trust conferred by their Trust Securities, and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or other similar rights
and when issued and delivered to Securityholders against payment of the purchase
price therefor, except as otherwise provided in the Expense Agreement and
Section 10.01 hereof, will be fully paid and nonassessable by the Trust. Except
as otherwise provided in the Expense Agreement and Section 10.01 hereof, the
Holders of the Trust Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
Section 6.01 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.10 or Section
10.03 of this Trust Agreement, in the Subordinated Indenture, and as otherwise
required by law, no Holder of Preferred Securities shall have any right to vote
or in any manner otherwise control the administration, operation and management
of the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
(b) So long as any Junior Subordinated Notes are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Junior Subordinated Notes, (ii) waive any past default which is waivable
under Section 513 of the Subordinated Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Subordinated
Notes shall be due and payable or (iv) consent to any amendment, modification or
termination of the Subordinated Indenture or the Junior Subordinated Notes,
where such consent shall be required, or to any other action, as holder of the
Junior Subordinated Notes, under the Subordinated Indenture, without, in each
case, obtaining the prior approval of the Holders of at least 66-2/3% in
Liquidation Amount of the Preferred Securities; provided, however, that where a
consent under the Subordinated Indenture would require the consent of each
holder of Junior Subordinated Notes affected thereby, no such consent shall be
given by the Trustees without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of Preferred Securities, except
pursuant to a subsequent vote of the Holders of Preferred Securities. The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Indenture Trustee with respect to the Junior
Subordinated Notes. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to this Trust Agreement provides for, or
the Trustees otherwise propose to effect, (i) any action that would adversely
affect the powers, preferences or special rights of the Preferred Securities,
whether by way of amendment to this Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with the approval of
the Holders of at least 66-2/3% in Liquidation Amount of the Outstanding
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes on account of such action.
Section 6.02 Notice of Meetings. Notice of all meetings of the
Preferred Securityholders, stating the time, place and purpose of the meeting,
shall be given by the Administrative Trustees pursuant to Section 10.08 to each
Preferred Securityholder of record, at his registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
Section 6.03 Meetings of Preferred Securityholders. No annual meeting
of Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Preferred Securityholders of record of 25% of the Preferred
Securities (based upon their Liquidation Amount) and the Administrative Trustees
or the Property Trustee may, at any time in their discretion, call a meeting of
Preferred Securityholders to vote on any matters as to which Preferred
Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Preferred Securityholders of record present, in person or by proxy, holding more
than 66-2/3% of the Preferred Securities (based upon their Liquidation Amount)
held by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
Section 6.04 Voting Rights. Securityholders shall be entitled to one
vote for each $25 of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Section 6.05 Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote may vote by proxy, provided that no proxy shall
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 either a national banking association or a banking
corporation or trust company duly organized, validly existing and in good
standing under the laws of the State of New York, and the Delaware Trustee is a
banking corporation or trust company duly organized, validly existing and in
good standing under the laws of the State of Delaware;
(b) each of the Bank and the Delaware Bank has full corporate power,
authority and legal right to execute, deliver and perform their obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by each of the Bank and the Delaware Bank and constitutes the valid
and legally binding agreement of each of the Bank and the Delaware Bank,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(d) the execution, delivery and performance by each of the Bank and the
Delaware Bank of this Trust Agreement have been duly authorized by all necessary
corporate action on the part of the Bank, the Property Trustee, the Delaware
Bank and the Delaware Trustee and do not require any approval of stockholders of
the Bank or the Delaware Bank and such execution, delivery and performance will
not (i) violate the Bank's or the Delaware Bank's Charter or By-laws, or (ii)
violate any law, governmental rule or regulation of the United States or the
State of New York or Delaware, as the case may be, governing the banking or
trust powers of the Bank and the Property Trustee or the Delaware Bank and the
Delaware Trustee, or any order, judgment or decree applicable to the Bank, the
Property Trustee, the Delaware Bank or the Delaware Trustee; and
(e) neither the authorization, execution or delivery by the Bank or the
Delaware Bank of this Trust Agreement, nor the consummation of any of the
transactions by the Bank, the Property Trustee, the Delaware Bank or the
Delaware Trustee (as appropriate in context) contemplated herein or therein, nor
the issuance of the Trust Securities Certificates pursuant to this Trust
Agreement require the consent or approval of, the giving of notice to, the
registration with or the taking of any other action with respect to any
governmental authority or agency under any existing federal, New York or
Delaware law governing the banking or trust powers of the Bank or the Delaware
Bank.
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:
(i) the Property Trustee may rely and shall be protected in acting
or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a
Holder or transferee, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or
document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) if (A) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative
courses of action, or (B) in construing any of the provisions
in this Trust Agreement the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained
herein, or (C) the Property Trustee is unsure of the
application of any provision of this Trust Agreement, then,
except as to any matter as to which the Preferred
Securityholders are entitled to vote under the terms of this
Trust Agreement, the Property Trustee shall deliver a notice
to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken. The Property
Trustee shall take such action, or refrain from taking such
action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor;
provided, however, that if the Property Trustee does not
receive such instructions of the Depositor within ten Business
Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days),
it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Trust Agreement
as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or
willful misconduct;
(iii) the Property Trustee may consult with counsel of its selection
and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any of the
Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance
with such request or direction;
(v) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other document, unless requested in writing to do so by one or
more Securityholders; and
(vi) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through its agents or attorneys, provided that the
Property Trustee shall be responsible for its own negligence
or recklessness with respect to selection of any agent or
attorney appointed by it hereunder.
Section 8.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Trust of the proceeds of the Trust Securities in
accordance with Section 2.05.
The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its Corporate Trustee Administrative Department shall have received
written notice from the Company, any Holder or any other Trustee that such funds
are not legally available.
Section 8.05 May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article I, any Trustee or any other agent of the
Trustees or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.
Section 8.06 Compensation; Fees; Indemnity.
The Depositor agrees:
(1) to pay to the Trustees from time to time reasonable compensation
for all services rendered by the Trustees hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of their agents and counsel), except any such expense,
disbursement or advance as may be attributable to their willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustees for, and to hold the Trustees harmless
against, any and all loss, damage, claims, liability or expense incurred without
willful misconduct, negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of this Trust Agreement,
including the costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties hereunder.
The provisions of this Section 8.06 shall survive the termination of
this Trust Agreement.
Section 8.07 Trustees Required; Eligibility.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that has
a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(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 August 1, 1996, among the Company, as Depositor, Chase Manhattan
Bank USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), as Property Trustee, relating to Georgia Power Capital Trust I,
(iii) the guarantee agreement dated as of August 1, 1996, between the Company,
as guarantor, and JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), as trustee, relating to Georgia Power Capital Trust I, (iv) the
amended and restated trust agreement dated as of January 1, 1997, among the
Company, as Depositor, Chase Manhattan Bank USA, National Association, as
Delaware Trustee, the Administrative Trustees named therein and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank), as Property Trustee,
relating to Georgia Power Capital Trust II, (v) the guarantee agreement dated as
of January 1, 1997, between the Company, as guarantor, and JPMorgan Chase Bank,
N.A. (formerly known as The Chase Manhattan Bank), as trustee, relating to
Georgia Power Capital Trust II, (vi) the amended and restated trust agreement
dated as of June 1, 1997, among the Company, as Depositor, Chase Manhattan Bank
USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), as Property Trustee, relating to Georgia Power Capital Trust
III, (vii) the guarantee agreement dated as of June 1, 1997, between the
Company, as guarantor, and JPMorgan Chase Bank, N.A. (formerly known as The
Chase Manhattan Bank), as trustee, relating to Georgia Power Capital Trust III,
(viii) the amended and restated trust agreement dated as of February 1, 1999,
among the Company, as Depositor, Chase Manhattan Bank USA, National Association,
as Delaware Trustee, the Administrative Trustees named therein and JPMorgan
Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as Property
Trustee, relating to Georgia Power Capital Trust IV, (ix) the guarantee
agreement dated as of February 1, 1999, between the Company, as guarantor, and
JPMorgan Chase Bank, N.A. (formerly kown as The Chase Manhattan Bank), as
trustee, relating to Georgia Power Capital Trust IV (x), the amended and
restated trust agreement dated as of May 1, 2001 among the Guarantor, as
Depositor, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
the Administrative Trustees named therein and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as Property Trustee, relating to
Georgia Power Capital Trust V, (xi) the guarantee agreement dated as of May 1,
2001 between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as trustee, relating to Georgia
Power Capital Trust V, (xii) the amended and restated trust agreement dated as
of May 1, 2001, among the Guarantor, as Depositor, Chase Manhattan Bank USA,
National Association, as Delaware Trustee, the Administrative Trustees named
therein and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as Property Trustee, relating to Georgia Power Capital Trust VI, (xiii)
the guarantee agreement dated as of May 1, 2001, between the Guarantor, as
guarantor, and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee, relating to Georgia Power Capital Trust VI, (xiv) the amended
and restated trust agreement dated as of January 1, 2004, among the Guarantor,
as Depositor, Chase Manhattan Bank USA, National Association, as Delaware
Trustee, the Administrative Trustees named therein and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as Property Trustee, relating to
Georgia Power Capital Trust VII, (xv) the guarantee agreement dated as of
January 1, 2004, between the Guarantor, as guarantor, and JPMorgan Chase Bank,
N.A. (formerly known as The Chase Manhattan Bank), as trustee, relating to
Georgia Power Capital Trust VII, (xvi) the amended and restated trust agreement
dated as of __________ ___, 20___, among the Guarantor, as Depositor, Chase
Manhattan Bank USA, National Association, as Delaware Trustee, the
Administrative Trustees named therein and JPMorgan Chase Bank, N.A., as Property
Trustee, relating to Georgia Power Capital Trust VIII, (xvii) the guarantee
agreement dated as of ____________ ___, 20___, between the Guarantor, as
guarantor, and JPMorgan Chase Bank, N.A., as trustee, relating to Georgia Power
Capital Trust VIII, (xviii) the amended and restated trust agreement dated as of
___________ ___, 20___, among the Guarantor, as Depositor, Chase Manhattan Bank
USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A., as Property Trustee, relating to
Georgia Power Capital Trust IX, (xix) the guarantee agreement dated as of
____________ ___, 20___, between the Guarantor, as guarantor, and JPMorgan Chase
Bank, N.A., as trustee, relating to Georgia Power Captial Trust IX and
______________________, (xx) the amended and restated trust agreement dated as
of ___________ ___, 20___, among the Guarantor, as Depositor, Chase Manhattan
Bank USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A., as Property Trustee, relating to
Georgia Power Capital Trust X, (xix) the guarantee agreement dated as of
____________ ___, 20___, between the Guarantor, as guarantor, and JPMorgan Chase
Bank, N.A., as trustee, relating to Georgia Power Captial Trust X and
----------------------.
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 10.08 and shall
give notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes incompetent or incapacitated, the vacancy
created by such death, incompetence or incapacity may be filled by (i) the act
of the remaining Administrative Trustee or (ii) otherwise by the Depositor (with
the successor in each case being an individual who satisfies the eligibility
requirement for Administrative Trustees set forth in Section 8.07).
Additionally, notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event the Depositor believes that any Administrative Trustee
has become incompetent or incapacitated, the Depositor, by notice to the
remaining Trustees, may terminate the status of such Person as an Administrative
Trustee (in which case the vacancy so created will be filled in accordance with
the preceding sentence).
Section 8.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, every such successor
Relevant Trustee so appointed shall execute, acknowledge and deliver to the
Trust and to the retiring Relevant Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Relevant
Trustee shall become effective and such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Relevant Trustee; but, on the request
of the Depositor or the successor Relevant Trustee, such retiring Relevant
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Relevant Trustee all the rights, powers and
trusts of the retiring Relevant Trustee and shall duly assign, transfer and
deliver to such successor Relevant Trustee all property and money held by such
retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the preceding paragraph.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
Section 8.12 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, Delaware Trustee or any
Administrative Trustee which is not a natural person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
Section 8.13 Preferential Collection of Claims Against Depositor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Depositor or the Trust (or any other obligor upon the Junior Subordinated Notes
or the Trust Securities), the Property Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Depositor or Trust (or any such other obligor). For purposes of Section
311(b)(4) and (6) of the Trust Indenture Act:
(a) "cash transaction" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Depositor or the Trust (or any such obligor) for the purpose of financing the
purchase, processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the receivables or
proceeds arising from the sale of the goods, wares or merchandise previously
constituting the security, provided the security is received by the Property
Trustee simultaneously with the creation of the creditor relationship with the
Depositor or the Trust (or any such obligor) arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
Section 8.14 Reports by Property Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15,
20__, 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. If (i) the Trust fails to pay Distributions in full on the
Preferred Securities for more than 20 consecutive quarterly distribution
periods, or (ii) an Event of Default occurs and is continuing, then the Holders
of Preferred Securities will rely on the enforcement by the Property Trustee of
its rights against the Company as the holder of the Junior Subordinated Notes.
In addition, the Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities will have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property Trustee
under this Trust Agreement, including the right to direct the Property Trustee
to exercise the remedies available to it as a holder of the Junior Subordinated
Notes, provided that such direction shall not be in conflict with any rule of
law or with this Trust Agreement, and could not involve the Property Trustee in
personal liability in circumstances where reasonable indemnity would not be
adequate. If the Property Trustee fails to enforce its rights under the Junior
Subordinated Notes, a Holder of Preferred Securities may, to the fullest extent
permitted by applicable law, institute a legal proceeding against the Company to
enforce its rights under this Trust Agreement without first instituting any
legal proceeding against the Property Trustee or any other Person, including the
Trust; it being understood and intended that no one or more of such Holders
shall have any right in any manner whatsoever by virtue of, or by availing of,
any provision of this Trust Agreement to affect, disturb or prejudice the rights
of any other of such Holders or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Trust Agreement, except in the manner herein provided and for the equal and
ratable benefit of all such Holders. Notwithstanding the foregoing, a Holder of
Preferred Securities may institute a legal proceeding directly against the
Company, without first instituting a legal proceeding against or requesting or
directing that action be taken by the Property Trustee or any other Person, for
enforcement of payment to such Holder of principal of or interest on the Series
A Junior Subordinated Notes having a principal amount equal to the aggregate
stated liquidation amount of the Preferred Securities of such Holder on or after
the due dates therefor specified or provided for in the Series A Junior
Subordinated Notes. The Company shall be subrogated to all rights of the Holders
of Preferred Securities in respect of any amounts paid to such Holders by the
Company pursuant to this Section.
ARTICLE IX
Termination and Liquidation
Section 9.01 Termination Upon Expiration Date. The Trust shall
automatically terminate on December 31, 20__ (the "Expiration Date") or earlier
pursuant to Section 9.02.
Section 9.02 Early Termination. Upon the first to occur of any of the
following events (such first occurrence, an "Early Termination Event"), the
Trust shall be dissolved and terminated in accordance with the terms hereof:
(i) the occurrence of a Bankruptcy Event in respect of the
Depositor, dissolution or liquidation of the Depositor, or the
dissolution of the Trust pursuant to judicial decree;
(ii) the delivery of written direction to the Property Trustee
by the Depositor at any time (which direction is optional and wholly
within the discretion of the Depositor) to terminate the Trust and
distribute the Junior Subordinated Notes to Securityholders as provided
in Section 9.04; and
(iii) the payment at maturity or redemption of all of the
Junior Subordinated Notes, and the consequent payment of the Preferred
Securities.
Section 9.03 Termination. The respective obligations and
responsibilities of the Trust and the Trustees created hereby shall terminate
upon the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts or instruments required to be distributed hereunder upon
the final payment of the Trust Securities; (b) the payment of any expenses owed
by the Trust; and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Section 9.04 Liquidation.
(a) If any Early Termination Event specified in clause (ii) of Section
9.02 occurs, the Trust shall be liquidated and the Property Trustee shall
distribute the Junior Subordinated Notes to the Securityholders as provided in
this Section 9.04.
(b) In connection with a distribution of the Junior Subordinated Notes,
each Holder of Trust Securities shall be entitled to receive, after the
satisfaction of liabilities to creditors of the Trust (as evidenced by a
certificate of the Administrative Trustees), a Like Amount of Junior
Subordinated Notes. Notice of liquidation shall be given by the Trustees by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Notes; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Junior
Subordinated Notes as the Administrative Trustees or the Property
Trustee shall deem appropriate.
(c) In order to effect the liquidation of the Trust and distribution of
the Junior Subordinated Notes to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Notes in exchange for the Outstanding Trust Securities
Certificates.
(d) After the Liquidation Date, (i) the Trust Securities will no longer
be deemed to be Outstanding, (ii) certificates representing a Like Amount of
Junior Subordinated Notes will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative Trustees
or their agent for exchange, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Junior
Subordinated Notes, accruing interest at the rate provided for in the Junior
Subordinated Notes from the last Distribution Date on which a Distribution was
made on such Trust Certificates until such certificates are so surrendered (and
until such certificates are so surrendered, no payments of interest or principal
will be made to Holders of Trust Securities Certificates with respect to such
Junior Subordinated Notes) and (iv) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Notes upon surrender of Trust Securities Certificates.
(e) The Depositor will use its best efforts to have the Junior
Subordinated Notes that are distributed in exchange for the Preferred Securities
to be listed on such securities exchange as the Preferred Securities are then
listed. The Depositor may elect to have the Junior Subordinated Notes issued in
book-entry form to the Clearing Agency or its nominee.
Section 9.05 Bankruptcy. If an Early Termination Event specified in
clause (i) of Section 9.02 has occurred, the Trust shall be liquidated. The
Property Trustee shall distribute the Junior Subordinated Notes to the
Securityholders as provided in Section 9.04, unless such distribution is
determined by the Administrative Trustees not to be practical, in which event
the Holders will be entitled to receive out of the assets of the Trust available
for distribution to Securityholders, after satisfaction of liabilities to
creditors, an amount equal to the Liquidation Amount per Trust Security plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then, subject to the next
succeeding sentence, the amounts payable by the Trust on the Trust Securities
shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Preferred Securities, except that, if an Indenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
ARTICLE X
Miscellaneous Provisions
Section 10.01 Guarantee by the Depositor. Subject to the terms and
conditions hereof, the Depositor irrevocably and unconditionally guarantees to
each Person to whom the Trust is now or hereafter becomes indebted or liable
(the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any indebtedness, expenses or liabilities of the Trust,
other than obligations of the Trust to pay to Holders of any Preferred
Securities or other similar interests in the Trust the amounts due such Holders
pursuant to the terms of the Preferred Securities or such other similar
interests, as the case may be. This guarantee is intended to be for the benefit
of, and to be enforceable by, all such Beneficiaries, whether or not such
Beneficiaries have received notice hereof.
Section 10.02 Limitation of Rights of Securityholders. The death or
incapacity of any Person having an interest, beneficial or otherwise, in a Trust
Security shall not operate to terminate this Trust Agreement, nor entitle the
legal representatives or heirs of such Person or any Securityholder for such
Person, to claim an accounting, take any action or bring any proceeding in and
for a partition or winding up of the arrangements contemplated hereby, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Section 10.03 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Depositor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement,
provided, however, that any such amendment shall not adversely affect in any
material respect the interests of any Securityholder or (ii) to modify,
eliminate or add to any provisions of this Trust Agreement to such extent as
shall be necessary to ensure that the Trust will not be classified as other than
a grantor trust for United States federal income tax purposes at any time that
any Trust Securities are outstanding; provided, however, that, except in the
case of clause (ii), such action shall not adversely affect in any material
respect the interests of any Securityholder and, in the case of clause (i), any
amendments of this Trust Agreement shall become effective when notice thereof is
given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any provision in
this Trust Agreement may be amended by the Trust or the Trustees with (i) the
consent of Trust Securityholders representing not less than 66-2/3% (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust for United
States federal income tax purposes or the Trust's exemption from status of an
"investment company" under the Investment Company Act of 1940, as amended.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.03 or 6.06 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date, (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date, or (iii) change
the consent required pursuant to Section 10.03.
(d) Notwithstanding any other provisions of this Trust Agreement, the
Trustees shall not enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an "investment company" under the Investment Company
Act of 1940, as amended, afforded by Rule 3a-5 thereunder.
(e) Without the consent of the Depositor, this Trust Agreement may not
be amended in a manner which imposes any additional obligation on the Depositor.
In executing any amendment permitted by this Trust Agreement, the Trustees shall
be entitled to receive, and (subject to Section 8.01) shall be fully protected
in relying upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Trust Agreement. Any Trustee may,
but shall not be obligated to, enter into any such amendment which affects such
Trustee's own rights, duties, immunities or liabilities under this Trust
Agreement or otherwise.
(f) In the event that any amendment to this Trust Agreement is made,
the Administrative Trustees shall promptly provide to the Depositor a copy of
such amendment.
Section 10.04 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.05 Governing Law. THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE;
PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY TRUSTEE SHALL
BE GOVERNED BY NEW YORK LAW.
Section 10.06 Successors. This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to both the Trust and the
Trustees, including any successor by operation of law.
Section 10.07 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
Section 10.08 Notice and Demand. Any notice, demand or other
communication which by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Securityholder or the Depositor
may be given or served in writing by deposit thereof, first-class postage
prepaid, in the United States mail, hand delivery or facsimile transmission, in
each case, addressed, (i) in the case of a Preferred Securityholder, to such
Preferred Securityholder as such Securityholder's name and address appear on the
Securities Register and (ii) in the case of the Common Securityholder or the
Depositor, to Georgia Power Company, 241 Ralph McGill Boulevard, N.E., Atlanta,
Georgia 30308-3374, Attention: Corporate Secretary, Facsimile No. (404)
526-2945, with a copy to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Corporate Finance Department, Facsimile
No. (404) 506-0674. Such notice, demand or other communication to or upon a
Securityholder shall be deemed to have been sufficiently given or made, for all
purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust or the Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (i) with respect to the Property
Trustee and the Delaware Trustee, JPMorgan Chase Bank, N.A., 4 New York Plaza,
15th Floor, New York, New York, 10004, Attention: Corporate Trustee
Administration Department; Chase Manhattan Bank USA, National Association, 500
Stanton Christiana Road, Newark, Delaware 19713, Attention: Corporate Trust
Department, as the case may be; and (ii) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked
Attention: Administrative Trustees of Georgia Power Capital Trust XI c/o
Corporate Secretary. Such notice, demand or other communication to or upon the
Trust or the Trustees shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the applicable Trustee.
Section 10.09 Agreement Not to Petition. Each of the Trustees and the
Depositor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
IX, it shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, reorganization, arrangement, insolvency, liquidation or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement of
any proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such petition
by the Depositor against the Trust or the commencement of such action and raise
the defense that the Depositor has agreed in writing not to take such action and
should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Trustees or the Trust may assert. The provisions of this Section
10.09 shall survive the termination of this Trust Agreement.
Section 10.10 Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trustee Agreement and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
SUBORDINATED INDENTURE AND THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND
SUCH OTHERS THAT THOSE TERMS AND PROVISIONS SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
IN WITNESS WHEREOF, the parties hereto have executed this Trust
Agreement or have caused this Trust Agreement to be executed on their behalf,
all as of the day and year first above written.
GEORGIA POWER COMPANY,
as Depositor
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
as Delaware Trustee
By:
Name:
Title:
Janice G. Wolfe,
as Administrative Trustee
Wayne Boston,
as Administrative Trustee
EXHIBIT A
[INTENTIONALLY RESERVED]
EXHIBIT B
[INTENTIONALLY RESERVED]
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
C-1 ________
Certificate Evidencing Common Securities
of
Georgia Power Capital Trust XI
Common Securities
(liquidation amount $25 per Common Security)
Georgia Power Capital Trust XI, a statutory trust created under the
laws of the State of Delaware (the "Trust"), hereby certifies that Georgia Power
Company (the "Holder") is the registered owner of _____________ (_______) common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Common Securities (liquidation amount $25
per Common Security) (the "Common Securities"). In accordance with Section 5.10
of the Trust Agreement (as defined below) the Common Securities are not
transferable, except by operation of law, and any attempted transfer hereof
shall be void. The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and
this certificate and the Common Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of ______ __, 20__, 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__.
Georgia Power Capital Trust XI
By:
Janice G. Wolfe,
as Administrative Trustee
By:
Wayne Boston,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
THIS AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") is
made as of ________ __, 20__, between Georgia Power Company, a Georgia
corporation (the "Company"), and Georgia Power Capital Trust XI, 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 Georgia Power Capital Trust XI ___% 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 ________ __, 20__ 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, N.A., 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:
Georgia Power Capital Trust XI
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Facsimile No.: (212) 946-8159
Attention: Corporate Trustee
Administration Department
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Section 2.04. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
THIS AGREEMENT is executed as of the date and year first above written.
GEORGIA POWER COMPANY
By:
GEORGIA POWER CAPITAL TRUST XI
By:
Wayne Boston, as
Administrative Trustee
EXHIBIT E
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Georgia Power
Capital Trust XI or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede & Co. or
in such other name as is requested by an authorized representative of DTC (and
any payment made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), any transfer, pledge, or other use hereof for
value or otherwise by or to any person is wrongful inasmuch as the registered
owner thereof, Cede & Co., has an interest herein.
Certificate Number Number of Preferred Securities
P-1 CUSIP NO. _______
Certificate Evidencing Preferred Securities
of
Georgia Power Capital Trust XI
______% Trust Preferred Securities
(Liquidation amount $25 per Preferred Security)
Georgia Power Capital Trust XI, 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 _____ MILLION (_______) preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust and designated the Georgia Power Capital Trust XI ____%
Trust Preferred Securities (liquidation amount $25 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.04 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust, dated as of __________ __, 20__, as the same may
be amended from time to time (the "Trust Agreement"), including the designation
of the terms of Preferred Securities as set forth therein. The holder of this
certificate is entitled to the benefits of a guarantee by Georgia Power Company,
a Georgia corporation (the "Company"), pursuant to a Guarantee Agreement between
the Company and JPMorgan Chase Bank, N.A., as guarantee trustee, dated as of
_______ __, 20__, 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.
IN WITNESS WHEREOF, the Administrative Trustees of the Trust have
executed this certificate this ____ day of ________, 20__.
GEORGIA POWER CAPITAL TRUST XI
By:
Janice G. Wolfe,
as Administrative Trustee
By:
Wayne Boston,
as Administrative Trustee
CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
as Administrative Trustee
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)
1This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
TABLE OF CONTENTS
Page
ARTICLE I........................................................1
SECTION 1.01. Definitions......................................1
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ARTICLE II.......................................................4
SECTION 2.01. Trust Indenture Act; Application.................4
--------------------------------
SECTION 2.02. Lists of Holders of Securities...................4
------------------------------
SECTION 2.03. Reports by the Trustee...........................4
----------------------
SECTION 2.04. Periodic Reports to Trustee......................4
---------------------------
SECTION 2.05. Evidence of Compliance with Conditions
Precedent........................................5
SECTION 2.06. Events of Default; Waiver........................5
-------------------------
SECTION 2.07. Event of Default; Notice.........................5
------------------------
SECTION 2.08. Conflicting Interests............................5
---------------------
ARTICLE III......................................................7
SECTION 3.01. Powers and Duties of the Trustee.................7
--------------------------------
SECTION 3.02. Certain Rights of Trustee........................8
-------------------------
SECTION 3.03. Compensation; Fees; Indemnity...................10
-----------------------------
ARTICLE IV......................................................10
SECTION 4.01. Trustee; Eligibility............................10
--------------------
SECTION 4.02. Appointment, Removal and Resignation of
----------------------------------------
Trustee.........................................11
-------
ARTICLE V.......................................................11
SECTION 5.01. Guarantee.......................................12
---------
SECTION 5.02. Waiver of Notice and Demand.....................12
---------------------------
SECTION 5.03. Obligations Not Affected........................12
------------------------
SECTION 5.04. Rights of Holders...............................13
-----------------
SECTION 5.05. Guarantee of Payment............................13
--------------------
SECTION 5.06. Subrogation.....................................13
-----------
SECTION 5.07. Independent Obligations.........................14
-----------------------
ARTICLE VI......................................................14
SECTION 6.01. Subordination...................................14
-------------
ARTICLE VII.....................................................14
SECTION 7.01. Termination.....................................14
-----------
ARTICLE VIII....................................................15
SECTION 8.01. Successors and Assigns..........................15
----------------------
SECTION 8.02. Amendments......................................15
----------
SECTION 8.03. Notices.........................................15
-------
SECTION 8.04. Benefit.........................................16
-------
SECTION 8.05. Interpretation..................................16
--------------
SECTION 8.06. Governing Law...................................16
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of _________
__, 20__, between GEORGIA POWER COMPANY, a Georgia corporation (the
"Guarantor"), and JPMORGAN CHASE BANK, N.A., a national association, as trustee
(the "Trustee"), for the benefit of the Holders (as defined herein) from time to
time of the Preferred Securities (as defined herein) of GEORGIA POWER CAPITAL
TRUST XI, a Delaware statutory trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _________ __, 20__, among the Trustee, the other
Trustees named therein, Georgia Power Company, as Depositor, and the holders of
undivided beneficial interests in the assets of the Trust, the Trust is issuing
as of ___________ __, 20__ $________ aggregate liquidation amount of its ____%
Trust Preferred Securities (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Trust and the
proceeds thereof will be used to purchase the Junior Subordinated Notes (as
defined in the Trust Agreement) of the Guarantor, which will be held by the
Trust as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the payment for Preferred
Securities by each Holder (as defined herein) thereof, which payment the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee Agreement for the benefit of the Holders from time to
time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.01......Definitions. As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used but not
otherwise defined herein shall have the meanings assigned to such terms in the
Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Event of Default" means a failure by the Guarantor to perform any of
its payment obligations under this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Trust: (i) any accrued and
unpaid distributions that are required to be paid on such Preferred Securities
but if and only if and to the extent the Trust has funds legally and immediately
available therefor to make such payment; (ii) the redemption price, including
all accrued and unpaid distributions to the date of redemption (the "Redemption
Price"), with respect to the Preferred Securities called for redemption by the
Trust but if and only if and to the extent that the Trust has funds legally and
immediately available therefor sufficient to make such payment; and (iii) upon a
voluntary or involuntary dissolution, winding-up or termination of the Trust
(other than in connection with the distribution of Junior Subordinated Notes to
the holders of Trust Securities or the redemption of all of the Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on the Preferred Securities to the date of
payment, to the extent the Trust has funds legally and immediately available
therefor, and (b) the amount of assets of the Trust remaining available for
distribution to Holders in liquidation of the Trust (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Trust, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indenture" means the Subordinated Note Indenture dated as of _________
__, 20__, between the Guarantor, as Subordinated Note Issuer, and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank), as trustee, as
supplemented by the _____ Supplemental Indenture dated as of ________ __, 20__,
by and between the Guarantor and JPMorgan Chase Bank, N.A., as Trustee.
"Majority in liquidation amount of Preferred Securities" means a vote
by Holder(s) of Preferred Securities, voting separately as a class, of more than
50% of the liquidation amount of all Preferred Securities outstanding at the
time of determination.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, and
delivered to the Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Responsible Officer" means, with respect to the Trustee, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any senior trust officer, trust officer
or assistant trust officer or any other officer of the Corporate Trust
Department of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Successor Trustee" means a successor Trustee possessing the
qualifications to act as Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means JPMorgan Chase Bank, N.A. until a Successor Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Guarantee Agreement and thereafter means each such Successor Trustee.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02......Lists of Holders of Securities.
(a) The Guarantor shall furnish or cause to be furnished to the Trustee
(a) semiannually, not later than June 1 and December 1 in each year, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") as of a date not more than 15 days prior to the
time such list is furnished, and (b) at such other times as the Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished; provided that, the Guarantor shall not be obligated
to provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Trustee by the Guarantor or at
any time the Trustee is the Securities Registrar under the Trust Agreement. The
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03......Reports by the Trustee. Within 60 days after May 15
of each year commencing May 15, 20__, the Trustee shall provide to the Holders
of the Preferred Securities such reports as are required by Section 313(a) of
the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.04......Periodic Reports to Trustee. The Guarantor shall
provide to the Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) in the form, in the manner and
at the times required by Section 314 of the Trust Indenture Act, and shall
provide, within 120 days after the end of each of its fiscal years, the
compliance certificate required by Section 314(a)(4) of the Trust Indenture Act
in the form and in the manner required by such Section.
SECTION 2.05......Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide to the Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Guarantee Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.06......Events of Default; Waiver. The Holders of a Majority
in liquidation amount of Preferred Securities may, by vote, on behalf of all of
the Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.07......Event of Default; Notice.
(a) The Trustee shall, within 90 days after the occurrence of an Event
of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Trustee, unless such defaults have
been cured before the giving of such notice, provided that the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The Trustee shall not be deemed to have knowledge of any Event of
Default unless the Trustee shall have received written notice, or a Responsible
Officer charged with the administration of the Trust Agreement shall have
obtained written notice, of such Event of Default.
SECTION 2.08......Conflicting Interests. The Trust Agreement, the
amended and restated trust agreement dated as of August 1, 1996, among the
Guarantor, as Depositor, Chase Manhattan Bank USA, National Association, as
Delaware Trustee, the Administrative Trustees named therein and JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank), as Property Trustee,
relating to Georgia Power Capital Trust I, the guarantee agreement dated as of
August 1, 1996, between the Guarantor, as guarantor, and JPMorgan Chase Bank,
N.A. (formerly known as The Chase Manhattan Bank), as trustee, relating to
Georgia Power Capital Trust I, the amended and restated trust agreement dated as
of January 1, 1997, among the Guarantor, as Depositor, Chase Manhattan Bank USA,
National Association, as Delaware Trustee, the Administrative Trustees named
therein and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as Property Trustee, relating to Georgia Power Capital Trust II, the
guarantee agreement dated as of January 1, 1997, between the Guarantor, as
guarantor, and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee, relating to Georgia Power Capital Trust II, the amended and
restated trust agreement dated as of June 1, 1997, among the Guarantor, as
Depositor, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
the Administrative Trustees named therein and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as Property Trustee, relating to
Georgia Power Capital Trust III, the guarantee agreement dated as of June 1,
1997, between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as trustee, relating to Georgia
Power Capital Trust III, the amended and restated trust agreement dated as of
February 1, 1999, among the Guarantor, as Depositor, Chase Manhattan Bank USA,
National Association, as Delaware Trustee, the Administrative Trustees named
therein and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as Property Trustee, relating to Georgia Power Capital Trust IV and the
guarantee agreement dated as of February 1, 1999, between the Guarantor, as
guarantor, and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee, relating to Georgia Power Capital Trust IV, the amended and
restated trust agreement dated as of May 1, 2001 among the Guarantor, as
Depositor, Chase Manhattan Bank USA, National Association, as Delaware Trustee,
the Administrative Trustees named therein and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as Property Trustee, relating to
Georgia Power Capital Trust V and the guarantee agreement dated as of March 1,
2001 between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as trustee, relating to Georgia
Power Capital Trust V, the amended and restated trust agreement dated as of May
1, 2001, among the Guarantor, as Depositor, Chase Manhattan Bank USA, National
Association, as Delaware Trustee, the Administrative Trustees named therein and
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as
Property Trustee, relating to Georgia Power Capital Trust VI and the guarantee
agreement dated as of May 1, 2001, between the Guarantor, as guarantor, and
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as
trustee, relating to Georgia Power Capital Trust VI, the amended and restated
trust agreement dated as of January 1, 2004, among the Guarantor, as Depositor,
Chase Manhattan Bank USA, National Association, as Delaware Trustee, the
Administrative Trustees named therein and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as Property Trustee, relating to Georgia
Power Capital Trust VII, the guarantee agreement dated as of January 1, 2004,
between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as trustee, relating to Georgia Power
Capital Trust VII, the amended and restated trust agreement dated as of
______________ ___, 20___, among the Guarantor, as Depositor, Chase Manhattan
Bank USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A., as Property Trustee, relating to
Georgia Power Capital Trust VIII, the guarantee agreement dated as of __________
___, 20___, between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A.,
as trustee, relating to Georgia Power Capital Trust VIII, the amended and
restated trust agreement dated as of _______________ ___, 20___, among the
Guarantor, as Depositor, Chase Manhattan Bank USA, National Association, as
Delaware Trustee, the Administrative Trustees named therein and JPMorgan Chase
Bank, N.A., as Property Trustee, relating to Georgia Power Capital Trust IX, the
guarantee agreement dated as of ____________ ___, 20___, between the Guarantor,
as guarantor, and JPMorgan Chase Bank, N.A. (, as trustee, relating to Georgia
Power Capital Trust IX, the amended and restated trust agreement dated as of
_______________ ___, 20___, among the Guarantor, as Depositor, Chase Manhattan
Bank USA, National Association, as Delaware Trustee, the Administrative Trustees
named therein and JPMorgan Chase Bank, N.A., as Property Trustee, relating to
Georgia Power Capital Trust X, the guarantee agreement dated as of ____________
___, 20___, between the Guarantor, as guarantor, and JPMorgan Chase Bank, N.A.,
as trustee, relating to Georgia Power Capital Trust X and ________________ shall
be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF TRUSTEE
SECTION 3.01......Powers and Duties of the Trustee.
(a) This Guarantee Agreement shall be held by the Trustee for the
benefit of the Holders, and the Trustee shall not transfer this Guarantee
Agreement to any Person except the Trustee shall assign rights hereunder to a
Holder to the extent such assignment is necessary to exercise such Holder's
rights pursuant to Section 5.04 or to a Successor Trustee upon acceptance by
such Successor Trustee of its appointment to act as Successor Trustee. The
right, title and interest of the Trustee shall automatically vest in any
Successor Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Trustee.
(b) If an Event of Default has occurred and is continuing, the Trustee
shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Trustee, before the occurrence of any Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Trustee shall exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Guarantee Agreement, and the Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a Majority in liquidation amount
of the Preferred Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 3.02. Certain Rights of Trustee.
(a) Subject to the provisions of Section 3.01:
(i) the Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Trustee may consult with counsel of its choice, and
the written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion; such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees; the Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction;
(v) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee Agreement at the
request or direction of any Holder, unless such Holder shall have
provided to the Trustee such adequate security and indemnity as would
satisfy a reasonable person in the position of the Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Trustee; provided that nothing contained in this Section 3.02(a)(v)
shall be taken to relieve the Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee Agreement;
(vi) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) whenever in the administration of this Guarantee
Agreement the Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Trustee (i) may request instructions from the
Holders, (ii) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Trustee shall be construed to be a duty.
SECTION 3.03. Compensation; Fees; Indemnity.
The Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable compensation for
all services rendered by the Trustee hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold the Trustee harmless
against, any and all loss, damage, claims, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The provisions of this Section 3.03 shall survive the termination of this
Guarantee Agreement.
ARTICLE IV
TRUSTEE
SECTION 4.01. Trustee; Eligibility.
(a) There shall at all times be a Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Trustee shall cease to be eligible to so act
under Section 4.01(a), the Trustee shall immediately resign in the manner and
with the effect set out in Section 4.02(c).
(c) If the Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and
Guarantor shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the rights of the Trustee under the
penultimate paragraph thereof.
SECTION 4.02. Appointment, Removal and Resignation of Trustee.
(a) Subject to Section 4.02(b), the Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) The Trustee shall not be removed until a Successor Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Trustee and delivered to the Guarantor.
(c) The Trustee appointed to office shall hold office until a Successor
Trustee shall have been appointed or until its removal or resignation. The
Trustee may resign from office (without need for prior or subsequent accounting)
by an instrument in writing executed by the Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Trustee has
been appointed and has accepted such appointment by instrument in writing
executed by such Successor Trustee and delivered to the Guarantor and the
resigning Trustee.
(d) If no Successor Trustee shall have been appointed and accepted
appointment as provided in this Section 4.02 within 60 days after delivery to
the Guarantor of an instrument of resignation, the resigning Trustee may
petition any court of competent jurisdiction for appointment of a Successor
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Trustee.
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee. The Guarantor irrevocably and unconditionally
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which the Guarantor
may have or assert against any Person. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor hereby waives
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Trust or any other Person before proceeding against
the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.03. Obligations Not Affected. The obligation of the Guarantor
to make the Guarantee Payments under this Guarantee Agreement shall in no way be
affected or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Junior Subordinated Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Trust granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly acknowledges
that: (i) this Guarantee Agreement will be deposited with the Trustee to be held
for the benefit of the Holders; (ii) the Trustee has the right to enforce this
Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee in respect of this Guarantee Agreement or exercising any trust or
power conferred upon the Trustee under this Guarantee Agreement, provided that
such direction shall not be in conflict with any rule of law or with this
Guarantee Agreement, and could not involve the Trustee in personal liability in
circumstances where reasonable indemnity would not be adequate; and (iv) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against or requesting or directing that action be taken by the
Trustee or any other Person; it being understood and intended that no one or
more of such Holders shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Guarantee Agreement to affect, disturb
or prejudice the rights of any other of such Holders or to obtain or to seek to
obtain priority or preference over any other of such Holders or to enforce any
right under this Guarantee Agreement, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of collection. This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication) or upon the distribution of Junior Subordinated Notes to the
Holders in exchange for all of the Preferred Securities.
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Trust in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts of Guarantee Payments are due
and unpaid under this Guarantee Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.07. Independent Obligations. The Guarantor acknowledges that
its obligations hereunder are independent of the obligations of the Trust with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
SUBORDINATION
SECTION 6.01. Subordination. This Guarantee Agreement will constitute
an unsecured obligation of the Guarantor and will rank (i) subordinate and
junior in right of payment to all other liabilities of the Guarantor, including
the Junior Subordinated Notes, except those obligations or liabilities made pari
passu or subordinate by their terms, (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Guarantor and with
any guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference securities of any Affiliate of the Guarantor, and (iii)
senior to all common stock of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.01. Termination. This Guarantee Agreement shall terminate and
be of no further force and effect upon: (i) full payment of the Redemption Price
of all Preferred Securities, (ii) the distribution of Junior Subordinated Notes
to the Holders in exchange for all of the Preferred Securities, or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Preferred Securities or under this Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding. Except in
connection with a consolidation, merger, conveyance, transfer, or lease
involving the Guarantor that is permitted under Article Eight of the Indenture,
the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes which do
not materially and adversely affect the rights of Holders (in which case no
consent of Holders will be required), this Guarantee Agreement may only be
amended with the prior approval of the Holders of not less than 66-2/3% in
liquidation amount of all the outstanding Preferred Securities. The provisions
of Article Six of the Trust Agreement concerning meetings of Holders shall apply
to the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Trustee and the
Holders:
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Facsimile No.: (404) 506-0674
Attention: Corporate Finance Department
(b) if given to the Trust, in care of the Trustee, or to the Trustee at
the Trust's (and the Trustee's) address set forth below or such other address as
the Trustee on behalf of the Trust may give notice to the Holders:
Georgia Power Capital Trust XI
c/o JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, New York 10004
Attn: Corporate Trustee Administration Department
(c) if given to any Holder, at the address set forth on the books and
records of the Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.04. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.01;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK. THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY COURT IN THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN
CONNECTION WITH THIS GUARANTEE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE GUARANTOR HEREBY
WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN
ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER, OR THAT THIS GUARANTEE AGREEMENT OR ANY DOCUMENT OR ANY
INSTRUMENT REFERRED TO HEREIN OR THE SUBJECT MATTER HEREOF MAY NOT BE LITIGATED
IN OR BY SUCH COURTS. THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE
UPON IT BY CERTIFIED OR REGISTERED MAIL TO THE ADDRESS FOR NOTICES SET FORTH IN
THIS GUARANTEE AGREEMENT OR ANY METHOD AUTHORIZED BY THE LAWS OF NEW YORK.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
GEORGIA POWER COMPANY
By:
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By:
Name:
Title:
Exhibit 5.1
TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
BANK OF AMERICA PLAZA
600 PEACHTREE STREET, N.E. - SUITE 5200
ATLANTA, GEORGIA 30308-2216
www.troutmansanders.com
TELEPHONE: 404-885-3000
FACSIMILE: 404-885-3900
December 13, 2004
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel to Georgia Power Company (the "Company") in
connection with the preparation of a Registration Statement on Form S-3,
including a preliminary prospectus, filed with the Securities and Exchange
Commission (the "Commission") on December 13, 2004 (the "Registration
Statement"), for the registration under the Securities Act of 1933, as amended
(the "Act"), of (1) Class A Preferred Stock (the "Preferred Stock") to be issued
by the Company, (2) Junior Subordinated Notes (the "Junior Subordinated Notes")
to be issued by the Company, (3) Trust Preferred Securities to be issued by
Georgia Power Capital Trust VIII, Georgia Power Capital Trust IX, Georgia Power
Capital Trust X and Georgia Power Capital Trust XI, (4) the Company's Guarantees
(as defined in the Registration Statement) with respect to such Preferred
Securities and (5) Senior Notes (the "Senior Notes") to be issued by the
Company. The Junior Subordinated Notes will be issued pursuant to the
Subordinated Note Indenture, dated as of June 1, 1997, as supplemented, between
the Company and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee (the "Subordinated Note Indenture"), the Guarantees will be
issued pursuant to separate guarantee agreements between the Company and the
trustees named therein (the "Guarantee Agreements") and the Senior Notes will be
issued pursuant to the Senior Note Indenture, dated as of January 1, 1998, as
supplemented, between the Company and JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank), as trustee (the "Senior Note Indenture"), in each
case in the respective forms filed as exhibits to the Registration Statement.
We are of the opinion that, upon compliance with the pertinent
provisions of the Act, the Trust Indenture Act of 1939, as amended, and the
Public Utility Holding Company Act of 1935, as amended, upon compliance with
applicable securities or blue sky laws of various jurisdictions, and upon the
adoption of appropriate resolutions by the Board of Directors of the Company or
a duly authorized committee thereof, when the Preferred Stock, the Junior
Subordinated Notes, the Guarantees and the Senior Notes have been issued and
sold upon the terms specified in an appropriate order of the Georgia Public
Service Commission:
ATLANTA o HONG KONG o LONDON o NORFOLK o RALEIGH o RICHMOND
TYSONS CORNER o VIRGINIA BEACH o WASHINGTON, D.C.
TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
Georgia Power Company
December 13, 2004
Page 2
(1) Upon the granting by the Secretary of State of the State of
Georgia of an appropriate amendment or amendments to the Charter
of the Company creating the Preferred Stock, and when
certificates for the Preferred Stock have been executed,
countersigned and registered in accordance with such resolutions
of the Board of Directors or a duly authorized committee thereof
and the By-laws of the Company, the shares of Preferred Stock
will be legally issued, fully paid and nonassessable shares of
the Company and the holders and owners thereof will be entitled
to all rights and preferences set forth in the Charter of the
Company, as amended.
(2) When the Senior Note Indenture and any supplemental indenture
to be entered into in connection with the issuance of the
Senior Notes, the Subordinated Note Indenture and any
supplemental indenture to be entered into in connection with
the issuance of the Junior Subordinated Notes or the Guarantee
Agreement, as applicable, have been duly executed and
delivered by the proper officers of the Company and the
trustees named therein, and when the Senior Notes and the
Junior Subordinated Notes, as the case may be, have been
executed, authenticated and delivered in accordance with the
terms of the Senior Note Indenture or the Subordinated Note
Indenture, as applicable, the Senior Notes, the Junior
Subordinated Notes and the Guarantees will be valid, binding
and legal obligations of the Company (subject to applicable
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and to general principles of equity, whether
considered in a proceeding at law or in equity).
In rendering the foregoing opinions, with respect to matters of New
York law, we have relied on the opinion of Dewey Ballantine LLP attached hereto
as Annex I.
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the
Registration Statement shall have been declared effective and such effectiveness
shall not have been terminated or rescinded and (ii) there shall not have
occurred any change in law affecting the validity or enforceability of such
security. We have also assumed that none of the terms of any security to be
established subsequent to the date hereof, nor the issuance and delivery of such
security, nor the compliance by the Company with the terms of such security will
violate any applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Company, or any restriction
imposed by any court or governmental body having jurisdiction over the Company.
We are members of the State Bar of Georgia and we do not express any
opinion herein concerning any law other than the law of the State of Georgia and
the federal law of the United States and, to the extent set forth herein, the
laws of the State of New York.
TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
Georgia Power Company
December 13, 2004
Page 3
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements with respect to our firm under the
caption "Legal Matters" in the prospectus forming part of the Registration
Statement. In giving the foregoing consent, we do not hereby admit that we come
within the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder. This opinion may
not be furnished or quoted to, or relied upon by, any other person for any
purpose, without our prior written consent.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
ANNEX I
Dewey Ballantine LLP
New York, New York
December 13, 2004
Troutman Sanders LLP
Bank of America Plaza
600 Peachtree Street, N.E. - Suite 5200
Atlanta, Georgia 30308
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel to the prospective underwriters in connection
with the preparation of a Registration Statement on Form S-3, including a
preliminary prospectus, filed with the Securities and Exchange Commission (the
"Commission") on December 13, 2004 (the "Registration Statement"), for the
registration under the Securities Act of 1933, as amended (the "Act"), of (1)
Class A Preferred Stock (the "Preferred Stock") to be issued by Georgia Power
Company (the "Company"), (2) Junior Subordinated Notes (the "Junior Subordinated
Notes") to be issued by the Company, (3) Trust Preferred Securities to be issued
by Georgia Power Capital Trust VIII, Georgia Power Capital Trust IX, Georgia
Power Capital Trust X, and Georgia Power Capital Trust XI, (4) the Company's
Guarantees (as defined in the Registration Statement) with respect to such Trust
Preferred Securities and (5) Senior Notes (the "Senior Notes") to be issued by
the Company. The Junior Subordinated Notes will be issued pursuant to a
subordinated note indenture, dated as of June 1, 1997, as supplemented, between
the Company and the trustee named therein (the "Subordinated Note Indenture"),
the Guarantees will be issued pursuant to separate guarantee agreements between
the Company and the trustees named therein (the "Guarantee Agreements") and the
Senior Notes will be issued pursuant to a senior note indenture, dated as of
January 1, 1998, as supplemented, between the Company and the trustee named
therein (the "Senior Note Indenture"), in each case in the respective forms
filed as exhibits to the Registration Statement.
We are of the opinion that, upon compliance with the pertinent
provisions of the Act, the Trust Indenture Act of 1939, as amended, and the
Public Utility Holding Company Act of 1935, as amended, upon compliance with
applicable securities or "blue sky" laws of various jurisdictions, and upon the
adoption of appropriate resolutions by the Board of Directors of the Company or
a duly authorized committee thereof, when the Junior Subordinated Notes, the
Guarantees and the Senior Notes have been issued and sold upon the terms
specified in the order of the Georgia Public Service Commission, when the
Subordinated Note Indenture and any supplemental indenture to be entered into in
connection with the issuance of the Junior Subordinated Notes, the Guarantee
Agreements and the Senior Note Indenture and any supplemental indenture to be
entered into in connection with the issuance of the Senior Notes, as applicable,
have been duly executed and delivered by the proper officers of the Company and
the trustees named therein, and when the Junior Subordinated Notes and the
Senior Notes, as the case may be, have been executed, authenticated and
delivered in accordance with the terms of the Subordinated Note Indenture or the
Senior Note Indenture, as applicable, the Junior Subordinated Notes, the
Guarantees and the Senior Notes will be valid, binding and legal obligations of
the Company (subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally from time to time in force and to general principles of equity,
whether considered in a proceeding at law or in equity).
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the
Registration Statement shall have been declared effective and such effectiveness
shall not have been terminated or rescinded and (ii) there shall not have
occurred any change in law affecting the validity or enforceability of such
security. We have also assumed that none of the terms of any security to be
established subsequent to the date hereof, nor the issuance and delivery of such
security, nor the compliance by the Company with the terms of such security will
violate any applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Company, or any restriction
imposed by any court or governmental body having jurisdiction over the Company.
We are members of the State Bar of New York and we do not express any
opinion concerning any law other than the law of the State of New York.
This opinion is furnished solely for your benefit in connection with
your rendering an opinion to the Company to be filed as Exhibit 5.1 to the
Registration Statement and we hereby consent to your attaching this opinion as
an annex to such opinion. In giving the foregoing consent, we do not hereby
admit that we come within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission
thereunder. This opinion may not be relied upon by you for any other purpose, or
furnished or quoted to or relied upon by any other person, firm or entity for
any purpose, without our prior written consent.
Georgia Power Capital Trust VIII
c/o Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust VIII
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
VIII, a Delaware statutory trust (the "Trust"), in connection with the matters
set forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated March 23, 2001 (the
"Certificate of Trust") as filed with the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on March 23, 2001;
(b) The Certificate of Amendment Pursuant to 3807(E) of the Delaware Statutory
Trust Act, filed with the Secretary of State on July 9, 2001;
(c) The Trust Agreement of the Trust, dated as of March 23, 2001, between the
Company and the trustees of the Trust named therein;
(d) The Registration Statement (the "Registration Statement") on Form S-3,
including a prospectus, dated December 13, 2004 (the "Prospectus"), relating to
the Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Company and the
Trust with the Securities and Exchange Commission on or about December 13, 2004;
(e) A form of Amended and Restated Trust Agreement for the Trust, to be entered
into between the Company, the trustees of the Trust named therein and the
holders, from
Georgia Power Capital Trust VIII
December 13, 2004
Page 2
time to time, of the undivided beneficial interests in the assets of the Trust
(including Exhibits C and E thereto) (the "Trust Agreement"), attached as an
exhibit to the Registration Statement; and
(f) A Certificate of Good Standing for the Trust, dated December 13, 2004,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a certificate for such Preferred Security in the form
prescribed by the Trust Agreement and the payment for such Preferred Security,
in accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
Georgia Power Capital Trust VIII
December 13, 2004
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act.
2. The Preferred Securities of the Trust will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note that the Preferred Security Holders may be
obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Georgia Power Capital Trust IX
c/o Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust IX
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
IX, a Delaware statutory trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated May 22, 2003 (the "Certificate
of Trust") as filed with the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on May 22, 2003;
(b) The Trust Agreement of the Trust, dated as of May 22, 2003, between the
Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a prospectus, dated December 13, 2004 (the "Prospectus"), relating to
the Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Company and the
Trust with the Securities and Exchange Commission on or about December 13, 2004;
(d) A form of Amended and Restated Trust Agreement for the Trust, to be entered
into between the Company, the trustees of the Trust named therein and the
holders, from time to time, of the undivided beneficial interests in the assets
of the Trust (including Exhibits C and E thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
Georgia Power Capital Trust IX
December 13, 2004
Page 2
(e) A Certificate of Good Standing for the Trust, dated December 13, 2004,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a certificate for such Preferred Security in the form
prescribed by the Trust Agreement and the payment for such Preferred Security,
in accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating
Georgia Power Capital Trust IX
December 13, 2004
Page 3
thereto. Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act.
2. The Preferred Securities of the Trust will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note that the Preferred Security Holders may be
obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Georgia Power Capital Trust X
c/o Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust X
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
X, a Delaware statutory trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated May 22, 2003 (the "Certificate
of Trust") as filed with the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on May 22, 2003;
(b) The Trust Agreement of the Trust, dated as of May 22, 2003, between the
Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a prospectus, dated December 13, 2004 (the "Prospectus"), relating to
the Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Company and the
Trust with the Securities and Exchange Commission on or about December 13, 2004;
(d) A form of Amended and Restated Trust Agreement for the Trust, to be entered
into between the Company, the trustees of the Trust named therein and the
holders, from time to time, of the undivided beneficial interests in the assets
of the Trust (including Exhibits C and E thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
Georgia Power Capital Trust X
December 13, 2004
Page 2
(e) A Certificate of Good Standing for the Trust, dated December 13, 2004,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a certificate for such Preferred Security in the form
prescribed by the Trust Agreement and the payment for such Preferred Security,
in accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating
Georgia Power Capital Trust X
December 13, 2004
Page 3
thereto. Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act.
2. The Preferred Securities of the Trust will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note that the Preferred Security Holders may be
obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Georgia Power Capital Trust XI
c/o Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust XI
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
XI, a Delaware statutory trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated December 8, 2004 (the
"Certificate of Trust") as filed with the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 8, 2004;
(b) The Trust Agreement of the Trust, dated as of December 8, 2004, between the
Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a prospectus, dated December 13, 2004 (the "Prospectus"), relating to
the Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Preferred Security"
and collectively, the "Preferred Securities"), filed by the Company and the
Trust with the Securities and Exchange Commission on or about December 13, 2004;
(d) A form of Amended and Restated Trust Agreement for the Trust, to be entered
into between the Company, the trustees of the Trust named therein and the
holders, from time to time, of the undivided beneficial interests in the assets
of the Trust (including Exhibits C and E thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
Georgia Power Capital Trust XI
December 13, 2004
Page 2
(e) A Certificate of Good Standing for the Trust, dated December 13, 2004,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate of Trust are in full force and effect and
have not been amended, (ii) except to the extent provided in paragraph 1 below,
the due organization or due formation, as the case may be, and valid existence
in good standing of each party to the documents examined by us under the laws of
the jurisdiction governing its creation, organization or formation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) that each of the parties to the documents examined by us has the power
and authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a certificate for such Preferred Security in the form
prescribed by the Trust Agreement and the payment for such Preferred Security,
in accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating
Georgia Power Capital Trust XI
December 13, 2004
Page 3
thereto. Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act.
2. The Preferred Securities of the Trust will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware. We note that the Preferred Security Holders may be
obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other person for any purpose.
Very truly yours,
/s/Richards, Layton & Finger
Exhibit 12.1
12/2/2004
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges for
the five years ended December 31, 2003
and the year to date September 30, 2004
Nine
Months
Ended
Year ended December 31, September 30,
------------------------------------------------------------ ---------------
1999 2000 2001 2002 2003 2004
---- ---- ---- ---- ---- ----
-----------------------------Thousands of Dollars----------------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Earnings before income taxes $ 896,272 $ 921,857 $ 976,319 $ 977,583 $ 998,324 $ 933,183
Interest expense, net of amounts capitalized 196,953 211,409 185,231 169,417 184,138 168,666
Distributions on mandatorily redeemable
preferred securities 65,774 59,104 59,104 62,553 59,675 15,839
AFUDC - Debt funds 12,429 23,396 13,574 8,405 5,415 5,613
---------- ---------- ----------- ---------- ---------- -----------
Earnings as defined $1,171,428 $1,215,766 $1,234,228 $1,217,958 $1,247,552 $1,123,301
========== ========== =========== ========== ========== ===========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 164,375 $ 171,994 $ 162,546 $ 138,850 $ 158,587 $ 124,040
Interest on affiliated loans 0 0 12,389 9,793 3,194 31,232
Interest on interim obligations 19,787 28,262 12,692 3,074 0 0
Amort of debt disc, premium and expense, net 15,127 14,257 15,106 16,108 15,598 11,617
Other interest charges 10,093 20,292 (3,928) 9,995 12,174 7,390
Distributions on mandatorily redeemable
preferred securities 65,774 59,104 59,104 62,553 59,675 15,839
---------- ---------- ----------- ---------- ---------- -----------
Fixed charges as defined $ 275,156 $ 293,909 $ 257,909 $ 240,373 $ 249,228 $ 190,118
========== ========== =========== ========== ========== ===========
RATIO OF EARNINGS TO FIXED CHARGES 4.26 4.14 4.79 5.07 5.01 5.91
==== ==== ==== ==== ==== ====
Exhibit 12.2
12/2/2004
GEORGIA POWER COMPANY
Computation of ratio of earnings to fixed charges plus preferred
dividend requirements for the five years ended December 31, 2003
and the year to date September 30, 2004
Nine
Months
Ended
Year ended December 31, September 30,
----------------------------------------------------------- -------------
1999 2000 2001 2002 2003 2004
---- ---- ---- ---- ---- ----
--------------------------------Thousands of Dollars-----------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Earnings before income taxes $ 896,272 $ 921,857 $ 976,319 $ 977,583 $ 998,324 $ 933,183
Interest expense, net of amounts capitalized 196,953 211,409 185,231 169,417 184,138 168,666
Distributions on mandatorily redeemable preferred
securities 65,774 59,104 59,104 62,553 59,675 15,839
AFUDC - Debt funds 12,429 23,396 13,574 8,405 5,415 5,613
---------- ---------- ---------- ---------- ---------- -----------
Earnings as defined $1,171,428 $1,215,766 $1,234,228 $1,217,958 $1,247,552 $1,123,301
========== ========== ========== ========== ========== ===========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 164,375 $ 171,994 $ 162,546 $ 138,850 $ 158,587 $ 124,040
Interest on affiliated loans 0 0 12,389 9,793 3,194 31,232
Interest on interim obligations 19,787 28,262 12,692 3,074 0 0
Amort of debt disc, premium and expense, net 15,127 14,257 15,106 16,108 15,598 11,617
Other interest charges 10,093 20,292 (3,928 9,995 12,174 7,390
Distributions on mandatorily redeemable preferred
securities 65,774 59,104 59,104 62,553 59,675 15,839
---------- ---------- ---------- ---------- ---------- -----------
Fixed charges as defined 275,156 293,909 257,909 240,373 249,228 190,118
Tax deductible preferred dividends 283 270 268 268 268 201
---------- ---------- ---------- ---------- ---------- -----------
---------- ---------- ---------- ---------- ---------- -----------
275,439 294,179 258,177 240,641 249,496 190,319
---------- ---------- ---------- ---------- ---------- -----------
Non-tax deductible preferred dividends 1,446 404 402 402 402 302
Ratio of net income before taxes to net income x 1.650 x 1.646 x 1.599 x 1.581 x 1.582 x 1.588
---------- ---------- ---------- ---------- ---------- -----------
---------- ---------- ---------- ---------- ---------- -----------
Pref dividend requirements before income taxes 2,386 665 643 636 636 480
---------- ---------- ---------- ---------- ---------- -----------
---------- ---------- ---------- ---------- ---------- -----------
Fixed charges plus pref dividend requirements $ 277,825 $ 294,844 $ 258,820 $ 241,277 $ 250,132 $ 190,799
========== ========== ========== ========== ========== ===========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 4.22 4.12 4.77 5.05 4.99 5.89
==== ==== ==== ==== ==== ====
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement of
Georgia Power Company on Form S-3 of our reports dated March 1, 2004 (which
report on the financial statements expresses an unqualified opinion and includes
an explanatory paragraph referring to the Company's change in its method of
accounting for asset retirement obligations), relating to the financial
statements and financial statement schedule as of and for the years ended
December 31, 2003 and 2002, appearing in the Annual Report on Form 10-K of
Georgia Power Company and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/DELOITTE & TOUCHE LLP
Atlanta, Georgia
December 10, 2004
Exhibit 24.1
November 17, 2004
C.B. (Mike) Harreld, Thomas A. Fanning and E. Wayne Boston
Dear Sirs:
Georgia Power Company proposes to file with the Securities and Exchange
Commission a registration statement or statements under the Securities Act of
1933, as amended, covering not to exceed an aggregate of $2.2 billion (including
$460 million of previously registered but unused securities) in any combination
of preferred securities of a statutory trust or trusts (or other special entity
or entities) and guarantee or guarantees, debt instruments and preferred stock
of Georgia Power Company.
Georgia Power Company and the undersigned directors and officers of
said Company, individually as a director and/or as an officer of the Company,
hereby make, constitute and appoint each of you our true and lawful Attorney
(with full power of substitution) for each of us and in each of our names,
places and steads to sign and cause to be filed with the Securities and Exchange
Commission the aforementioned registration statement or statements and any
appropriate amendment or amendments thereto (including post-effective
amendments), to be accompanied in each case by a prospectus and any
appropriately amended prospectus or supplement thereto and any necessary
exhibits.
Georgia Power Company hereby authorizes you or any one of you to
execute said registration statement or statements and any amendments thereto
(including post-effective amendments) on its behalf as attorney-in-fact for it
and its authorized officers, and to file the same as aforesaid.
The undersigned directors and officers of Georgia Power Company hereby
authorize you or any of you to sign said registration statement or statements on
their behalf as attorney-in-fact and to amend, or remedy any deficiencies with
respect to, said registration statement or statements by appropriate amendment
or amendments (including post-effective amendments) and to file the same as
aforesaid.
Yours very truly,
GEORGIA POWER COMPANY
By /s/Michael D. Garrett
Michael D. Garrett
President and Chief Executive Officer
- 2 -
/s/Juanita P. Baranco /s/Richard W. Ussery
Juanita P. Baranco Richard W. Ussery
/s/Robert L. Brown, Jr. /s/William Jerry Vereen
Robert L. Brown, Jr. William Jerry Vereen
/s/Ronald D. Brown /s/E. Jenner Wood, III
Ronald D. Brown E. Jenner Wood, III
/s/Anna R. Cablik /s/C. B. (Mike) Harreld
Anna R. Cablik C. B. (Mike) Harreld
/s/Michael D. Garrett /s/W. Ron Hinson
Michael D. Garrett W. Ron Hinson
/s/David M. Ratcliffe /s/Janice G. Wolfe
David M. Ratcliffe Janice G. Wolfe
/s/D. Gary Thompson
D. Gary Thompson
- 3 -
Extract from minutes of meeting of the board of directors of Georgia Power
Company.
RESOLVED: That for the purpose of signing and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
a registration statement or statements covering up to $2.2 billion (including
$460 million of previously registered but unused securities) of preferred
securities of a statutory trust or trusts (or other special purpose entity or
entities) and guarantee or guarantees, debt instruments and preferred stock of
Georgia Power Company, or any combination of such securities, and of amending
such registration statement or statements or remedying any deficiencies with
respect thereto by appropriate amendment or amendments (including post-effective
amendments) to such registration statement or statements (both before and after
such statement or statements become effective), this Company, its officers and
the members of its Board of Directors are authorized to grant their several
powers of attorney to C. B. (Mike) Harreld, Thomas A. Fanning and E. Wayne
Boston.
The undersigned officer of Georgia Power Company does hereby certify
that the foregoing is a true and correct copy of a resolution duly and regularly
adopted at a meeting of the Board of Directors of Georgia Power Company, duly
held on November 17, 2004, at which a quorum was in attendance and voting
throughout, and that said resolution has not since been rescinded but is still
in full force and effect.
Dated: December 13, 2004 GEORGIA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Senior Notes
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Junior Subordinated Notes
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER CAPITAL TRUST VIII
(Exact name of obligor as specified in its charter)
Delaware 58-6442211
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities Guarantee
(Georgia Power Capital Trust VIII)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER CAPITAL TRUST IX
(Exact name of obligor as specified in its charter)
Delaware 32-6022295
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.6
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities Guarantee
(Georgia Power Capital Trust IX)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.7
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER CAPITAL TRUST X
(Exact name of obligor as specified in its charter)
Delaware 32-6022296
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.8
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities Guarantee
(Georgia Power Capital Trust X)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.9
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER CAPITAL TRUST XI
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
Exhibit 25.10
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Thomas F. Godfrey
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
1 Chase Manhattan Plaza, 25th Floor
New York, NY 10081
Tel: (212) 552-2192
(Name, address and telephone number of agent for service)
GEORGIA POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0257110
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
(Address of principal executive offices) (Zip Code)
Trust Preferred Securities Guarantee
(Georgia Power Capital Trust XI)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(see Exhibit 7 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 8th day of
December, 2004.
JPMORGAN CHASE BANK, N.A.
By /s/ Carol Ng
-------------------------
Carol Ng
Vice President
-3-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2004, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 19,187
Interest-bearing balances ..................................... 33,195
Securities:
Held to maturity securities......................................... 121
Available for sale securities....................................... 53,698
Federal funds sold and securities purchased under
agreements to resell
Federal funds sold in domestic offices 33,011
Securities purchased under agreements to resell 82,951
Loans and lease financing receivables:
Loans and leases held for sale................................. 17,558
Loans and leases, net of unearned income $171,323
Less: Allowance for loan and lease losses 2,382
Loans and leases, net of unearned income and
allowance ..................................................... 168,941
Trading Assets ..................................................... 196,355
Premises and fixed assets (including capitalized leases)............ 5,578
Other real estate owned ............................................ 101
Investments in unconsolidated subsidiaries and
associated companies........................................... 94
Customers' liability to this bank on acceptances
outstanding ................................................... 391
Intangible assets
Goodwill....................................................... 2,554
Other Intangible assets........................................ 5,411
Other assets ....................................................... 42,626
TOTAL ASSETS ....................................................... $661,772
=======
LIABILITIES
Deposits
In domestic offices ........................................... $209,624
Noninterest-bearing .........................82,597
Interest-bearing ............................27,027
In foreign offices, Edge and Agreement
subsidiaries and IBF's ........................................ 120,503
Noninterest-bearing...........................7,003
Interest-bearing ...........................113,500
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 22,032
Securities sold under agreements to repurchase 96,912
Trading liabilities ................................................ 107,450
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases)...................... 21,794
Bank's liability on acceptances executed and outstanding............ 391
Subordinated notes and debentures .................................. 12,821
Other liabilities .................................................. 31,690
TOTAL LIABILITIES .................................................. 623,217
Minority Interest in consolidated subsidiaries ..................... 348
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................... 0
Common stock ....................................................... 1,785
Surplus (exclude all surplus related to preferred stock)........... 16,954
Retained earnings................................................... 20,050
Accumulated other comprehensive income.............................. (582)
Other equity capital components..................................... 0
TOTAL EQUITY CAPITAL ............................................... 38,207
--------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $661,772
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON )DIRECTORS
LAWRENCE A. BOSSIDY )
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