CERTIFICATE OF NOTIFICATION
Filed by
GEORGIA POWER COMPANY
Pursuant to order of the Securities and Exchange Commission dated
February 4, 1994, in the matter of File No. 70-7832.
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Georgia Power Company (the "Company") hereby certifies to
said Commission, pursuant to Rule 24, as follows with respect to
the transactions described particularly in Amendment No. 11
(Post-Effective No. 9) herein:
1. A Loan Agreement was made and entered into by and
between the Company and the Development Authority of
Monroe County (the "Monroe Authority") and all
transactions relating thereto (including the issuance
by the Company of its promissory note pursuant thereto)
were carried out in accordance with the terms and
conditions of and for the purposes represented by the
application, as amended, and of said order with respect
thereto.
2. The issuance and delivery by the Company of $28,065,000
aggregate principal amount of First Mortgage Bonds,
5.40% Pollution Control Series due January 1, 2024 (the
"Collateral Bonds"), pursuant to the Supplemental
Indenture dated as of January 1, 1994, between the
Company and Chemical Bank, as Trustee, supplementing
the Company's first mortgage bond Indenture, were
carried out in accordance with the terms and conditions
of and for the purposes represented by the application,
as amended, and of said order with respect thereto.
3. Filed herewith are the following exhibits:
Exhibit A - Copy of Loan Agreement between the Company
and the Monroe Authority, dated as of
January 1, 1994, relating to the First
Series 1994 Pollution Control Revenue
Bonds.
Exhibit B - Copy of Trust Indenture of the Monroe
Authority to NationsBank of Georgia,
National Association, as Trustee, dated as
of January 1, 1994, relating to the First
Series 1994 Pollution Control Revenue
Bonds.
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Exhibit C - Copy of Supplemental Indenture, dated as of
January 1, 1994, between the Company and
Chemical Bank, as Trustee, relating to the
Collateral Bonds.
Exhibit D - Opinion of Troutman Sanders, dated February
11, 1994.
Dated February 11, 1994 GEORGIA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
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EXHIBIT A
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
and
GEORGIA POWER COMPANY
_______________
LOAN AGREEMENT
_______________
Dated as of January 1, 1994
Relating to Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
First Series 1994
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LOAN AGREEMENT
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference
only and is not a part of this Loan Agreement)
PAGE
ARTICLE I
DEFINITIONS 1
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project . . 2
SECTION 2.2. Issuance of First Series 1994 Bonds; Additional
Bonds . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer . . . . . . . . . . . . . . . . 3
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable . . . . . . . . . . . . . . . . . . . 3
SECTION 3.3. Obligation of the Company Unconditional . . . 3
SECTION 3.4. First Mortgage Bonds . . . . . . . . . . . . . 4
SECTION 3.5. Assignment and Pledge of Payments and Rights Under
the Notes, the Agreement and the First Mortgage
Bonds . . . . . . . . . . . . . . . . . . . . 4
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . . . 5
SECTION 4.2. Indemnity Against Claims . . . . . . . . . . . 5
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted . 5
SECTION 4.4. Annual Statement . . . . . . . . . . . . . . . 6
SECTION 4.5. Further Assurances and Corrective Instruments 6
SECTION 4.6. Maintenance of Project by Company . . . . . . 6
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . . 6
SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . . . 7
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ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . . 7
SECTION 5.2. Remedies on Default . . . . . . . . . . . . . 9
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses 9
SECTION 5.4. No Additional Waiver Implied by One Waiver . . 9
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement . . . . . . . . . . . . 10
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . . . 10
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . . . 10
SECTION 6.4. Severability . . . . . . . . . . . . . . . . . 10
SECTION 6.5. Amounts Remaining in the Bond Fund . . . . . . 10
SECTION 6.6. Amendments . . . . . . . . . . . . . . . . . . 10
SECTION 6.7. Execution in Counterparts . . . . . . . . . . 11
SECTION 6.8. Applicable Law . . . . . . . . . . . . . . . . 11
SECTION 6.9. Captions . . . . . . . . . . . . . . . . . . . 11
SECTION 6.10. Other Financing . . . . . . . . . . . . . . . 11
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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LOAN AGREEMENT dated as of January 1, 1994 between the
DEVELOPMENT AUTHORITY OF MONROE COUNTY, a public body corporate
and politic duly organized and existing under the Constitution and
laws of the State of Georgia (the "Issuer"), including
particularly the Development Authorities Law set forth in the
Official Code of Ga. Ann. Section 36-62-1, et seq., as amended
(the "Act"), and GEORGIA POWER COMPANY, a corporation organized
and existing under the laws of the State of Georgia (the
"Company"), evidencing the agreement of the parties hereto.
In consideration of the respective representations and
agreements hereinafter contained, the parties hereto agree as
follows (provided that in the performance of the agreements of the
Issuer herein contained, any obligation it may thereby incur for
the payment of money shall not be a general debt, liability or
obligation of the Issuer, or of the State of Georgia or any
political subdivision thereof but shall be payable solely out of
the revenues and proceeds derived from this Agreement and the
Notes (hereinafter defined), the sale of the Bonds referred to
herein and any amounts received from the first mortgage bonds
referred to in Section 3.4 hereof):
ARTICLE I
DEFINITIONS
"Additional Bonds", "Bondholder", "Bonds", "Bond Fund",
"Government Obligations" and "Trustee" have the same meanings
given and assigned to such words in Article I of the Indenture
(hereinafter defined).
"Plans" and "Project" have the same meanings given and
assigned to such words in Article I of the Original Agreement
(hereinafter defined).
"Agreement" means this Loan Agreement and any amendments and
supplements hereto.
"Event of Default" means any of the occurrences enumerated
in Section 5.1 of this Agreement.
"First Mortgage" means the Indenture dated as of March 1,
1941 between the Company and The New York Trust Company (to which
Chemical Bank is successor by merger), as trustee, as heretofore
and hereafter supplemented and amended by various supplemental
indentures, including but not limited to the Supplemental
Indenture and the various Secondary Supplemental Indentures, all
dated as of January 1, 1994.
"First Mortgage Bonds" means the first mortgage bonds issued
under the First Mortgage pursuant to, and having the terms
described in, Section 3.4 hereof.
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"First Series 1994 Bonds" means the bonds authorized to be
issued under Section 2.02 of the Indenture.
"Indenture" means the Trust Indenture dated as of January 1,
1994, relating to Pollution Control Revenue Bonds, between the
Issuer and NationsBank of Georgia, National Association, as
Trustee, pursuant to which the Bonds are authorized to be issued,
and including any indenture supplemental thereto.
"Loan" means the loan to be made by the Issuer to the Company
of the proceeds (which shall be deemed to include the underwriting
discounts, if any, and original issue discount, if any) of the
sale of the Bonds, exclusive of any accrued interest paid by the
initial purchasers of the Bonds upon the delivery thereof.
"Notes" means the non-negotiable promissory notes of the
Company issued pursuant to Section 3.2 hereof, in the form set
forth in Exhibit A hereto.
"Original Agreement" means the Loan Agreement, dated as of
March 21, 1984, between the Issuer and the Company, delivered in
connection with the issuance of the Refunded Bonds.
"Refunded Bonds" means the Issuer's Pollution Control Revenue
Bonds (Georgia Power Company Plant Scherer Project), First Series
1984.
ARTICLE II
ACQUISITION AND COMPLETION OF THE PROJECT;
ISSUANCE OF THE BONDS
SECTION 2.1. Acquisition and Completion of the Project. The
Company represents that it has caused the acquisition,
construction, installation and equipping of the Project to be
completed substantially in accordance with the Plans.
SECTION 2.2. Issuance of First Series 1994 Bonds; Additional
Bonds. In order to provide funds for the purpose set forth in
Section 3.1 hereof, the Issuer agrees that it will initially issue
and deliver First Series 1994 Bonds to the purchasers thereof at a
price to be approved in advance by the Company and apply and
deposit the proceeds thereof in accordance with the terms of the
Indenture. The Indenture shall be satisfactory in form and
substance to the Company and shall provide the manner in which,
and the purposes for which, proceeds of Bonds may be used and
invested.
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If no Event of Default shall have occurred and be continuing,
the Issuer will authorize the sale of and use its best efforts to
sell from time to time, to the extent permitted by law, Additional
Bonds, in amounts specified by the Company and upon the terms and
conditions provided in the Indenture, for any purpose permitted by
the Indenture. The Issuer will deposit the proceeds of any such
Additional Bonds with the Trustee in accordance with the terms of
the Indenture.
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT
SECTION 3.1. Loan by Issuer. The Issuer hereby agrees to
make the Loan to the Company for the purpose, in the case of the
proceeds of the First Series 1994 Bonds, of refunding $28,065,000
in aggregate principal amount of the Refunded Bonds within 90 days
after the date of initial issuance of the First Series 1994 Bonds.
The Company hereby agrees to cause the proceeds of the First
Series 1994 Bonds to be applied exclusively to the foregoing
purpose and to cause such Refunded Bonds to be redeemed within 90
days after the date of initial issuance of the First Series 1994
Bonds.
SECTION 3.2. Delivery of Notes by Company; Other Amounts
Payable. In order to evidence the Loan and the obligation of the
Company to repay the same, the Company shall execute and deliver
for each series of Bonds a Note in a principal amount equal to the
aggregate principal amount of, and having the same stated rate or
rates of interest as, such series of Bonds. Each Note shall be
dated the date of the initial issuance of, and mature on the same
maturity date as, the series of Bonds issued concurrently
therewith. If, at the date any payment on the Bonds is due, there
are any available moneys in the Bond Fund, such moneys shall be
credited against the payment then due under the Notes, first in
respect of interest and then, to the extent of remaining moneys,
in respect of principal.
The Company will also pay: (i) the fees, charges and
reasonable expenses of the Trustee and any paying agents under the
Indenture, such fees, charges and reasonable expenses to be paid
directly to the Trustee or paying agents for their respective
accounts as and when such fees, charges and reasonable expenses
become due and payable, (ii) any expenses and costs incurred or to
be incurred by virtue of the issuance of Additional Bonds and
(iii) any expenses in connection with any redemption of the Bonds.
SECTION 3.3. Obligation of the Company Unconditional. The
obligation of the Company to make payments as provided in the
Notes and to perform and observe the other agreements on its part
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contained herein shall be absolute and unconditional
notwithstanding any change in the tax or other laws of the United
States of America or of the State of Georgia or any political
subdivision of either thereof or any failure of the Issuer to
perform and observe any agreement, whether express or implied, or
any duty, liability or obligation arising out of or connected with
this Agreement. Nothing contained in this Section 3.3 shall be
construed to release the Issuer from the performance of any of the
agreements on its part herein contained; and, in the event the
Issuer should fail to perform any such agreement on its part, the
Company may institute such action against the Issuer as the
Company may deem necessary to compel performance or recover its
damages for nonperformance so long as such action shall not
violate the agreements on the part of the Company contained in the
preceding sentence, but in no event shall the Company be entitled
to any diminution of the amounts payable under the Notes and as
provided in Section 3.2 hereof.
SECTION 3.4. First Mortgage Bonds. Concurrently with the
Issuer's delivery of each series of Bonds to the Trustee, the
Company will execute and deliver to the Trustee, in order to
secure the Company's obligation under the Note issued concurrently
therewith, First Mortgage Bonds, registered in the name of the
Trustee, equal in principal amount to such series of Bonds and
having the same stated rate or rates of interest and the same
maturity date or dates as such series of Bonds; provided, however,
that if such series of Bonds is issued for the purpose of
refunding all of the Bonds then outstanding, the Company may elect
not to deliver such First Mortgage Bonds.
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Notes, the Agreement and the First Mortgage Bonds. The
Issuer shall assign to the Trustee as security under the Indenture
all rights, title and interests of the Issuer in and to (i) the
Notes and all payments thereunder, (ii) this Agreement and all
moneys receivable hereunder (except for payments under Sections
4.2 and 5.3 hereof) and (iii) the First Mortgage Bonds. The
Company assents to such assignment and hereby agrees that, as to
the Trustee, its obligations to make such payments shall be
absolute and shall not be subject to any defense or any right of
set-off, counterclaim or recoupment arising out of any breach by
the Issuer or the Trustee of any obligation to the Company,
whether hereunder or otherwise, or out of any indebtedness or
liability at any time owing to the Company by the Issuer or the
Trustee.
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ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project. The Issuer hereby acknowledges
that it shall have no rights to the use or possession of the
Project. The Issuer hereby further acknowledges that the Project
will not constitute any part of the security for the Bonds other
than any interest in the Company's property shared by all holders
of the Company's first mortgage bonds issued under the First
Mortgage, including the First Mortgage Bonds.
SECTION 4.2. Indemnity Against Claims. The Company will pay
and discharge and will indemnify and hold harmless the Issuer from
(a) any lien or charge upon payments by the Company to the Issuer
under the Notes or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the
Issuer under the Notes or hereunder and (c) any and all liability,
damages, costs and expenses arising out of or resulting from the
transactions contemplated by this Agreement and the Indenture,
including the reasonable fees and expenses of counsel. If any such
lien or charge is sought to be imposed upon payments, or any such
taxes, assessments, impositions or other charges are sought to be
imposed, or any such liability, damages, costs and expenses are
sought to be imposed, the Issuer will give prompt notice to the
Company, and the Company shall have the sole right and duty to
assume, and will assume, the defense thereof, with full power to
litigate, compromise or settle the same in its sole discretion.
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted. The Company agrees
that during the term of this Agreement it will maintain its
corporate existence and qualification to do business in Georgia,
will not dissolve or otherwise dispose of all or substantially all
of its assets and will not consolidate with or merge into another
corporation or permit one or more other corporations to
consolidate with or merge into it; provided, that the Company may,
without violating the agreements contained in this Section 4.3,
consolidate with or merge into another domestic corporation (i.e.,
a corporation incorporated and existing under the laws of one of
the states of the United States of America or under the laws of
the United States of America) or permit one or more other
corporations to consolidate with or merge into it, or sell or
otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and thereafter
dissolve, provided that, in the event the Company is not the
surviving, resulting or transferee corporation, as the case may
be, the surviving, resulting or transferee corporation assumes,
accepts and agrees in writing to pay and perform all of the
obligations of the Company herein and under the Notes and is a
Georgia corporation or is qualified to do business in Georgia as a
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foreign corporation and that such consolidation or merger does not
result in the loss of the exclusion from gross income for federal
income tax purposes of interest on the outstanding Bonds.
SECTION 4.4. Annual Statement. The Company agrees to have an
annual audit made by its regular independent public accountants
and within 180 days after the close of each fiscal year to furnish
the Trustee and any Bondholder who may so request a balance sheet
and statement of income and surplus showing the financial
condition of the Company and its consolidated subsidiaries, if
any, at the close of such fiscal year and the results of
operations of the Company and its consolidated subsidiaries, if
any, for such fiscal year, accompanied by a certificate or opinion
of said accountants. The requirements of this Section 4.4 may be
satisfied by the submission to the Trustee and each Bondholder who
may request such information of the Company's annual report to its
shareholders.
SECTION 4.5. Further Assurances and Corrective Instruments.
The Issuer and the Company agree that they will, from time to
time, execute, acknowledge and deliver, or cause to be executed,
acknowledged and delivered, such supplements hereto and such
further instruments as may reasonably be required for correcting
any inadequate or incorrect description of the Project and for
carrying out the intention or facilitating the performance of this
Agreement.
SECTION 4.6. Maintenance of Project by Company. The Company
agrees that during the term of this Agreement it will pay all
costs of operating, maintaining and repairing the Project;
provided, however, that the Company shall not be under any
obligation to renew, repair or replace any inadequate, obsolete,
worn-out, unsuitable, undesirable or unnecessary portion of the
Project.
SECTION 4.7. Redemption or Purchase of Bonds. The Issuer
shall take all steps then necessary under the applicable
provisions of the Indenture for the redemption or purchase of
Bonds upon receipt by the Issuer and the Trustee from the Company
of a written notice specifying:
(a) the principal amount of Bonds to be redeemed or
purchased;
(b) the date of such redemption or purchase, which date,
in the case of a redemption of Bonds, shall be at least
forty-five (45) days subsequent to the receipt by the Trustee
of such notice; and
(c) in the case of a redemption of Bonds, directions to
mail a notice of redemption.
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In the case of a purchase of Bonds, the written notice to the
Trustee shall, if available moneys in the Bond Fund are
insufficient to purchase the principal amount of Bonds specified
in (a) above, be accompanied by a deposit into the Bond Fund of
cash or Government Obligations sufficient, together with other
moneys then available in the Bond Fund, to make the directed
purchase of Bonds.
SECTION 4.8. Non-Arbitrage Covenant. The Company and the
Issuer each covenants that it shall take no action, nor shall the
Company approve the Trustee's taking any action or making any
investment or use of the proceeds of the Bonds, which would cause
the Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended, and
the proposed, temporary or final regulations thereunder as such
may be applicable or proposed to be applicable to the Bonds at the
time of such action, investment or use. Without limiting the
generality of the foregoing, the Company covenants and agrees to
comply with the requirements of Section 148(f) of the Internal
Revenue Code of 1986, as amended, and any proposed, temporary or
final regulations thereunder as may be applicable to the Bonds or
the proceeds derived from the sale of the Bonds or any other
moneys.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default. Each of the following shall
be an "Event of Default" under this Agreement:
(a) Failure by the Company to pay when due the
amounts required to be paid pursuant to the Notes or the
failure by the Company to pay within 30 days of the date
due any amounts required to be paid pursuant to this
Agreement.
(b) Failure by the Company to observe and perform
any covenant, condition or agreement on its part to be
observed or performed hereunder, other than as referred
to in subsection (a) of this Section 5.1, for a period
of 60 days after written notice, specifying such failure
and requesting that it be remedied, is given to the
Company by the Issuer or the Trustee, unless the Issuer
and the Trustee shall agree in writing to an extension
of such period prior to its expiration; provided,
however, if the failure stated in the notice cannot be
corrected within the applicable period, the Issuer and
the Trustee will not unreasonably withhold their consent
to an extension of such period if corrective action is
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instituted by the Company within the applicable period
and diligently pursued until the default is corrected.
(c) The dissolution or liquidation of the Company,
except as permitted by Section 4.3 hereof, or the
commencement by the Company of any case or proceeding
seeking to have an order for relief entered on its
behalf as a debtor or to adjudicate it as bankrupt or
insolvent or seeking reorganization, liquidation,
dissolution, winding-up, arrangement, composition,
readjustment of its debts or any other relief under any
bankruptcy, insolvency, reorganization or other similar
law of the United States or any state, or adjudication
of the Company as bankrupt, or an assignment by the
Company for the benefit of its creditors, or the entry
by the Company into an agreement of composition with its
creditors, or the approval by a court of competent
jurisdiction of a petition applicable to the Company in
any proceeding for its reorganization instituted under
the provisions of Title 11 of the United States Code, as
amended, or under any similar statutory provision which
may hereafter be enacted.
The foregoing provisions of Section 5.1(b) are subject to the
limitation that, if by reason of force majeure the Company is
unable in whole or in part to carry out its agreements herein
contained other than those set forth in Sections 4.3 and 4.8
hereof, an Event of Default shall not be deemed to have occurred
during the continuance of such inability. The term "force majeure"
as used herein shall mean the following: acts of God; strikes;
lockouts or other industrial disturbances; acts of public enemies;
orders of any kind of the government of the United States or of
the State of Georgia or any of their departments, agencies or
officials or of any civil or military authority; insurrections;
riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraints of government and people; civil disturbances;
explosions; breakage or accident to machinery, transmission lines,
pipes or canals; partial or entire failure of utilities; or any
other cause or event not reasonably within the control of the
Company. The Company agrees, however, to remedy to the extent
practicable with all reasonable dispatch the effects of any force
majeure preventing the Company from carrying out its agreements;
provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of
the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances
by acceding to the demands of the opposing party or parties when
such course is in the judgment of the Company unfavorable to the
Company.
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SECTION 5.2. Remedies on Default. Whenever any Event of
Default shall have occurred and be continuing, the Issuer may, in
addition to any other remedy now or hereafter existing at law, in
equity or by statute, take either or both of the following
remedial steps:
(a) By written notice to the Company, the Issuer may
declare all amounts payable pursuant to the Notes to be
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Issuer may take whatever action at law or in
equity may appear necessary or desirable to collect the
amounts referred to in (a) above then due and thereafter to
become due, or to enforce performance and observance of any
obligation, agreement or covenant of the Company under this
Agreement.
Any amounts collected pursuant to action taken under this Section
5.2 shall be paid into the Bond Fund and applied in accordance
with the provisions of the Indenture or, if the Bonds have been
fully paid (or provision for payment thereof has been made in
accordance with the provisions of the Indenture) and the fees and
expenses of the Trustee and the paying agents and all other
amounts required to be paid under the Indenture shall have been
paid, to the Company.
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Notes or this Agreement and the Issuer should employ attorneys
or incur other expenses for the collection of amounts payable
hereunder or the enforcement of performance or observance of any
obligation or agreement on the part of the Company herein
contained, the Company agrees that it will on demand therefor pay
to the Issuer the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Issuer.
SECTION 5.4. No Additional Waiver Implied by One Waiver. In
the event any agreement contained in the Notes or in this
Agreement should be breached by either party and thereafter waived
by the other party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach
hereunder.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of This Agreement. This Agreement shall
remain in full force and effect from the date hereof until such
time as all of the outstanding Bonds shall have been fully paid or
provision made therefor in accordance with the provisions of the
Indenture, whichever shall first occur, and the fees and expenses
of the Trustee and any paying agents and all other amounts payable
by the Company under this Agreement and the Notes shall have been
paid.
SECTION 6.2. Notices. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be
deemed given when delivered or mailed by registered or certified
mail, postage prepaid, addressed as follows: if to the Issuer, c/o
Board of Commissioners of Monroe County, Forsyth, Georgia 31029;
if to the Company, at 333 Piedmont Avenue, N.E., Atlanta, Georgia
30308, Attention: Treasurer, with copies to Southern Company
Services, Inc., 64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department; and if to the Trustee,
at 600 Peachtree Street, N.E., Suite 900, Atlanta, Georgia 30308,
Attention: Corporate Trust Department. A duplicate copy of each
notice, certificate or other communication given hereunder by
either the Issuer or the Company to the other shall also be given
to the Trustee. The Issuer, the Company and the Trustee may, by
notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 6.3. Binding Effect. This Agreement shall inure to
the benefit of and shall be binding upon the Issuer, the Company
and their respective successors and assigns, subject, however, to
the limitations contained in Section 4.3 hereof.
SECTION 6.4. Severability. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court
of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
SECTION 6.5. Amounts Remaining in the Bond Fund. Any amounts
remaining in the Bond Fund upon termination of this Agreement
shall, to the extent provided by Section 5.08 of the Indenture,
belong to and be paid to the Company by the Trustee.
SECTION 6.6. Amendments. This Agreement may not be
effectively terminated except in accordance with the provisions
hereof and may not be effectively amended except by a written
agreement in accordance with Article XI of the Indenture and
signed by the parties hereto.
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SECTION 6.7. Execution in Counterparts. This Agreement may
be executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
SECTION 6.8. Applicable Law. This Agreement and the Notes
shall be governed by and construed in accordance with the laws of
the State of Georgia.
SECTION 6.9. Captions. The captions or headings in this
Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of this
Agreement.
SECTION 6.10. Other Financing. Notwithstanding anything in
this Agreement to the contrary, the Issuer and the Company may
hereafter enter into agreements to provide for the financing or
refinancing of costs of the Project or any portion thereof in lieu
of or in addition to the provisions herein for Additional Bonds.
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<PAGE>
IN WITNESS WHEREOF, the Issuer and the Company have caused
this Agreement to be executed in their respective corporate names
and their respective corporate seals to be hereunto affixed and
attested by their duly authorized officers, all as of the date
first above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By:__________________________
Chairman
ATTEST:
___________________________
Secretary
GEORGIA POWER COMPANY
By:_____________________________
Vice President
ATTEST:
___________________________
Assistant Secretary <PAGE>
<PAGE>
EXHIBIT A
GEORGIA POWER COMPANY
PROMISSORY NOTE
GEORGIA POWER COMPANY ("Georgia"), a corporation organized
and existing under the laws of the State of Georgia, acknowledges
itself indebted and for value received hereby promises to pay to
the order of the Development Authority of Monroe County (the
"Authority"), and its successors and assigns, the principal sum of
___________________ DOLLARS ($________ ) together with interest on
the unpaid principal balance thereof from the date hereof until
Georgia's obligation with respect to the payment of such sum shall
be discharged at the rate borne by the Bonds referred to below.
As additional interest hereon there shall be payable, and Georgia
promises to pay when due, amounts which shall equal the premium,
if any, due on such Bonds in connection with the redemption
thereof.
This Note is issued to evidence a portion of the Loan (as
defined in the Agreement hereinafter referred to) of the Authority
to Georgia and the obligation of Georgia to repay the same and
shall be governed by and be payable in accordance with the terms
and conditions of a loan agreement (the "Agreement") between the
Authority and Georgia dated as of January 1, 1994, pursuant to
which the Authority has loaned to Georgia the proceeds of the sale
of the Authority's $__________ of Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project), ____________ Series
___________ (the "Bonds"). Additional similar Notes may be issued
by Georgia as provided in the Agreement. This Note (together with
the Agreement) has been assigned to NationsBank of Georgia,
National Association (the "Trustee"), acting pursuant to a trust
indenture dated as of January 1, 1994 (the "Indenture") between
the Authority and the Trustee, and may not be assigned by the
Trustee except to a successor Trustee pursuant to the terms of the
Indenture. Such assignment is made as security for the Bonds, and
any other bonds which are or may at any time be issued and
outstanding under the Indenture. The Bonds are dated and bear
interest in accordance with the provisions of the Indenture,
payable on ____________________ and __________________________ in
each year commencing ___________________ at the rate of
____________________ percent (____%) per annum, and mature on
______________________. The Bonds are subject to redemption prior
to maturity as provided therein.
Subject to the provisions of the Agreement, payments hereon
are to be made by paying to the Trustee, as assignee of the
Authority, in funds which will be immediately available on the day
payment is due, amounts which, and at or before times which, shall
correspond to the payments with respect to the principal of and
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<PAGE>
premium, if any, and interest on the Bonds whenever and in
whatever manner the same shall become due, whether at stated
maturity, upon redemption or declaration or otherwise. If at the
date any payments on the Bonds are due there are any available
moneys in the Bond Fund established under the Indenture, such
moneys shall be credited against the payment then due hereunder,
first in respect of interest and then, to the extent of remaining
moneys, in respect of principal. Upon the occurrence of an Event
of Default, as defined in the Agreement, the principal of and
interest on this Note may be declared immediately due and payable
as provided in the Agreement.
Neither the officers of Georgia nor any persons executing
this Note shall be liable personally or shall be subject to any
personal liability or accountability by reason of the issuance
hereof.
IN WITNESS WHEREOF, Georgia Power Company has caused this
Note to be executed in its corporate name and on its behalf by its
President, its Treasurer or a Vice President by his manual
signature, and its corporate seal to be impressed hereon and
attested by the manual signature of its Secretary or an Assistant
Secretary, all as of the date first above written.
GEORGIA POWER COMPANY
[SEAL]
By:____________________________
Attest:________________________
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<PAGE>
<PAGE>
ASSIGNMENT
Pay to the order of NationsBank of Georgia, National
Association, as assignee of the Development Authority of Monroe
County, under the Trust Indenture, dated as of January 1, 1994,
between the Development Authority of Monroe County and NationsBank
of Georgia, National Association, as Trustee, securing the payment
of Development Authority of Monroe County Pollution Control
Revenue Bonds (Georgia Power Company Plant Scherer Project),
________ Series ____, in the original principal amount of
$_______________.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By:____________________________
<PAGE>
<PAGE>
EXHIBIT B
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
to
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION,
Trustee
------------------------
TRUST INDENTURE
------------------------
Dated as of January 1, 1994
Relating to Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
First Series 1994
<PAGE>
<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is for convenience
of reference only and is not a part
of this Trust Indenture)
Page
PARTIES ............................................ 1
RECITALS ........................................... 1
Form of Bond ................................... 2
Form of Trustee's Certificate of
Authentication ................................ 9
Form of Validation Certificate ................. 9
GRANTING CLAUSE .................................... 10
HABENDUM CLAUSE .................................... 11
ARTICLE I
DEFINITIONS 12
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds . . . . . . . 13
SECTION 2.02. Issuance of Bonds . . . . . . . . . . . 13
SECTION 2.03. Form of Bonds. . . . . . . . . . . . . . 14
SECTION 2.04. Details, Execution and Payment. . . . . 14
SECTION 2.05. Authentication, Registration, Exchange,
Transfer and Ownership of Bonds . . . . 16
SECTION 2.06. Delivery of First Series 1994 Bonds;
Application of Proceeds. . . . . . . . . 17
SECTION 2.07. Temporary Bonds . . . . . . . . . . . . 18
SECTION 2.08. Mutilated, Destroyed or Lost Bonds . . . 19
SECTION 2.09. Destruction of Bonds . . . . . . . . . . 19
SECTION 2.10. Additional Bonds . . . . . . . . . . . . 19
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<PAGE>
Page
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices . . . . . . 21
SECTION 3.02. Notice of Redemption . . . . . . . . . . 22
SECTION 3.03. Effect of Call for Redemption . . . . . 22
SECTION 3.04. Partial Redemption . . . . . . . . . . . 23
SECTION 3.05. Funds in Trust; Unclaimed Funds . . . . 23
SECTION 3.06. Special Redemption . . . . . . . . . . . 23
SECTION 3.07. Surrender of First Mortgage Bonds . . . 24
SECTION 3.08. Satisfaction of First Mortgage Bonds . . 25
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal and Premium, If Any,
and Interest; Limited Obligation . . . . 25
SECTION 4.02. Performance of Covenants; Issuer . . . . 25
SECTION 4.03. Instruments of Further Assurance . . . . 26
SECTION 4.04. Recordation . . . . . . . . . . . . . . 26
SECTION 4.05. Inspection of Project Books . . . . . . 26
SECTION 4.06. Rights Under Agreement . . . . . . . . . 26
SECTION 4.07. Designation of Additional Paying Agents 27
SECTION 4.08. Existence of Issuer . . . . . . . . . . 27
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds . . . . . . . 27
SECTION 5.02. Creation of Bond Fund . . . . . . . . . 27
SECTION 5.03. Payments into the Bond Fund . . . . . . 27
SECTION 5.04. Use of Moneys in the Bond Fund . . . . . 28
SECTION 5.05. Custody of the Bond Fund . . . . . . . . 29
SECTION 5.06. Non-presentment of Bonds . . . . . . . . 29
SECTION 5.07. Moneys to Be Held in Trust . . . . . . . 29
SECTION 5.08. Repayment to the Company from the
Bond Fund . . . . . . . . . . . . . . . 29
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<PAGE>
Page
ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Bond Fund Moneys . . . . . 30
SECTION 6.02. Permitted Investments . . . . . . . . . 30
SECTION 6.03. Non-Arbitrage Covenant . . . . . . . . . 31
ARTICLE VII
RELEASE OF LIEN
SECTION 7.01. Release of Lien . . . . . . . . . . . . 31
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default . . . . . . . . . . . 32
SECTION 8.02. Acceleration . . . . . . . . . . . . . . 33
SECTION 8.03. Other Remedies . . . . . . . . . . . . . 33
SECTION 8.04. Legal Proceedings by Trustee . . . . . . 34
SECTION 8.05. Right of Bondholders to Direct
Proceedings . . . . . . . . . . . . . . 35
SECTION 8.06. Appointment of Receivers . . . . . . . . 35
SECTION 8.07. Waiver . . . . . . . . . . . . . . . . . 35
SECTION 8.08. Application of Moneys . . . . . . . . . 35
SECTION 8.09. Remedies Vested in Trustee . . . . . . . 37
SECTION 8.10. Rights and Remedies of Bondholders . . . 37
SECTION 8.11. Termination of Proceedings . . . . . . . 38
SECTION 8.12. Waivers of Events of Default . . . . . . 38
SECTION 8.13. Notice of Default under Section
8.01(c);Opportunity of Issuer and the
Company to Cure Such Default . . . . . . 39
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts . . . . . . . . 40
SECTION 9.02. Fees, Charges and Expenses of Trustee . 43
SECTION 9.03. Notice to Bondholders if an Event of
Default Occurs . . . . . . . . . . . . . 43
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<PAGE>
Page
SECTION 9.04. Intervention by Trustee . . . . . . . . 43
SECTION 9.05. Successor Trustee . . . . . . . . . . . 44
SECTION 9.06. Resignation by Trustee . . . . . . . . . 44
SECTION 9.07. Removal of Trustee . . . . . . . . . . . 44
SECTION 9.08. Appointment of Successor Trustee . . . . 44
SECTION 9.09. Concerning Any Successor Trustee . . . . 45
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent 45
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company . . . 45
SECTION 9.12. No Transfer of Notes or First Mortgage
Bonds Held by the Trustee; Exception . . 46
SECTION 9.13. Filing of Certain Continuation
Statements . . . . . . . . . . . . . . . 46
SECTION 9.14. Voting of First Mortgage Bonds Held
by the Trustee . . . . . . . . . . . . . 47
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders . . . . . . . . 47
SECTION 10.02. Supplemental Indentures Requiring
Consent of Bondholders . . . . . . . . 48
SECTION 10.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel . . . 50
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders . . . 50
SECTION 11.02. Amendments, Etc., to Agreement Requiring
Consent of Bondholders . . . . . . . . 50
SECTION 11.03. Trustee Authorized to Join in Amendments;
Reliance on Counsel . . . . . . . . . . 51
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<PAGE>
Page
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders . . . . 51
SECTION 12.02. Limitation of Rights . . . . . . . . . 51
SECTION 12.03. Severability . . . . . . . . . . . . . 52
SECTION 12.04. Notices . . . . . . . . . . . . . . . . 52
SECTION 12.05. Trustee as Paying Agent and Bond
Registrar . . . . . . . . . . . . . . . 52
SECTION 12.06. Payments Due on Saturdays, Sundays and
Holidays . . . . . . . . . . . . . . . 52
SECTION 12.07. Counterparts . . . . . . . . . . . . . 53
SECTION 12.08. Applicable Provisions of Law . . . . . 53
SECTION 12.09. Captions . . . . . . . . . . . . . . . 53
SECTION 12.10. No Liability of Officers . . . . . . . 53
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . 54
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . 54
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<PAGE>
THIS INDENTURE made and entered into as of January 1,
1994, by and between the DEVELOPMENT AUTHORITY OF MONROE
COUNTY, a public body corporate and politic duly organized
and existing under the Constitution and laws of the State
of Georgia (the "Issuer"), and NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION, a national banking association duly
organized, existing and authorized to accept and execute
trusts of the character herein set out under and by virtue
of the laws of the United States of America, with its
principal corporate trust office located in Atlanta,
Georgia, as Trustee (the "Trustee").
RECITALS
A. In furtherance of its statutory purposes, the
Issuer has entered into a Loan Agreement dated as of
January 1, 1994 (the "Agreement") with Georgia Power
Company (the "Company") providing for the undertaking by
the Issuer to loan amounts to the Company in order, inter
alia, to refund certain of the Issuer's bonds heretofore
issued to finance the acquisition, construction,
installation and equipping of the Company's interest in
certain pollution control and sewage and solid waste
disposal facilities, or portions thereof, at Plant Scherer,
in Monroe County, Georgia (the "Project").
B. The Agreement provides that, for the purposes
therein set forth, the Issuer will issue and sell its
Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project) in one or more series (the "Bonds");
that the Issuer will loan the proceeds of the Bonds to the
Company; that to evidence the Loan (as hereinafter defined)
the Company will execute and deliver, concurrently with the
issuance of each series of Bonds, a non-negotiable
promissory note in a like principal amount bearing interest
at the rate borne by such series of Bonds; and that as
security for its obligation to pay the promissory notes the
Company will deliver to the Trustee, concurrently with the
issuance of each series of Bonds, first mortgage bonds
issued under and secured by the Company's First Mortgage
(as hereinafter defined) in accordance with, and except as
otherwise provided in, Section 3.4 of the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement have been in all
respects duly and validly authorized by resolution duly
adopted by the Issuer.
D. In order to provide funds for the purpose set
forth in the Agreement, the Issuer has duly authorized the
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<PAGE>
issuance and sale of its Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project), First Series
1994, in the aggregate principal amount of $28,065,000 (the
"First Series 1994 Bonds").
E. The First Series 1994 Bonds are to be in
substantially the following form:
[FORM OF BOND]
No. ......... $
UNITED STATES OF AMERICA
STATE OF GEORGIA
DEVELOPMENT AUTHORITY
OF MONROE COUNTY (GEORGIA)
POLLUTION CONTROL REVENUE BOND
(Georgia Power Company Plant Scherer Project)
FIRST SERIES 1994
Development Authority of Monroe County (herein called
the "Issuer"), a public body corporate and politic, duly
created, activated and existing under the laws of the State
of Georgia, for value received, hereby promises to pay,
solely from the special fund provided therefor as
hereinafter set forth, to , or registered
assigns or legal representative, on the 1st day of January,
2024 (or earlier as hereinafter referred to), upon the
presentation and surrender hereof at the principal
corporate trust office of the Trustee (hereinafter
mentioned) located in Atlanta, Georgia, the principal sum
of DOLLARS in any coin or currency of the United
States of America which on the date of payment thereof is
legal tender for the payment of public and private debts,
and to pay, solely from said special fund, to the
registered owner hereof by check or draft mailed to the
registered owner at his address as it appears on the bond
registration books of the Issuer, interest on said
principal sum from the latest semiannual interest payment
date to which interest has been paid on Bonds of this
series preceding the date hereof, unless the date hereof be
an interest payment date to which interest is being paid,
in which case from the date hereof, or unless the date
hereof is prior to July 1, 1994, in which case from
January 15, 1994, at the rate of five and forty-hundredths
per centum (5.40%) per annum until payment of said
principal sum, such interest being payable semiannually on
the 1st days of January and July in each year in like coin
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<PAGE>
or currency. Interest shall be calculated on the basis of
a year of 360 days and twelve 30-day months.
The interest payable on any January 1 or July 1 will,
subject to certain exceptions provided in the Indenture
(hereinafter mentioned), be paid to the person in whose
name this Bond is registered at the close of business on
the record date, which shall be the December 15 or June 15,
as the case may be, next preceding such interest payment
date or, if such December 15 or June 15 shall be a legal
holiday or a day on which banking institutions in Atlanta,
Georgia, are authorized to close, the next preceding day
which shall not be a legal holiday or a day on which such
institutions are so authorized to close.
The Bonds are issued pursuant to and in full compliance
with the Constitution and laws of the State of Georgia,
particularly the Development Authorities Law (O.C.G.A.
Section 36-62-1, et seq., as amended), and pursuant to a
resolution adopted by the Issuer on January 19, 1994, which
resolution authorizes the execution and delivery of the
Agreement (hereinafter mentioned) and the Indenture. The
Bonds and the interest thereon are limited special
obligations of the Issuer and are payable solely from the
special fund hereinafter referred to out of the revenues
and other amounts derived from the Agreement, the Notes and
the first mortgage bonds (hereinafter mentioned) and are
secured as set forth in the Indenture. The Bonds and
premium, if any, and interest thereon shall not be deemed
to constitute a debt or general obligation or a pledge of
the faith and credit of the State of Georgia or any
political subdivision thereof, including the County of
Monroe. Neither the State of Georgia nor any political
subdivision thereof nor the Issuer shall be obligated to
pay the principal of the Bonds or premium, if any, or
interest thereon or other costs incident thereto except
from the revenues and receipts pledged therefor, and
neither the faith and credit nor the taxing power of the
State of Georgia or any political subdivision thereof is
pledged to the payment of the principal of the Bonds or
premium, if any, or interest thereon or other costs
incident thereto. Payments under the Notes sufficient for
the prompt payment when due of the principal of and
premium, if any, and interest on the Bonds are to be paid
to the Trustee by the Company (hereinafter mentioned) for
the account of the Issuer and deposited in a special
account created by the Issuer and designated "Development
Authority of Monroe County (Georgia) Pollution Control
Revenue Bonds (Georgia Power Company Plant Scherer Project)
First Series 1994 Bond Fund" (herein called the "Bond
Fund") and have been duly pledged and assigned for that
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<PAGE>
purpose. In addition, substantially all other rights of
the Issuer under the Agreement, including the Company's
obligation to deliver to the Trustee concurrently with the
issuance of this series of Bonds the Company's first
mortgage bonds, have also been assigned to the Trustee to
secure payment of the principal of and premium, if any, and
interest on the Bonds issued under the Indenture.
This Bond is one of a duly authorized series of revenue
bonds of the Issuer known as "Pollution Control Revenue
Bonds (Georgia Power Company Plant Scherer Project), First
Series 1994", issued for the purpose of refunding certain
of the Issuer's bonds heretofore issued to finance the cost
of acquiring, constructing, installing and equipping
certain pollution control and sewage and solid waste
disposal facilities (herein called the "Project"). The
Bonds of this series initially authorized aggregate Twenty-
Eight Million Sixty-Five Thousand Dollars ($28,065,000) in
principal amount. The Indenture provides that additional
series of Bonds may be issued under the Indenture for the
purpose of refunding any of the Bonds then outstanding of
any series.
The Bonds of this series and all such additional Bonds
(herein called collectively the "Bonds") are issued or are
to be issued under and pursuant to a trust indenture (said
trust indenture, together with all trust indentures
supplemental thereto as therein permitted, being herein
called the "Indenture"), dated as of the 1st day of
January, 1994, by and between the Issuer and NationsBank of
Georgia, National Association, Atlanta, Georgia, as Trustee
(said banking association and any successor trustee under
the Indenture being herein called the "Trustee"), an
executed counterpart of which Indenture is on file at the
principal corporate trust office of the Trustee. Reference
is hereby made to the Indenture for the provisions, among
others, with respect to the custody and application of the
proceeds of Bonds issued under the Indenture, the
collection and disposition of revenues, a description of
the funds charged with and pledged to the payment of the
principal of and premium, if any, and interest on the
Bonds, the nature and extent of the security, the terms and
conditions under which the Bonds are or may be issued, the
rights, duties and obligations of the Issuer and of the
Trustee, the rights of the holders of the Bonds and the
terms and conditions pursuant to which the Indenture and
the Agreement may be amended, and, by the acceptance of
this Bond, the holder hereof assents to all of the
provisions of the Indenture.
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<PAGE>
The Issuer has entered into a Loan Agreement, dated as
of January 1, 1994 (herein called the "Agreement"), with
Georgia Power Company, a corporation organized and existing
under the laws of the State of Georgia (herein called the
"Company"), under the provisions of which the Issuer has
loaned the proceeds of the Bonds of this series to the
Company and has agreed to loan the proceeds of additional
Bonds to the Company (herein called the "Loan"). In order
to evidence the Loan and the Company's obligation to repay
the same, the Company has executed and delivered its non-
negotiable promissory note and has agreed to issue
additional such notes concurrently with the issuance of
additional series of Bonds (herein called the "Notes").
The Notes provide for the repayment by the Company of the
Loan, including interest thereon, in installments
sufficient to pay the principal of and premium, if any, and
interest on the Bonds as the same shall become due and
payable, and the Agreement further obligates the Company to
pay the cost of operating, maintaining and repairing the
Project. The Notes provide that the payments thereunder
shall be paid directly to the Trustee as assignee of the
Issuer; such payments are to be deposited to the credit of
the Bond Fund created under the Indenture which special
fund is pledged to and charged with the payment of the
principal of and premium, if any, and interest on all Bonds
issued under the Indenture and such Loan repayments have
been duly pledged and assigned for that purpose.
The Bonds are issuable as fully registered Bonds
without coupons in denominations of $5,000 or any multiple
thereof. At the principal corporate trust office of the
Trustee, located in Atlanta, Georgia, in the manner and
subject to the limitations, conditions and charges provided
in the Indenture, Bonds may be exchanged for an equal
aggregate principal amount of Bonds of the same series and
maturity, of authorized denominations and bearing interest
at the same rate.
The Bonds of this series are non-callable for
redemption prior to January 1, 1999, except in the event
the Trustee and the Issuer shall have received written
notice from the Company of its determination of the
occurrence of certain events specified in Section 3.06 of
the Indenture. If called for redemption in such event, the
Bonds of this series shall be subject to redemption at any
time in whole at the principal amount thereof plus accrued
interest to the redemption date but without premium.
The Bonds of this series are also subject to redemption
by the Issuer prior to maturity on or after January 1,
1999, in whole at any time or in part from time to time
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<PAGE>
(but if in part by lot or in such other random manner as
the Trustee in its discretion may determine), at the
redemption prices (expressed as percentages of principal
amount) set forth in the table below plus accrued interest
to the redemption date.
Redemption Date Redemption
(dates inclusive) Price
January 1, 1999 to December 31, 1999 ......... 102%
January 1, 2000 to December 31, 2000 ......... 101%
January 1, 2001 and thereafter ............. 100%
Any such redemption, either in whole or in part, shall
be made upon at least thirty (30) days' prior notice as
provided in the Indenture, and shall be made in the manner
and under the terms and conditions provided in the
Indenture. On the date designated for redemption, notice
having been given and moneys for payment of the redemption
price and accrued interest being held by the Trustee or by
the paying agents, all as provided in the Indenture, the
Bonds or portions of Bonds so called for redemption shall
become and be due and payable at the redemption price
provided for redemption of such Bonds or such portions
thereof on such date, interest on such Bonds or such
portions thereof so called for redemption shall cease to
accrue, such Bonds or such portions thereof so called for
redemption shall cease to be entitled to any benefit or
security under the Indenture, and the registered owners
thereof shall have no rights in respect of such Bonds or
such portions thereof so called for redemption except to
receive payment of the redemption price and accrued
interest thereon so held by the Trustee or by the paying
agents. If a portion of this Bond shall be called for
redemption, a new registered Bond in principal amount equal
to the unredeemed portion hereof will be issued to the
registered owner upon the surrender hereof.
The holder of this Bond shall have no right to enforce
the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with
respect to any event of default under the Indenture or to
institute, appear in or defend any suit or other proceeding
with respect thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and
with the effect set forth in the Indenture, the principal
of all the Bonds then outstanding under the Indenture may
become or may be declared due and payable before the stated
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<PAGE>
maturity thereof, together with the interest accrued
thereon.
Modifications or alterations of the Indenture or any
trust indenture supplemental thereto or of the Agreement
may be made only to the extent and in the circumstances
permitted by the Indenture.
The transfer of this Bond may be registered by the
registered owner hereof in person or by his attorney or
legal representative at the principal corporate trust
office of the Trustee, located in Atlanta, Georgia, but
only in the manner and subject to the limitations and
conditions provided in the Indenture and upon surrender and
cancellation of this Bond. Upon any such registration of
transfer the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange for this Bond a new
Bond or Bonds, registered in the name of the transferee, of
authorized denominations, in aggregate principal amount
equal to the principal amount of this Bond, of the same
series and maturity and bearing interest at the same rate.
No covenant or agreement contained in this Bond or the
Indenture shall be deemed to be a covenant or agreement of
any member, agent or employee of the Issuer in his
individual capacity, and neither the officers of the Issuer
nor any official executing this Bond shall be liable
personally on this Bond or be subject to any personal
liability or accountability by reason of the issuance of
this Bond.
This Bond shall be fully negotiable as an investment
security as provided by the laws of the State of Georgia
and is issued with the intent that the laws of the State of
Georgia shall govern its construction.
All acts, conditions and things required to happen,
exist and be performed precedent to and in the issuance of
this Bond and the execution of the Indenture have happened,
exist and have been performed as so required.
This Bond shall not be valid or become obligatory for
any purpose or be entitled to any benefit or security under
the Indenture until it shall have been authenticated by the
execution by the Trustee of the certificate of
authentication endorsed hereon.
IN WITNESS WHEREOF, the Development Authority of Monroe
County has caused this Bond to be executed in its name and
on its behalf by the facsimile signature of its Chairman or
Vice Chairman and its official seal or a facsimile thereof
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to be impressed or printed hereon and attested by the
manual or facsimile signature of its Secretary or Assistant
Secretary.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By: ____________________________
__________________________
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
(To be endorsed on all Bonds)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated
therein and issued under the provisions of the
within-mentioned Indenture.
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION,
as Trustee
Date: ____________________ By: __________________________
Authorized Signatory
[FORM OF VALIDATION CERTIFICATE]
(To be endorsed on all Bonds)
STATE OF GEORGIA SS:
COUNTY OF MONROE
The undersigned, Clerk of the Superior Court of Monroe
County, Georgia, hereby certifies that the within First
Series 1994 Bond was validated and confirmed by judgment of
the Superior Court of Monroe County, Georgia rendered on
the ____ day of February, 1994, that no intervention or
objection was filed thereto and that no appeal has been
taken therefrom.
IN WITNESS WHEREOF, I have caused this Certificate to
be executed by the use of my facsimile signature and have
caused the official seal of the Court or a facsimile
thereof to be affixed hereto.
______________________________
Clerk, Superior Court,
Monroe County, Georgia
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F. All acts, conditions and things required by the
Constitution and laws of the State of Georgia to happen,
exist and be performed precedent to and in the execution
and delivery of this Indenture and the Agreement have
happened, exist and have been performed as so required, in
order to make this Indenture a valid and binding trust
indenture for the security of the Bonds in accordance with
its terms and in order to make the Agreement a valid and
binding loan agreement in accordance with its terms.
G. The Trustee has accepted the trusts created by
this Indenture and in evidence thereof has joined in the
execution hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in
consideration of the premises, of the acceptance by the
Trustee of the trusts hereby created, and the purchase and
acceptance of the Bonds by the holders thereof, and also
for and in consideration of the sum of One Dollar ($1.00)
to the Issuer in hand paid by the Trustee at or before the
execution and delivery of this Indenture, the receipt of
which is hereby acknowledged, and for the purpose of fixing
and declaring the terms and conditions upon which the Bonds
are to be issued, authenticated, delivered, secured and
accepted by all persons who shall from time to time be or
become holders thereof, and in order to secure the payment
of all Bonds at any time issued and outstanding hereunder
and the interest and the redemption premiums, if any,
thereon according to their tenor, purport and effect, and
in order to secure the performance and observance of all
the covenants, agreements and conditions therein or herein
contained; the Issuer has executed and delivered this
Indenture, will cause the Company to deliver to the Trustee
the Company's promissory note dated the date of the initial
issuance of the First Series 1994 Bonds and the Company's
First Mortgage Bonds, 5.40% Pollution Control Series due
January 1, 2024, and will cause the Company to deliver any
other of its promissory notes and First Mortgage Bonds
required in connection with the issuance of Additional
Bonds (as hereinafter defined); the Issuer does hereby
bargain, sell, convey, assign and pledge to the Trustee,
and grant to the Trustee a security interest in, all
rights, title and interests of the Issuer in, to and under
such promissory note and all payments made and to be made
thereunder and in, to and under such First Mortgage Bonds
and all payments, if any, made and to be made thereunder as
security for the payment of all outstanding First Series
1994 Bonds and any Additional Bonds and the interest and
the premium, if any, thereon and does hereby bargain, sell,
convey, assign and pledge to the Trustee, and grant to the
Trustee a security interest in, all other rights, title and
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interests of the Issuer in, to and under the Agreement and
all moneys receivable thereunder (except for payments to be
received under Sections 4.2 and 5.3 of the Agreement) as
security for the satisfaction of any other obligation
assumed by it in connection with all outstanding Bonds at
any time issued hereunder;
TO HAVE AND TO HOLD the same unto the Trustee and its
successors in trust forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein
set forth, for the equal and proportionate benefit and
security of all and singular present and future holders of
the Bonds issued and to be issued under this Indenture,
without preference, priority or distinction as to lien or
otherwise, except as otherwise hereinafter provided, of any
one Bond over any other Bond, by reason of priority in the
issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Issuer, its successors
or assigns shall pay or cause to be paid the principal of,
premium, if any, and interest on the Bonds due or to become
due thereon, at the times and in the manner mentioned in
the Bonds, and shall cause the payments to be made into the
Bond Fund (hereinafter defined) as required under Article V
hereof or shall provide, as permitted hereby, for the
payment thereof pursuant to the provisions of Article VII
hereof, and shall perform all the covenants and conditions
required of it by this Indenture, and shall pay or cause to
be paid to the Trustee and any additional paying agents all
sums of money due or to become due to them in accordance
with the terms and provisions hereof, then upon such final
payments this Indenture and the rights hereby granted shall
terminate and the Trustee shall release this Indenture and
shall execute such documents to evidence such termination
and release as may be reasonably required by the Issuer;
otherwise this Indenture to be and remain in full force and
effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly
declared, that all Bonds from time to time issued and
secured hereunder are to be issued, authenticated and
delivered, and all said property, rights and interests,
including, without limitation, the amounts hereby assigned
and pledged, are to be dealt with and disposed of subject
to the terms of this Indenture, and the Issuer agrees with
the Trustee and with the respective holders and owners,
from time to time, of said Bonds, or part thereof, as
follows:
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ARTICLE I
DEFINITIONS
The terms "Agreement", "Company" and "Issuer" have the
same meanings given and assigned to such words in the
Recitals hereto. The terms "First Mortgage", "First
Mortgage Bonds", "First Series 1994 Bonds", "Loan",
"Notes", "Project" and "Refunded Bonds" defined in
Article I of the Agreement shall have the same meanings in
this Indenture. In addition, the following words and
phrases shall have the following meanings:
"Act" means the Development Authorities Law as set
forth in the Official Code of Ga. Ann. Section 36-62-1, et
seq., as amended.
"Additional Bonds" means the bonds authorized to be
issued under Section 2.10 of this Indenture.
"Bond Fund" means the trust fund created by
Section 5.02 of this Indenture.
"Bondholder" or "holder" or "owner of the Bonds" means
the person or entity in whose name any Bond is registered.
"Bonds" means the bonds authorized to be issued under
Sections 2.02 and 2.10 of this Indenture.
"event of default" means any occurrence or event
described in Section 8.01 hereof.
"First Mortgage Trustee" means the trustee at the time
serving as such under the First Mortgage.
"Government Obligations" means (a) direct obligations
of the United States of America for the payment of which
the full faith and credit of the United States of America
is pledged, or (b) obligations issued by a person
controlled or supervised by and acting as an
instrumentality of the United States of America, the
payment of the principal of and premium, if any, and
interest on which is fully and unconditionally guaranteed
as a full faith and credit obligation by the United States
of America.
"Indenture" means this trust indenture and any
indenture supplemental hereto.
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"outstanding" or "Bonds outstanding" means all Bonds
which have been authenticated and delivered by the Trustee
under this Indenture, except:
(a) Bonds cancelled after purchase or because of
payment at or redemption prior to maturity;
(b) Bonds for the payment or redemption of which
all necessary moneys or Government Obligations shall
have been theretofore deposited with the Trustee
(whether upon or prior to the maturity or redemption
date of any such Bonds); provided that, if such Bonds
are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given or
arrangements satisfactory to the Trustee shall have
been made therefor, or waiver of such notice
satisfactory in form to the Trustee shall have been
filed with the Trustee;
(c) Bonds in exchange for which, or upon the
transfer of which, other Bonds have been authenticated
under Section 2.05 hereof; and
(d) Bonds in lieu of which other Bonds have been
authenticated under Sections 2.07 and 2.08 hereof.
"Supplemental Indenture" means the Supplemental
Indenture dated as of January 1, 1994 between the Company
and the First Mortgage Trustee.
"Trustee" means the trustee serving as such under this
Indenture, including any successor Trustee serving or
appointed pursuant to Section 9.05 or 9.08 hereof.
ARTICLE II
THE BONDS
SECTION 2.01. Authorized Amount of Bonds. No bonds
may be issued under the provisions of this Indenture except
in accordance with this Article II.
SECTION 2.02. Issuance of Bonds. There shall be
initially issued under and secured by this Indenture Bonds
of the Issuer, in the aggregate principal amount of Twenty-
Eight Million Sixty-Five Thousand Dollars ($28,065,000),
for the purposes set forth in the Agreement. Said Bonds
shall be designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Georgia Power
Company Plant Scherer Project), First Series 1994", shall
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bear interest (calculated on the basis of a year of 360
days and twelve 30-day months) at the rate of five and
forty-hundredths per centum (5.40%) per annum, which
interest shall be payable semi-annually on the 1st days of
January and July in each year, commencing July 1, 1994, and
shall mature, subject to prior redemption as hereinafter
set forth, on the 1st day of January, 2024.
SECTION 2.03. Form of Bonds. The definitive Bonds are
issuable as fully registered Bonds without coupons in
denominations of $5,000 or any multiple thereof. The
definitive Bonds shall be substantially in the form
hereinabove set forth, with such appropriate variations,
omissions and insertions as are permitted or required by
this Indenture and may have endorsed thereon such legends
or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental
authority or any usage or requirement of law with respect
thereto.
SECTION 2.04. Details, Execution and Payment. Each
Bond of each series shall be dated as of the date of
authentication (except that the First Series 1994 Bonds
shall be dated January 15, 1994 upon initial issuance), and
shall bear interest from the latest semi-annual interest
payment date to which interest has been paid on the Bonds
of such series preceding the date of authentication, unless
such date of authentication be an interest payment date to
which interest is being paid on the Bonds of such series,
in which case it shall bear interest from such date of
authentication, provided that Bonds of each series
authenticated prior to the first interest payment date of
such series shall bear interest from a date prior to such
interest payment date specified for such series, which
date, in the case of the First Series 1994 Bonds, shall be
January 15, 1994.
The Bonds shall be executed by the facsimile signature
of the Chairman or Vice Chairman of the Issuer and the
official seal of the Issuer or a facsimile thereof shall be
affixed thereto and attested by the manual or facsimile
signature of the Secretary or Assistant Secretary of the
Issuer.
All authorized facsimile signatures shall have the same
force and effect as manual signatures.
In case any officer whose signature or facsimile
signature shall appear on any Bonds shall cease to be such
officer before the delivery of such Bonds, such signature
or such facsimile shall nevertheless be valid and
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sufficient for all purposes as if he had remained in office
until such delivery, and also any Bond may be signed by or
bear the facsimile signature of such persons as at the
actual time of the execution of such Bond shall be the
proper officers to sign such Bond although at the date of
such Bond such persons may not have been such officers.
The principal of and premium, if any, and interest on
the Bonds shall be payable in any coin or currency of the
United States of America which on the respective dates of
payment thereof is legal tender for the payment of public
and private debts. The principal of and premium, if any,
on all Bonds shall be payable at the principal corporate
trust office of the Trustee, and payment of the interest on
each Bond shall be made by the Trustee on each interest
payment date to the person appearing on the registration
books of the Issuer hereinafter provided for as the owner
thereof at the close of business on the record date with
respect to such interest payment date, by check or draft
mailed to such owner at his address as it appears on such
registration books. Payment of the principal of and
premium, if any, on all Bonds shall be made upon the
presentation and surrender of such Bonds as the same shall
become due and payable.
The person in whose name any First Series 1994 Bond is
registered at the close of business on any record date (as
hereinafter defined) with respect to any interest payment
date shall be entitled to receive the interest payable on
such interest payment date notwithstanding the cancellation
of such First Series 1994 Bond upon any transfer or
exchange thereof subsequent to the record date and prior to
such interest payment date, except if and to the extent
there shall be a default in the payment of the interest due
on such interest payment date, in which case such defaulted
interest shall be paid to the person in whose name such
First Series 1994 Bond (or any First Series 1994 Bond or
Bonds issued, directly or after intermediate transactions,
upon transfer or exchange or in substitution thereof) is
registered on a subsequent record date for such payment
established as hereinafter provided. A subsequent record
date may be established by the Issuer at the direction of
the Company by notice mailed to the holders of the First
Series 1994 Bonds not less than ten days preceding such
record date, which record date shall not be less than five
nor more than thirty days prior to the subsequent interest
payment date. The term "record date" as used in this
Section 2.04 with respect to any regular interest payment
date shall mean the December 15 or June 15, as the case may
be, next preceding such interest payment date, or, if such
December 15 or June 15 shall be a legal holiday or a day on
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which banking institutions in Atlanta, Georgia are
authorized by law to close, the next preceding day which
shall not be a legal holiday or a day on which such
institutions are so authorized to close.
SECTION 2.05. Authentication, Registration, Exchange,
Transfer and Ownership of Bonds. Only such of the Bonds as
shall have endorsed thereon a certificate of authentication
substantially in the form hereinabove set forth, duly
executed by the Trustee, shall be entitled to any benefit
or security under this Indenture. No Bond shall be valid
or obligatory for any purpose unless and until such
certificate of authentication shall have been duly executed
by the Trustee, and such certificate of the Trustee upon
any such Bond shall be conclusive evidence that such Bond
has been duly authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on
any Bond shall be deemed to have been duly executed if
signed by an authorized representative of the Trustee, but
it shall not be necessary that the same person sign the
certificate of authentication on all of the Bonds that may
be issued hereunder at any one time.
Bonds, upon surrender thereof at the principal
corporate trust office of the Trustee, may, at the option
of the owner thereof, be exchanged for an equal aggregate
principal amount of Bonds of the same series and maturity,
of any denomination or denominations authorized by this
Indenture, and bearing interest at the same rate.
The Issuer shall make provision for the exchange of
Bonds at the principal corporate trust office of the
Trustee.
The Trustee is hereby appointed as Bond Registrar and
as such shall keep books for the registration and for the
registration of transfer of Bonds as provided in this
Indenture.
The transfer of any Bond may be registered only upon
the books kept for the registration and registration of
transfer of Bonds upon surrender thereof to the Bond
Registrar together with an assignment duly executed by the
owner or his attorney or legal representative in such form
as shall be satisfactory to the Bond Registrar. Upon any
such registration of transfer the Issuer shall execute and
the Trustee shall authenticate and deliver in exchange for
such Bond a new Bond or Bonds, registered in the name of
the transferee, of any denomination or denominations
authorized by this Indenture in an aggregate principal
amount equal to the principal amount of such Bond of the
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same series and maturity and bearing interest at the same
rate.
In all cases in which Bonds shall be exchanged or the
transfer of Bonds shall be registered hereunder, the Issuer
shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in
accordance with the provisions of this Indenture. All
Bonds surrendered in any such exchange or registration of
transfer shall forthwith be cancelled by the Trustee. The
Issuer or the Trustee may make a charge for every such
exchange or registration of transfer of Bonds sufficient to
reimburse it for any tax, fee or other governmental charge
required to be paid with respect to such exchange or
registration of transfer, and such charge shall be paid
before any such new Bonds shall be delivered.
As to any Bond, the person in whose name the same shall
be registered shall be deemed and regarded as the absolute
owner thereof for all purposes, and payment of or on
account of the principal of or interest on any such Bond
shall be made only to or upon the order of the owner
thereof or his legal representative. All such payments
shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon,
to the extent of the sum or sums so paid. Neither the
Issuer, the Trustee, the Company nor the Bond Registrar
shall be affected by any notice to the contrary.
SECTION 2.06. Delivery of First Series 1994 Bonds;
Application of Proceeds. Upon the execution and delivery
of this Indenture, the Issuer shall execute and deliver to
the Trustee and the Trustee shall authenticate the First
Series 1994 Bonds and deliver them to the purchasers
thereof as directed by the Issuer as hereinafter in this
Section 2.06 provided.
Prior to the delivery by the Trustee of any First
Series 1994 Bonds, there shall be delivered to the Trustee:
(i) A copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolutions
adopted by the Issuer authorizing the Loan, authorizing
the execution and delivery of the Agreement, and
authorizing the execution and delivery of this
Indenture and the issuance of the First Series 1994
Bonds.
(ii) An executed counterpart of the Agreement.
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(iii) A request and authorization to the Trustee
on behalf of the Issuer, signed by the Chairman or Vice
Chairman of the Issuer, to authenticate and deliver the
First Series 1994 Bonds to the purchasers therein
identified upon payment to the Trustee, but for the
account of the Issuer, of a sum specified in such
request and authorization.
(iv) A Note duly executed.
(v) An executed counterpart of the Supplemental
Indenture.
(vi) First Mortgage Bonds duly executed and
authenticated in accordance with Section 3.4 of the
Agreement.
Upon the issuance and delivery of the First Series 1994
Bonds, the Trustee shall apply the proceeds from the sale
of the First Series 1994 Bonds as follows:
(a) The accrued interest (if any) received from
the sale of the First Series 1994 Bonds shall be
deposited in the Bond Fund; and
(b) The balance of such proceeds shall be
deposited with the trustee for the Refunded Bonds under
the Trust Indenture dated as of March 21, 1984, and
applied solely to the redemption of the Refunded Bonds.
SECTION 2.07. Temporary Bonds. Until definitive Bonds
are ready for delivery, there may be executed, and upon
request of the Issuer the Trustee shall authenticate and
deliver, in lieu of definitive Bonds and subject to the
same limitations and conditions, temporary printed,
engraved, lithographed or typewritten Bonds, in the form of
registered Bonds without coupons in the denomination of
$5,000 or any multiple thereof, as the Issuer by resolution
may provide, substantially of the tenor hereinabove set
forth and with such appropriate omissions, insertions and
variations as may be required.
Until definitive Bonds are ready for delivery, any
temporary Bond may, if so provided by the Issuer by
resolution, be exchanged at the principal corporate trust
office of the Trustee, without charge to the holder
thereof, for an equal aggregate principal amount of
temporary Bonds of like tenor, of the same series and
maturity and bearing interest at the same rate.
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If temporary Bonds shall be issued, the Issuer shall
cause the definitive Bonds to be prepared and to be
executed and delivered to the Trustee, and the Trustee,
upon presentation to it at its principal corporate trust
office of any temporary Bond, shall cancel the same and
authenticate and deliver in exchange therefor at the
principal corporate trust office of the Trustee, without
charge to the holder thereof, a definitive Bond or Bonds of
an equal aggregate principal amount, of the same maturity
and bearing interest at the same rate as the temporary Bond
surrendered. Until so exchanged the temporary Bonds shall
in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be
issued and authenticated hereunder.
SECTION 2.08. Mutilated, Destroyed or Lost Bonds. In
case any Bond secured hereby shall become mutilated or be
destroyed or lost, the Issuer shall cause to be executed,
and the Trustee shall authenticate and deliver, a new Bond
of like date and tenor in exchange and substitution for and
upon the cancellation of such mutilated Bond, or in lieu of
and in substitution for such Bond destroyed or lost, upon
the holder's paying the reasonable expenses and charges of
the Issuer and the Trustee in connection therewith and, in
the case of a Bond destroyed or lost, his filing with the
Trustee evidence satisfactory to it and to the Issuer that
such Bond was destroyed or lost, and of his ownership
thereof, and furnishing the Issuer and the Trustee
indemnity satisfactory to them.
SECTION 2.09. Destruction of Bonds. All Bonds paid,
redeemed or purchased, either at or before maturity, shall
be cancelled upon the payment, redemption or purchase of
such Bonds and shall be delivered to the Trustee when such
payment, redemption or purchase is made. All Bonds
cancelled under any of the provisions of this Indenture
shall be destroyed, in accordance with applicable law, by
the Trustee, which shall execute a certificate in
triplicate describing the Bonds so destroyed, and one
executed certificate shall be filed with the Issuer and one
with the Company and the other executed certificate shall
be retained by the Trustee.
SECTION 2.10. Additional Bonds. Additional Bonds may
be issued under and secured by this Indenture at one time
or from time to time, in addition to the First Series 1994
Bonds and, subject to the conditions hereinafter provided
in this Section 2.10, for the purpose of providing funds
for refunding any of the Bonds then outstanding of any
series, including the payment of any redemption premium
thereon, interest to accrue to the selected redemption
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date, any serial maturities to become due prior to the
selected redemption date and any expenses in connection
with such refunding. Before any Additional Bonds shall be
issued under the provisions of this Section 2.10, the
Issuer shall adopt a resolution authorizing the issuance of
such Additional Bonds, fixing the amount thereof and
describing in brief and general terms the purpose or
purposes for which such Additional Bonds are being issued.
Such Additional Bonds shall be dated, shall be designated,
shall be stated to mature on such date and in such year or
years, shall bear interest at such rate or rates not
exceeding the maximum rate then permitted by law, and may
be made redeemable at such time and prices (subject to the
provisions of Article III of this Indenture), as all may be
provided by the resolution authorizing the issuance of such
Additional Bonds. Except as to any difference in the date,
the maturity or maturities, the rate or rates of interest
or the provisions for redemption by sinking fund or
otherwise, such Additional Bonds shall be on a parity with
and shall be entitled to the same benefit and security of
this Indenture as the First Series 1994 Bonds.
Such Additional Bonds shall be executed substantially
in the form and manner hereinabove set forth and shall be
deposited with the Trustee for authentication, but before
such Additional Bonds shall be authenticated and delivered
by the Trustee, there shall be delivered to the Trustee the
following:
(a) a copy, certified by the Secretary or
Assistant Secretary of the Issuer, of the resolution
adopted by the Issuer authorizing the issuance of such
Additional Bonds in the amount specified therein and
providing for the application of the proceeds;
(b) a certificate stating that the Company has
approved the issuance of such Additional Bonds,
including the terms, manner of issuance, purchase price
and disposition of the proceeds thereof, and the terms
and conditions of any supplement to this Indenture
entered into in connection with such Additional Bonds;
(c) an executed counterpart of any amendment to
the Agreement;
(d) an opinion of nationally recognized counsel
experienced on the subject of municipal bonds and
acceptable to the Trustee that the issuance of such
Additional Bonds and the application of the proceeds of
such Additional Bonds to the purpose or purposes
described in the resolution mentioned in clause (a) of
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this Section 2.10 will not result in the interest on
any Bonds theretofore issued under this Indenture and
then outstanding or any portion thereof becoming
included in gross income for federal income tax
purposes, except as to any such Bond held by a
"substantial user" of the Project or a "related person"
within the meaning of the Internal Revenue Code of
1986, as amended, and that the interest on such
Additional Bonds will be so excluded from gross income
for federal income tax purposes;
(e) a Note duly executed;
(f) First Mortgage Bonds duly executed and
authenticated in accordance with Section 3.4 of the
Agreement; provided, however, that if such Additional
Bonds are issued for the purpose of refunding all of
the Bonds then outstanding, the Company may elect not
to deliver First Mortgage Bonds; and
(g) if First Mortgage Bonds are to be delivered,
an executed counterpart of a supplemental indenture to
the First Mortgage providing for the issuance of such
First Mortgage Bonds.
ARTICLE III
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 3.01. Redemption Dates and Prices. The First
Series 1994 Bonds are non-callable for redemption except as
provided in this Section 3.01.
The Bonds are subject to redemption by the Issuer, upon
request of the Company under Section 4.7 of the Agreement,
pursuant to the special redemption provisions of Section
3.06 hereof at the times specified in the notice given by
the Issuer as provided in Section 3.06 hereof at the
principal amount thereof plus accrued interest to the
redemption date but without premium.
The First Series 1994 Bonds are subject to redemption
by the Issuer prior to maturity on or after January 1,
1999, in whole at any time or in part from time to time, as
requested by the Company pursuant to Section 4.7 of the
Agreement, at the redemption prices (expressed as
percentages of principal amount) set forth in the table
below plus accrued interest to the redemption date:
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Redemption Date Redemption
(dates inclusive) Price
January 1, 1999 to December 31, 1999 102%
January 1, 2000 to December 31, 2000 101
January 1, 2001 and thereafter 100
If less than all of the Bonds of a series shall be
called for redemption, the particular Bonds or portions of
Bonds to be redeemed shall be selected by the Trustee by
lot or in such other random manner as the Trustee in its
discretion may determine.
SECTION 3.02. Notice of Redemption. At least thirty
(30) days before the redemption date of any Bonds, either
in whole or in part, the Trustee shall cause a notice of
any such redemption to be mailed, postage prepaid, to all
owners of Bonds to be redeemed in whole or in part at their
addresses as they appear on the registration books
hereinabove provided for. In addition, simultaneously with
the mailing of such notice of redemption, the Trustee shall
mail a copy of such notice by Certified Mail, return
receipt requested (or transmit the same by overnight
delivery service), to The Depository Trust Company, its
successors or assigns and any similar institutional
depository of securities which shall be the registered
owner of any of the Bonds to be redeemed. Each such notice
shall set forth the date fixed for redemption, the
redemption price to be paid and, if less than all of the
Bonds then outstanding shall be called for redemption, the
distinctive numbers and letters, if any, of such Bonds to
be redeemed and, in the case of Bonds to be redeemed in
part only, the portion of the principal amount thereof to
be redeemed. In case any Bond is to be redeemed in part
only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon
surrender of such Bond, a new Bond in principal amount
equal to the unredeemed portion of such Bond will be
issued. Failure to mail any notice of redemption, or any
defect in any such notice, shall not affect the proceeding
for redemption as to any owner of Bonds to whom proper
notice is mailed.
SECTION 3.03. Effect of Call for Redemption. On the
date so designated for redemption, notice having been given
in the manner and under the conditions hereinabove
provided, the Bonds or portions of Bonds so called for
redemption shall become and be due and payable at the
redemption price provided for redemption for such Bonds or
portions of Bonds on such date, and moneys for payment of
the redemption price and accrued interest to the redemption
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date being held by the Trustee in a separate account in the
Bond Fund in trust for the holders of the Bonds or portions
thereof to be redeemed, all as provided in this Indenture,
interest on the Bonds or portions of Bonds so called for
redemption shall cease to accrue, such Bonds or portions of
Bonds shall cease to be entitled to any benefit or security
under this Indenture, and the holder of such Bonds or
portions of Bonds shall have no rights in respect thereof
except to receive payment of the redemption price thereof
and accrued interest to the redemption date.
SECTION 3.04. Partial Redemption. In case part but
not all of an outstanding Bond shall be selected for
redemption, the owner thereof or his attorney or legal
representative shall present and surrender such Bond to the
Trustee for payment of the principal amount thereof so
called for redemption, and the Issuer shall execute and the
Trustee shall authenticate and deliver to or upon the order
of such owner or his attorney or legal representative,
without charge therefor, for the unredeemed portion of the
principal amount of the Bond so surrendered, a Bond of the
same series and maturity and bearing interest at the same
rate.
SECTION 3.05. Funds in Trust; Unclaimed Funds. All
moneys which the Trustee shall have withdrawn from the Bond
Fund or shall have received from any other source and set
aside, or deposited with the paying agents, for the purpose
of paying any of the Bonds hereby secured, either at the
maturity thereof or upon call for redemption, shall be held
in trust for the respective holders of such Bonds. But any
moneys which shall be so set aside or deposited by the
Trustee and which shall remain unclaimed by the holders of
such Bonds for a period of six (6) years after the date on
which such Bonds shall have become due and payable shall
upon request in writing be paid to the Company or to such
officer, board or body as may then be entitled by law to
receive the same, and thereafter the holders of such Bonds
shall look only to the Company or to such officer, board or
body, as the case may be, for payment and then only to the
extent of the amount so received without any interest
thereon, and the Trustee, the Issuer and the paying agents
shall have no responsibility with respect to such moneys.
SECTION 3.06. Special Redemption. The Bonds are
subject to redemption in whole at any time upon receipt by
the Trustee and the Issuer of a written notice from the
Company stating that the Company has determined that:
(i) Any federal, state or local body exercising
governmental or judicial authority has taken any action
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which results in the imposition of unreasonable burdens
or excessive liabilities with respect to the Project,
or the Company's plant in connection with which the
Project is used, rendering impracticable or
uneconomical the operation of either, including,
without limitation, the condemnation or taking by
eminent domain of all or substantially all of the
Project or such plant; or
(ii) Changes in the economic availability of raw
materials, operating supplies or facilities or
technological or other changes have made the continued
operation of such plant as an efficient generating
facility uneconomical; or
(iii) The Project or such plant has been damaged
or destroyed to such an extent that it is not
practicable or desirable to rebuild, repair or restore
the Project or such plant.
If the Issuer shall have received such notice by the
Company, the Issuer, upon request of the Company, shall
give written notice to the Trustee directing the Trustee to
take all action necessary to redeem the outstanding Bonds
in whole and on a date specified in such notice, which date
shall be not less than forty-five (45) nor more than ninety
(90) days from the date the notice is received by the
Trustee.
SECTION 3.07. Surrender of First Mortgage Bonds. Upon
receipt by the Trustee of cash or Government Obligations
(non-callable by the issuer thereof) for deposit into the
Bond Fund which, together with other moneys then available
in the Bond Fund, are sufficient to pay, purchase or redeem
all or any part of the Bonds then outstanding in accordance
with the terms of this Indenture or on direction by the
Company that moneys in the Bond Fund be so applied, the
Trustee shall surrender to the Company First Mortgage Bonds
of the series pledged hereunder in connection with the
initial delivery by the Trustee of, and of the same
maturity as, the Bonds so to be paid, purchased or redeemed
in a principal amount equal to, but not exceeding, the
principal amount of the Bonds so to be paid, purchased or
redeemed. For the purposes of this Section 3.07, delivery
to or acquisition by the Trustee of Bonds for cancellation
(other than in connection with a permitted exchange or
registration of transfer of ownership) shall be deemed to
constitute receipt by the Trustee of moneys sufficient to
pay, purchase or redeem the Bonds so delivered.
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SECTION 3.08. Satisfaction of First Mortgage Bonds.
The Issuer and the Trustee agree that the obligations of
the Company to make payments with respect to the principal
of and premium, if any, and interest on the First Mortgage
Bonds pledged hereunder in connection with the initial
delivery of the First Series 1994 Bonds shall be satisfied
and discharged to the extent and as provided in the first
paragraph of Section 2 of the Supplemental Indenture. The
Trustee shall give the notice provided for in such Section
within ten (10) days after a payment of principal of or
premium, if any, or interest on the First Series 1994 Bonds
shall not have been made when due and there are not
sufficient available funds in the Bond Fund to make such
payment.
ARTICLE IV
GENERAL COVENANTS
SECTION 4.01. Payment of Principal and Premium, If
Any, and Interest; Limited Obligation. The Issuer
covenants that it will promptly pay the principal of and
premium, if any, and interest on every Bond issued under
this Indenture at the place, on the dates and in the manner
provided herein and in said Bonds according to the true
intent and meaning thereof, but only from the revenues and
receipts specifically pledged herein for such purposes.
Neither the State of Georgia, nor any political subdivision
thereof (including Monroe County) shall be obligated to pay
the principal of the Bonds, or the premium, if any, or
interest thereon or other costs incidental thereto, the
same being payable solely from the revenues and receipts
hereinabove referred to. Neither the faith and credit nor
the taxing power of the State of Georgia or any political
subdivision thereof (including Monroe County) is pledged to
the payment of the principal of the Bonds, or the premium,
if any, or interest thereon, or the other costs incidental
thereto.
SECTION 4.02. Performance of Covenants; Issuer. The
Issuer covenants that it will faithfully perform at all
times any and all covenants, undertakings, stipulations and
provisions contained in this Indenture, in any and every
Bond executed, authenticated and delivered hereunder and in
all of its proceedings pertaining hereto. The Issuer
covenants that it is duly authorized under the Constitution
and laws of the State of Georgia, including particularly
and without limitation the Act, to issue the First Series
1994 Bonds authorized hereby and to execute this Indenture,
to assign and pledge the Notes and the Agreement and the
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amounts payable under the Notes and the First Mortgage
Bonds, and to pledge the amounts hereby pledged in the
manner and to the extent herein set forth; that all action
on its part necessary for the issuance of the First Series
1994 Bonds and the execution and delivery of this Indenture
has been duly and effectively taken; and that the First
Series 1994 Bonds in the hands of the owners thereof are
and will be valid and enforceable obligations of the Issuer
according to the terms thereof and hereof.
SECTION 4.03. Instruments of Further Assurance. The
Issuer covenants that, at the direction and expense of the
Company, it will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered,
such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably
require for the better pledging and assigning unto the
Trustee all and singular the rights to payments under the
Notes and the First Mortgage Bonds and any other income and
other moneys pledged hereby to the payment of the principal
of and premium, if any, and interest on the Bonds. The
Issuer further covenants that it will not create or suffer
to be created any lien, encumbrance or charge upon its
interest in the Notes, the First Mortgage Bonds or the
Agreement, if any, except the lien of this Indenture.
SECTION 4.04. Recordation. The Issuer covenants that,
at the direction and expense of the Company, it will cause
all instruments as may be necessary to perfect and preserve
the security interest created by this Indenture to be
recorded or filed in such manner and in such places as may
be required by law.
SECTION 4.05. Inspection of Project Books. The Issuer
covenants and agrees that all books and documents in its
possession relating to the Project shall at all times be
open to inspection by the Trustee and its duly authorized
agents.
SECTION 4.06. Rights Under Agreement. The Agreement,
a duly executed counterpart of which has been filed with
the Trustee, sets forth the covenants and obligations of
the Issuer and the Company, and reference is hereby made to
the same for a detailed statement of said covenants and
obligations of the Company thereunder; and the Issuer
agrees that the Trustee in its own name or in the name of
the Issuer may enforce all rights of the Issuer and all
obligations of the Company under and pursuant to the
Agreement for and on behalf of the Bondholders, whether or
not the Issuer is in default hereunder.
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SECTION 4.07. Designation of Additional Paying Agents.
The Issuer may cause, with the consent of the Company, the
necessary arrangements to be made through the Trustee and
to be thereafter continued for the designation of
additional paying agents and for providing for the payment
of such of the Bonds as shall be presented when due at the
corporate trust office of the Trustee, or its successor in
trust hereunder, or at the principal office of said
additional paying agents. All such funds held by said
additional paying agents shall be held by each of them in
trust and shall constitute a part of the trust estate and
shall be subject to the security interest created hereby.
SECTION 4.08. Existence of Issuer. The Issuer
covenants that it will at all times maintain its corporate
existence and will duly procure any necessary renewals and
extensions thereof; will use its best efforts to maintain,
preserve and renew all the rights, powers, privileges and
franchises owned by it; and will comply with all valid
acts, rules, regulations and orders of any legislative,
executive, judicial or administrative body applicable to
the Project.
ARTICLE V
REVENUES AND FUNDS
SECTION 5.01. Source of Payment of Bonds. The Bonds
authenticated and delivered hereunder are the obligations
of the Issuer and the Issuer shall make payments hereunder
in respect of the principal of and premium, if any, and
interest on such Bonds. Such Bonds are not general
obligations of the Issuer but are limited obligations
payable solely from revenues and proceeds derived from the
Notes, the Agreement and the First Mortgage Bonds and as
authorized by the Act and provided herein.
SECTION 5.02. Creation of Bond Fund. There is hereby
created and established with the Trustee a trust fund to be
designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Georgia Power
Company Plant Scherer Project) First Series 1994 Bond
Fund". Moneys deposited therein shall be used to pay the
principal of and premium, if any, and interest on the Bonds
as provided in this Indenture.
SECTION 5.03. Payments into the Bond Fund. There
shall be deposited into the Bond Fund that portion of the
proceeds from the sale of the First Series 1994 Bonds
consisting of accrued interest on the First Series 1994
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Bonds up to the date of their delivery. In addition, there
shall be deposited into the Bond Fund, as and when
received, (i) all repayments of the Loan and interest
thereon made pursuant to the Notes; (ii) all other moneys
received by the Trustee under and pursuant to any of the
provisions of the Agreement or the Notes which are
required, or which are accompanied by directions from the
Company that such moneys are, to be paid into the Bond
Fund; and (iii) all payments, if any, made to the Trustee
as holder of First Mortgage Bonds. The Issuer hereby
covenants and agrees that, so long as any of the First
Series 1994 Bonds are outstanding, it will deposit, or
cause to be paid to the Trustee for deposit in the Bond
Fund for its account, sufficient sums from revenues derived
pursuant to the Notes promptly to meet and pay the
principal of and premium, if any, and interest on the First
Series 1994 Bonds as the same become due and payable;
provided, however, that nothing herein shall be construed
as requiring the Issuer to use any funds or revenues from
any source other than revenues derived pursuant to the
Agreement, the Notes or the First Mortgage Bonds. The
Trustee is authorized to receive at any time payments or
prepayments from the Company pursuant to the Notes for
deposit in the Bond Fund.
SECTION 5.04. Use of Moneys in the Bond Fund. All
interest accruing on the First Series 1994 Bonds up to the
date of their initial delivery will be paid from the
amounts deposited in the Bond Fund pursuant to the first
sentence of Section 5.03 hereof. Except as provided in
this Indenture, moneys in the Bond Fund shall be used
solely for the payment of the principal of and premium, if
any, and interest on the Bonds. Upon receipt of a written
notice from the Company pursuant to Section 4.7 of the
Agreement and, in the case of a directed purchase of Bonds,
upon the deposit of cash or Government Obligations in the
Bond Fund sufficient, together with other amounts available
therefor in the Bond Fund, to make the directed purchase of
Bonds, the Issuer and the Trustee covenant and agree to
take and cause to be taken the necessary steps to redeem or
purchase such principal amount of Bonds as specified by the
Company in such written notice; provided, however, that any
available moneys in the Bond Fund may be used on direction
of the Company to redeem a part of the Bonds outstanding
and then redeemable or to purchase Bonds for cancellation
so long as the Company is not in default with respect to
any payments required pursuant to the Notes and to the
extent said moneys are in excess of the amount required for
payment of the Bonds theretofore matured or called for
redemption and interest accrued and payable in respect of
outstanding Bonds.
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SECTION 5.05. Custody of the Bond Fund. The Bond Fund
shall be in the custody of the Trustee but in the name of
the Issuer, and the Issuer hereby authorizes and directs
the Trustee to withdraw sufficient funds from the Bond Fund
to pay the principal of and premium, if any, and interest
on the Bonds as the same become due and payable and to make
said funds so withdrawn available to the paying agents
hereunder at their principal office, for the purpose of
paying said principal and premium, if any, and interest,
which authorization and direction the Trustee hereby
accepts.
SECTION 5.06. Non-presentment of Bonds. In the event
any Bond shall not be presented for payment when the
principal thereof becomes due, either at maturity or at the
date fixed for redemption thereof, if funds sufficient to
pay such Bond shall have been deposited in the Bond Fund or
otherwise made available to the Trustee through deposit
therein as provided in Section 5.03, all liability of the
Issuer to the holder thereof for the payment of such Bond
shall forthwith cease, terminate and be completely
discharged, and thereupon it shall be the duty of the
Trustee to hold such funds within a separate account in the
Bond Fund, subject to the provisions of Section 3.05
hereof, without liability for interest thereon, for the
benefit of the holder of such Bond, which shall thereafter
(subject to the provisions of Section 3.05 hereof) be
restricted exclusively to such funds for any claim of
whatever nature on his part under this Indenture or on, or
with respect to, said Bond.
SECTION 5.07. Moneys to Be Held in Trust. All moneys
required to be deposited with or paid to the Trustee for
the account of the Bond Fund under any provision of this
Indenture shall be held by the Trustee in trust, and except
for moneys deposited with or paid to the Trustee for the
redemption of Bonds, notice of redemption of which has been
duly given, shall, while held by the Trustee, constitute
part of the trust estate and be subject to the security
interest created hereby.
SECTION 5.08. Repayment to the Company from the Bond
Fund. Any amounts remaining in the Bond Fund (other than
moneys, if any, set aside as provided in Sections 3.03,
3.05, 5.06 and 7.01 hereof), after payment in full of the
Bonds (or provision for payment thereof having been made in
accordance with this Indenture), the fees and expenses of
the Trustee and any additional paying agent and all other
amounts required to be paid hereunder, shall be repaid to
the Company as provided in Section 6.5 of the Agreement.
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ARTICLE VI
INVESTMENTS
SECTION 6.01. Investment of Bond Fund Moneys. Any
moneys held in the Bond Fund shall be invested and
reinvested by the Trustee, at the request of, and as
directed by, the Company in the obligations specified in
Section 6.02 hereof. Any such investments shall be held by
or under the control of the Trustee and shall be deemed at
all times to be a part of the Bond Fund and the interest
accruing thereon and any profit realized from such
investments shall be credited to the Bond Fund and any loss
resulting from such investments shall be charged to the
Bond Fund. The Trustee may make any and all investments
through its own bond or securities department or the bond
or securities department of any affiliate of the Trustee.
The Trustee, upon direction of the Company, shall sell and
reduce to cash a sufficient amount of such investments of
Bond Fund moneys whenever the cash balance in the Bond Fund
is insufficient to pay the principal of or premium, if any,
or interest on the Bonds when due.
SECTION 6.02. Permitted Investments. Except as
otherwise provided herein, any moneys held in the Bond Fund
shall be invested and reinvested by the Trustee, at the
request of, and as directed by, the Company, in
(a) Government Obligations;
(b) Bonds and notes of the Federal Land Bank;
(c) Obligations of the Federal Intermediate Credit
Bank;
(d) Obligations of the Federal Bank for Cooperatives;
(e) Bonds and notes of Federal Home Loan Banks;
(f) Negotiable or non-negotiable certificates of
deposit, time deposits or similar banking arrangements,
issued by a bank or trust company (which may be the
commercial banking department of the Trustee or any bank or
trust company under common control with the Trustee) or
savings and loan association which are insured by the
Federal Deposit Insurance Corporation or secured as to
principal by Government Obligations; or
(g) Other investments then permitted by law.
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SECTION 6.03. Non-Arbitrage Covenant. The Issuer
covenants that it shall take no action nor make any
investment or use of the proceeds of the Bonds which would
cause the Bonds to be treated as "arbitrage bonds" within
the meaning of Section 148 of the Internal Revenue Code of
1986, as amended (the "Code"), and the proposed, temporary
or final regulations thereunder to the extent that the same
may be applicable or proposed to be applicable to the Bonds
at the time of such action, investment or use.
Notwithstanding any provision of this Indenture to the
contrary, the Trustee shall not be liable or responsible
for any calculation or determination which may be required
in connection with, or for the purpose of complying with,
Section 148 of the Code, or any successor statute or any
regulation, ruling or other judicial or administrative
interpretation thereof, including, without limitation, the
calculation of amounts required to be paid to the United
States of America or the determination of the maximum
amount which may be invested in nonpurpose obligations
having a yield higher than the yield on the Bonds, and the
Trustee shall not be liable or responsible for monitoring
the compliance by the Issuer or the Company with any of the
requirements of Section 148 of the Code or any applicable
regulation, ruling or other judicial or administrative
interpretation thereof; it being acknowledged and agreed
that the sole obligation of the Trustee with respect to the
investment of monies held under any fund or account created
hereunder shall be to invest such monies in accordance with
Section 6.01 hereof in each case pursuant to the
instructions received by the Trustee in accordance with
Section 6.01 hereof.
ARTICLE VII
RELEASE OF LIEN
SECTION 7.01. Release of Lien. If, when any of the
Bonds shall have become due and payable in accordance with
their terms or otherwise as provided in this Indenture or
shall have been duly called for redemption or irrevocable
instructions to call such Bonds for redemption shall have
been given by the Issuer to the Trustee, the whole amount
of the principal and the interest and the premium, if any,
so due and payable upon such Bonds shall be paid or
sufficient cash or Government Obligations non-callable by
the issuer thereof, the principal of and the interest on
which when due will provide, without investment or
reinvestment, sufficient cash, shall be held by the Trustee
or the paying agents for such purpose under the provisions
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of this Indenture, then and in that case such Bonds shall
cease to be secured by the lien of this Indenture, and the
Trustee in such case, on demand of the Issuer, shall
release the lien of this Indenture with respect to such
Bonds and shall execute such documents to evidence such
release as may be reasonably required by the Issuer;
provided, however, that in the event Government Obligations
shall be deposited with and held by the Trustee or the
paying agents as hereinabove provided, then in addition to
the requirements set forth in Article III of this
Indenture, the Trustee shall within thirty (30) days after
such Government Obligations shall have been deposited with
it cause a notice signed by it to be published once in a
daily newspaper or financial journal having a general
circulation in the financial community in the Borough of
Manhattan, City and State of New York, setting forth
(a) the date designated for the redemption of such Bonds,
(b) a description of the Government Obligations so held by
it and (c) that the lien of this Indenture with respect to
such Bonds has been released in accordance with the
provisions of this Section.
All moneys and obligations held by the Trustee or the
paying agents pursuant to this Section shall be held in
trust and applied to the payment, when due, of the
principal of, premium, if any, and interest on such Bonds.
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE
AND BONDHOLDERS
SECTION 8.01. Events of Default. If any of the
following events occur, it is hereby defined and declared
to be and to constitute an "event of default":
(a) default in the payment when due of any interest on
any Bond; or
(b) default in the payment when due of the principal
of, or premium, if any, on any Bond, whether at the stated
maturity thereof, or upon proceedings for redemption
thereof, or upon the maturity thereof by declaration; or
(c) default in the performance or observance of any
other of the covenants, agreements or conditions on the
part of the Issuer in this Indenture or in the Bonds, and
continuance thereof for the period after notice specified
in Section 8.13 hereof; or
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(d) the occurrence of an "Event of Default" under
Section 5.1 of the Agreement; or
(e) the bonds outstanding under the First Mortgage
shall have been declared due and payable prior to their
stated maturities, and such acceleration shall not have
been rescinded.
SECTION 8.02. Acceleration. Upon the occurrence of an
event of default the Trustee may, and upon the written
request of the holders of not less than 25% in aggregate
principal amount of Bonds then outstanding shall, by notice
in writing delivered to the Issuer and the Company, declare
the principal of all Bonds then outstanding and the
interest accrued thereon immediately due and payable; and
such principal and interest shall thereupon become and be
immediately due and payable.
If after the principal of the Bonds has been so
declared to be due and payable, all arrears of interest and
interest on overdue installments of interest (if lawful) at
the rate per annum borne by the Bonds and the principal and
premium, if any, on all Bonds then outstanding which shall
have become due and payable otherwise than by acceleration
and all other sums payable under this Indenture or upon the
Bonds, except the principal of, and interest on, the Bonds
which by such declaration shall have become due and
payable, are paid by the Issuer, and the Issuer also
performs all other things in respect of which it may have
been in default hereunder and pays the reasonable charges
of the Trustee, the Bondholders and any trustee appointed
under law, including the Trustee's reasonable attorneys'
fees, then, and in every such case, the Trustee shall annul
such declaration and its consequences, and such annulment
shall be binding upon all holders of Bonds issued
hereunder; but no such annulment shall extend to or affect
any subsequent default or impair any right or remedy
consequent thereon. The Trustee shall forward a copy of
any such annulment notice pursuant to this paragraph to the
Issuer and the Company. Immediately upon such annulment,
the Trustee shall cancel, by notice to the First Mortgage
Trustee, any demand made by the Trustee pursuant to the
First Mortgage.
SECTION 8.03. Other Remedies. If any event of default
occurs and is continuing, except as otherwise provided in
Section 8.12 hereof, the Trustee, before or after declaring
the principal of the Bonds immediately due and payable, may
enforce each and every right granted to it as the holder of
First Mortgage Bonds and under the Notes and the Agreement
and any supplements or amendments thereto for the benefit
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of the Bondholders. In exercising such rights and the
rights given the Trustee under this Article VIII, the
Trustee shall take such action as, in the judgment of the
Trustee applying the standards described in Section 9.01(a)
hereof, would best serve the interests of the Bondholders.
SECTION 8.04. Legal Proceedings by Trustee. If any
event of default has occurred and is continuing, the
Trustee in its discretion may, and upon the written request
of the holders of not less than 25% in principal amount of
all Bonds then outstanding and receipt of indemnity to its
satisfaction shall, in its own name:
(a) by mandamus, or other suit, action or proceeding
at law or in equity, enforce all rights of the Bondholders,
including the right to require the Issuer to enforce any
rights under the Agreement and to require the Issuer to
carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under
the Act;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for
the Bondholders; or
(d) by action or suit in equity enjoin any acts or
things which may be unlawful or in violation of the rights
of the Bondholders.
No remedy conferred upon or reserved to the Trustee or
to the Bondholders by the terms of this Indenture is
intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in
addition to any other remedy given to the Trustee or to the
Bondholders hereunder or now or hereafter existing at law
or in equity or by statute.
No delay or omission to exercise any right or power
accruing upon any default or event of default shall impair
any such right or power or shall be construed to be a
waiver of any such default or event of default or
acquiescence therein; and every such right and power may be
exercised from time to time as often as may be deemed
expedient.
No waiver of any default or event of default hereunder,
whether by the Trustee or by the Bondholders, shall extend
to or shall affect any subsequent default or event of
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default or shall impair any rights or remedies consequent
thereon.
SECTION 8.05. Right of Bondholders to Direct
Proceedings. Anything in this Indenture to the contrary
notwithstanding, the holders of a majority in aggregate
principal amount of Bonds then outstanding shall have the
right, at any time, by an instrument or instruments in
writing executed and delivered to the Trustee, to direct
the method and place of conducting all proceedings to be
taken in connection with the enforcement of the terms and
conditions of this Indenture, or for the appointment of a
receiver or any other proceedings hereunder; provided, that
such direction shall not be otherwise than in accordance
with the provisions of law or of this Indenture.
SECTION 8.06. Appointment of Receivers. Upon the
occurrence and continuance of an event of default, and upon
the filing of a suit or other commencement of judicial
proceedings to enforce the rights of the Trustee and of the
Bondholders under this Indenture, the Trustee shall be
entitled as a matter of right to the appointment of a
receiver or receivers of the trust estate with such powers
as the court making such appointment shall confer.
SECTION 8.07. Waiver. Upon the occurrence and
continuance of an event of default, to the extent that such
rights may then lawfully be waived, neither the Issuer, nor
the State of Georgia, nor any political subdivision
thereof, nor anyone claiming through or under any of them,
shall set up, claim, or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws
now or hereafter in force, in order to prevent or hinder
the enforcement of this Indenture, but the Issuer, for
itself and all who may claim through or under it, hereby
waives, to the extent that it lawfully may do so, the
benefit of all such laws.
SECTION 8.08. Application of Moneys. All moneys
received by the Trustee pursuant to any right given or
action taken under the provisions of this Article VIII
shall, after payment of the costs and expenses of the
proceedings resulting in the collection of such moneys and
of the expenses, liabilities and advances incurred or made
by the Trustee, be deposited in the Bond Fund and all
moneys (except moneys held in separate accounts by the
Trustee pursuant to Sections 3.03, 3.05 and 5.06 hereof) in
the Bond Fund shall be applied as follows:
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(a) Unless the principal of all the Bonds shall have
become or shall have been declared due and payable, all
such moneys shall be applied:
FIRST: To the payment to the persons entitled
thereto of all installments of interest then due on the
Bonds, in the order of the maturity of the installments
of such interest and, if the amount available shall not
be sufficient to pay in full any particular
installment, then to the payment ratably, according to
the amounts due on such installment, to the persons
entitled thereto, without any discrimination or
privilege; and
SECOND: To the payment to the persons entitled
thereto of the unpaid principal of and premium, if any,
on any of the Bonds which shall have become due (other
than Bonds matured or called for redemption for the
payment of which moneys are held pursuant to the
provisions of this Indenture), in the order of their
due dates, with interest on such Bonds from the
respective dates upon which they became due and, if the
amount available shall not be sufficient to pay in full
Bonds due on any particular date, together with
such interest, then to the payment ratably, according
to the amount of principal due on such date, to the
persons entitled thereto without any discrimination or
privilege.
(b) If the principal of all the Bonds shall have
become due or shall have been declared due and payable, all
such moneys shall be applied to the payment of the
principal and interest then due upon the Bonds, without
preference or priority of principal over interest or of
interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over
any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been
declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the
provisions of this Article VIII then, subject to the
provisions of subsection (b) of this Section 8.08 in the
event that the principal of all the Bonds shall later
become due or be declared due and payable, the moneys shall
be applied in accordance with the provisions of subsection
(a) of this Section 8.08.
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Whenever moneys are to be applied pursuant to the
provisions of this Section 8.08, such moneys shall be
applied at such times, and from time to time, as the
Trustee shall determine, having due regard to the amount of
such moneys available for application and the likelihood of
additional moneys becoming available for such application
in the future. Whenever the Trustee shall apply such
funds, it shall fix the date (which shall be an interest
payment date unless it shall deem another date more
suitable) upon which such application is to be made and
upon such date interest on the amounts of principal to be
paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the
deposit with it of any such moneys and of the fixing of any
such date, and shall not be required to make payment to the
holder of any Bond until such Bond shall be presented to
the Trustee for appropriate endorsement or for cancellation
if fully paid.
Whenever all principal of and premium, if any, and
interest on all Bonds have been paid under the provisions
of this Section 8.08 and all expenses and charges of the
Trustee and any paying agents have been paid, any balance
remaining in the Bond Fund shall be paid to the Company as
provided in Section 5.08 hereof.
SECTION 8.09. Remedies Vested in Trustee. All rights
of action (including the right to file proof of claims)
under this Indenture or under any of the Bonds may be
enforced by the Trustee without the possession of any of
the Bonds or the production thereof in any trial or
proceedings relating thereto; and any such suit or
proceeding instituted by the Trustee shall be brought in
its name as Trustee without the necessity of joining as
plaintiffs or defendants any holders of the Bonds; and any
recovery of judgment shall be for the equal and ratable
benefit of the holders of the outstanding Bonds.
SECTION 8.10. Rights and Remedies of Bondholders. No
holder of any Bond shall have any right to institute any
suit, action or proceeding in equity or at law for the
enforcement of this Indenture or for the execution of any
trust hereof or for the appointment of a receiver or any
other remedy hereunder, unless (i) a default has occurred
of which the Trustee has been notified as provided in
Section 9.01(h) hereof, or of which by said subsection it
is deemed to have notice, (ii) such default shall have
become an event of default and the holders of not less than
25% in aggregate principal amount of Bonds then outstanding
shall have made written request to the Trustee and shall
have offered it reasonable opportunity either to proceed to
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exercise the powers hereinbefore granted or to institute
such action, suit or proceeding in its own name, (iii) they
have offered to the Trustee indemnity as provided in
Section 9.01(l) hereof, and (iv) the Trustee shall
thereafter fail or refuse to exercise the powers
hereinbefore granted, or to institute such action, suit or
proceeding in its own name; and such notification, request
and offer of indemnity are hereby declared in every case at
the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and
to any action or cause of action for the enforcement of
this Indenture, or for the appointment of a receiver or for
any other remedy hereunder; it being understood and
intended that no one or more holders of the Bonds shall
have any right in any manner whatsoever to affect, disturb
or prejudice the lien of this Indenture by its, his or
their action or to enforce any right hereunder except in
the manner herein provided, and that all proceedings at law
or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal and ratable
benefit of the holders of all Bonds then outstanding.
Nothing in this Indenture contained shall, however, affect
or impair the right of any Bondholder to enforce the
payment of the principal of and premium, if any, and
interest on any Bond at and after the maturity thereof, or
the obligation of the Issuer to pay the principal of and
premium, if any, and interest on each of the Bonds issued
hereunder to the respective holders thereof at the time and
place, from the source and in the manner in the Bonds
expressed.
SECTION 8.11. Termination of Proceedings. In case the
Trustee shall have proceeded to enforce any right under
this Indenture by the appointment of a receiver, or
otherwise, and such proceedings shall have been continued
or abandoned for any reason, or shall have been determined
adversely, then and in every such case the Issuer and the
Trustee shall be restored to their former positions and
rights hereunder, and all rights, remedies and powers of
the Trustee shall continue as if no such proceedings had
been taken.
SECTION 8.12. Waivers of Events of Default. The
Trustee may in its discretion waive any event of default
hereunder and its consequences and rescind any declaration
of maturity of principal, and shall do so upon the written
request of the holders of (a) not less than two-thirds in
aggregate principal amount of all the Bonds then
outstanding in respect of which default in the payment of
principal and/or interest exists, or (b) more than 50% in
aggregate principal amount of all Bonds then outstanding in
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the case of any other default; provided, however, that
there shall not be waived (i) any event of default in the
payment of the principal of any outstanding Bonds when due
or (ii) any default in the payment when due of the interest
on any such Bonds unless prior to such waiver or
rescission, all arrears of interest, with interest (to the
extent permitted by law) at the rate borne by the Bonds in
respect of which such default shall have occurred on
overdue installments of interest or all arrears of payments
of principal when due, as the case may be, and all expenses
of the Trustee in connection with such default shall have
been paid or provided for, and in case of any such waiver
or rescission, or in the case any proceeding taken by the
Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then and
in every such case the Issuer, the Trustee and the
Bondholders shall be restored to their former positions and
rights hereunder respectively, but no such waiver or
rescission shall extend to any subsequent or other default,
or impair any right consequent thereon.
SECTION 8.13. Notice of Default under Section
8.01(c);Opportunity of Issuer and the Company to Cure Such
Default. Anything herein to the contrary notwithstanding,
no default under Section 8.01(c) hereof shall constitute an
event of default until actual notice of such default by
registered or certified mail shall be given to the Issuer
and the Company by the Trustee or by the holder or holders
of not less than 25% in aggregate principal amount of all
Bonds outstanding and the Issuer and the Company shall have
had sixty days after receipt of such notice to correct said
default or cause said default to be corrected within the
applicable period; provided, however, if said default be
such that it cannot be corrected within the applicable
period, it shall not constitute an event of default if
corrective action is instituted by the Issuer or the
Company within the applicable period and diligently pursued
until the default is corrected.
With regard to any alleged default concerning which
notice is given to the Issuer and the Company under the
provisions of this Section 8.13, the Issuer hereby grants
the Company full authority for the account of the Issuer to
perform any covenant or obligation alleged in said notice
to constitute a default, in the name and stead of the
Issuer with full power to do any and all things and acts to
the same extent that the Issuer could do and perform any
such things and acts and with power of substitution.
In the event that the Trustee fails to receive any
payment when due under the Notes, the Trustee shall
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immediately give written notice to the Company specifying
such failure.
ARTICLE IX
THE TRUSTEE
SECTION 9.01. Acceptance of the Trusts. The Trustee
hereby accepts the trusts imposed upon it by this
Indenture, and agrees to perform said trusts, but only upon
and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of any
event of default and after the curing or waiver of all
events of default which may have occurred, undertakes
to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an
event of default has occurred (which has not been cured
or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their
exercise, as a prudent corporate trustee would exercise
or use under the circumstances in the enforcement of a
corporate indenture.
(b) The Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or
through attorneys, agents, receivers or employees
selected by it with reasonable care and the Trustee
shall not be responsible for the conduct of such
attorneys, agents, receivers or employees, if selected
with reasonable care, and shall be entitled to advice
of counsel concerning all matters relating to the
trusts hereof and the duties hereunder, and may in all
cases pay such reasonable compensation to all such
attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts
hereof. The Trustee may act upon the opinion or advice
of any attorney (who may be the attorney or attorneys
for the Issuer or the Company), approved by the Trustee
in the exercise of reasonable care. The Trustee shall
not be responsible for any loss or damage resulting
from any action or inaction in good faith in reliance
upon such opinion or advice.
(c) The Trustee shall not be responsible for any
recital herein, or in the Bonds (except in respect to
the certificate of the Trustee endorsed on the Bonds),
or for the recording or re-recording, filing or
re-filing of this Indenture, or any other instrument
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required by this Indenture to secure the Bonds, or for
insuring the Project or collecting any insurance
moneys, or for validity of the execution by the Issuer
of this Indenture or of any supplements hereto or
instruments of further assurance, or for the
sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby.
(d) The Trustee shall not be accountable for the
use of any Bonds authenticated or delivered hereunder.
The Trustee may become the owner of Bonds secured
hereby with the same rights which it would have if not
the Trustee. To the extent permitted by law, the
Trustee may also receive tenders and purchase in good
faith Bonds from itself, including any department,
affiliate or subsidiary, with like effect as if it were
not the Trustee.
(e) The Trustee shall be protected in acting upon
any notice, request, consent, certificate, order,
affidavit, letter, telegram or other paper or document
believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons.
Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of
any person who at the time of making such request or
giving such authority or consent is the owner of any
Bond, shall be conclusive and binding upon all future
owners of the same Bond and upon owners of Bonds issued
in exchange therefor or in place thereof.
(f) As to the existence or non-existence of any
fact or as to the sufficiency or validity of any
instrument, paper or proceeding, the Trustee shall be
entitled to rely upon a certificate signed by the
Issuer or the Company as sufficient evidence of the
facts therein contained; and prior to the occurrence of
a default of which the Trustee has been notified as
provided in subsection (h) of this Section 9.01, or of
which by said subsection it is deemed to have notice,
the Trustee shall also be at liberty to accept a
similar certificate to the effect that any particular
dealing, transaction or action is necessary or
expedient, but may at its discretion secure such
further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same. The
Trustee may accept a certificate of the Secretary or
Assistant Secretary of the Issuer under the Issuer's
seal to the effect that a resolution in the form
therein set forth has been adopted by the Issuer as
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conclusive evidence that such resolution has been duly
adopted, and is in full force and effect.
(g) The permissive right of the Trustee to do
things enumerated in this Indenture shall not be
construed as a duty, and it shall not be answerable for
other than its negligence or willful default.
(h) The Trustee shall not be required to take
notice or be deemed to have notice of any event of
default hereunder except failure by the Issuer to cause
to be made any of the payments to the Trustee required
to be made by Article IV hereof or the existence of an
event of default described in Section 8.01(c) hereof,
unless the Trustee shall be specifically notified in
writing of such event of default by the Issuer or by
the holders of at least 25% in aggregate principal
amount of Bonds then outstanding; and all notices or
other instruments required by this Indenture to be
delivered to the Trustee must, in order to be
effective, be delivered at the principal corporate
trust office of the Trustee, and in the absence of such
notice so delivered the Trustee may conclusively assume
there is no default except as aforesaid.
(i) At any and all reasonable times the Trustee
and its duly authorized agents, attorneys, experts,
engineers, accountants and representatives shall have
the right fully to inspect any and all parts of the
Project, including all books, papers and records of the
Issuer pertaining to the Project and the Bonds and to
take such memoranda from and in regard thereto as may
be desired.
(j) The Trustee shall not be required to give any
bond or surety in respect of the execution of the said
trusts and powers or otherwise in respect of the
premises.
(k) Notwithstanding anything elsewhere in this
Indenture contained, the Trustee shall have the right,
but shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any
cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any
showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof,
in addition to that by the terms hereof required as a
condition of such action by the Trustee, which the
Trustee in its discretion may deem desirable for the
purpose of establishing the right of the Issuer to the
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authentication of any Bonds, the withdrawal of any
cash, or the taking of any other action by the Trustee.
(l) Before taking any action referred to in
Section 8.02, 8.03, 8.04, 8.05, 8.06, 8.10, 8.12 or
9.04 hereunder, the Trustee may require that a
satisfactory indemnity bond be furnished for the
reimbursement of all expenses to which it may be put
and to protect it against all liability, except
liability which is adjudicated to have resulted from
its negligence or willful default by reason of any
action so taken.
(m) All moneys received by the Trustee or any
paying agent shall, until used or applied or invested
as herein provided, be held in trust for the purposes
for which they were received but need not be segregated
from other funds except to the extent required herein
or by law. Neither the Trustee nor any paying agent
shall be under any liability for interest on any moneys
received hereunder except such as may be mutually
agreed upon.
SECTION 9.02. Fees, Charges and Expenses of Trustee.
The Trustee shall be entitled to payment and reimbursement
for reasonable fees for its services rendered hereunder and
all advances, counsel fees and other expenses reasonably
and necessarily made or incurred by the Trustee in
connection with such services. Upon an event of default,
but only upon an event of default, the Trustee shall have a
first lien, with right of payment prior to payment on
account of principal of and premium, if any, and interest
on any Bond, upon the trust estate for the foregoing fees,
charges and expenses incurred by it.
SECTION 9.03. Notice to Bondholders if an Event of
Default Occurs. If an event of default occurs of which the
Trustee is by Section 9.01(h) hereof required to take
notice or if notice of an event of default be given as in
Section 9.01(h) provided, then the Trustee shall promptly
give written notice thereof by registered or certified mail
to each owner of Bonds then outstanding.
SECTION 9.04. Intervention by Trustee. In any
judicial proceeding to which the Issuer is a party and
which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of the owners of the
Bonds, the Trustee may intervene on behalf of the
Bondholders and shall do so if requested in writing by the
owners of at least 25% of the aggregate principal amount of
Bonds then outstanding. The rights and obligations of the
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Trustee under this Section 9.04 are subject to the approval
of a court of competent jurisdiction.
SECTION 9.05. Successor Trustee. Any corporation or
association into which the Trustee may be converted or
merged, or with which it may be consolidated, or to which
it may sell or transfer its trust business and assets as a
whole or substantially as a whole or any corporation or
association resulting from any such conversion, sale,
merger, consolidation or transfer to which it is a party,
ipso facto, shall be and become successor Trustee hereunder
and vested with all of the title to the trust estate and
all the trusts, powers, discretions, immunities, privileges
and all other matters as was its predecessor, without the
execution or filing of any instrument or any further act,
deed or conveyance on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
SECTION 9.06. Resignation by Trustee. The Trustee and
any successor Trustee may at any time resign from the
trusts hereby created by giving thirty days' written notice
to the Issuer and the Company, served personally or sent by
registered or certified mail, and to each owner of Bonds
then outstanding, sent by registered or certified mail, and
such resignation shall take effect at the end of such
thirty days, or upon the earlier appointment of a successor
Trustee pursuant to Section 9.08 hereof.
SECTION 9.07. Removal of Trustee. The Trustee may be
removed at any time, by an instrument or concurrent
instruments in writing delivered to the Trustee and to the
Issuer and the Company, and signed by the owners of a
majority in aggregate principal amount of Bonds then
outstanding.
SECTION 9.08. Appointment of Successor Trustee. In
case the Trustee hereunder shall resign or be removed, or
be dissolved, or shall be in course of dissolution or
liquidation, or otherwise become incapable of acting
hereunder, or in case it shall be taken under the control
of any public officer or officers, or of a receiver
appointed by a court, a successor shall be appointed by the
Issuer at the direction of the Company. The Issuer shall
cause notice of such appointment to be given in the same
manner as the giving of notices of redemption as set forth
in Section 3.02 hereof. If the Issuer fails to make such
appointment promptly, a successor may be appointed by the
owners of a majority in aggregate principal amount of Bonds
then outstanding. Every such successor Trustee appointed
pursuant to the provisions of this Section 9.08 shall be a
trust company or bank in good standing having a reported
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capital, surplus and undivided profits of not less than
$25,000,000, if there be such an institution willing,
qualified and able to accept the trusts upon reasonable and
customary terms.
SECTION 9.09. Concerning Any Successor Trustee. Every
successor Trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor and also to the
Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested
with all of the estates, properties, rights, powers,
trusts, duties and obligations of its predecessor; but such
predecessor shall, nevertheless, on the written request of
the Issuer, or of its successor, execute and deliver an
instrument transferring to such successor Trustee all the
estates, properties, rights, powers and trusts of such
predecessor hereunder, and every predecessor Trustee shall
deliver all securities and moneys held by it as Trustee
hereunder to its successor. Should any instrument in
writing from the Issuer be required by any successor
Trustee for more fully and certainly vesting in such
successor the estate, rights, powers and duties hereby
vested or intended to be vested in the predecessor, any and
all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. The
resignation of any Trustee and the instrument or
instruments removing any Trustee and appointing a successor
hereunder, together with all other instruments provided for
in this Article IX, shall be filed and/or recorded by the
successor Trustee in each recording office where the
Indenture shall have been filed and/or recorded and the
successor Trustee shall bear the cost thereof.
SECTION 9.10. Successor Trustee as Bond Registrar,
Custodian of Bond Fund and Paying Agent. In the event of a
change of Trustee, the Trustee which has resigned or been
removed shall cease to be Bond Registrar, custodian of the
Bond Fund and a paying agent for principal of and premium,
if any, and interest on the Bonds, and the successor
Trustee shall become such Bond Registrar, custodian and a
paying agent.
SECTION 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company. Whenever, after a
reasonable request by the Company, the Issuer shall fail,
refuse or neglect to give any direction to the Trustee or
to require the Trustee to take any action which the Issuer
is required to have the Trustee take pursuant to the
provisions of the Agreement or this Indenture, the Company
as agent of the Issuer may give any such direction to the
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Trustee or require the Trustee to take any such action, and
the Trustee is hereby irrevocably empowered and directed to
accept such direction from the Company as sufficient for
all purposes of this Indenture. The Company shall have the
right as agent of the Issuer to cause the Trustee to comply
with any of the Trustee's obligations under this Indenture
to the same extent that the Issuer is empowered so to do.
Certain actions or failures to act by the Issuer under
this Indenture may create or result in an event of default
under this Indenture and the Company, as agent of the
Issuer, may to the extent permitted by law, perform any and
all acts or take such action as may be necessary for and on
behalf of the Issuer to prevent or correct said event of
default and the Trustee shall take or accept such
performance by the Company as performance by the Issuer in
such event.
The Issuer hereby makes, constitutes and appoints the
Company irrevocably as its agent to give all directions, do
all things and perform all acts provided, and to the extent
so provided, by this Section 9.11.
SECTION 9.12. No Transfer of Notes or First Mortgage
Bonds Held by the Trustee; Exception. Except as required
to effect an assignment to a successor Trustee, the Trustee
shall not sell, assign or transfer Notes or First Mortgage
Bonds, and the Trustee is authorized to enter into an
agreement with the Company to such effect, including a
consent to the issuance of stop transfer instructions to
the First Mortgage Trustee.
SECTION 9.13. Filing of Certain Continuation
Statements. From time to time, the Trustee shall duly
file, or cause to be filed, at the expense of the Company,
continuation statements for the purpose of continuing
without lapse the effectiveness of the filing of the
financing statements with respect to the security interest
created by this Indenture in the Agreement, the Notes and
the First Mortgage Bonds, at or prior to the issuance of
the First Series 1994 Bonds and any Additional Bonds and
any previously filed continuation statements which shall
have been filed as herein required. The Issuer shall sign
and deliver to the Trustee or its designee such
continuation statements as may be requested of it from time
to time by the Trustee. Upon the filing of any such
continuation statements the Trustee shall immediately
notify the Issuer and the Company that the same has been
accomplished.
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SECTION 9.14. Voting of First Mortgage Bonds Held by
the Trustee. The Trustee, as a holder of First Mortgage
Bonds, shall attend any meeting of bondholders under the
First Mortgage as to which it receives due notice. Either
at such meeting, or otherwise where consent of holders of
first mortgage bonds of the Company is sought without a
meeting, the Trustee shall vote as such holder, or shall
consent with respect thereto, proportionately with what the
Trustee reasonably believes will be the vote or consent of
all other first mortgage bonds of the Company then
outstanding and eligible to vote or consent.
Notwithstanding the foregoing, the Trustee shall not
vote as such holder in favor of, or give its consent to,
any action which, in the Trustee's opinion, would
materially adversely affect the interests of the
Bondholders, except upon notification by the Trustee to the
Bondholders of such proposal and consent thereto of the
holders of at least 50% in aggregate principal amount of
the Bonds then outstanding and, if such action would also
affect one or more but less than all series of Bonds, the
consent thereto of the holders of at least 50% in aggregate
principal amount of all the outstanding Bonds of such
series so affected and, if such proposal would so affect
the rights of some but less than all the outstanding Bonds
of any one series, the consent thereto of the holders of at
least 50% in aggregate principal amount of the Bonds so
affected.
ARTICLE X
INDENTURES SUPPLEMENTAL HERETO
SECTION 10.01. Supplemental Indentures Not Requiring
Consent of Bondholders. The Issuer and the Trustee may,
without the consent of, or notice to, any of the
Bondholders, enter into such indenture or indentures
supplemental to this Indenture as shall not be inconsistent
with the terms and provisions hereof for any one or more of
the following purposes:
(a) to set forth any or all of the matters in
connection with the issuance of Additional Bonds as
provided in Section 2.10 hereof;
(b) to cure any ambiguity, defect or omission in
this Indenture, or to otherwise amend this Indenture,
in such manner as shall not in the opinion of the
Trustee impair the security hereof or adversely affect
the Bondholders;
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(c) to grant to or confer upon the Trustee for
the benefit of the Bondholders any additional rights,
remedies, powers or authorities that may lawfully be
granted or conferred upon the Bondholders or the
Trustee;
(d) to add additional covenants of the Issuer, or
to surrender any right or power herein conferred upon
the Issuer;
(e) to subject to this Indenture additional
revenues, properties or collateral;
(f) to modify, amend or supplement this Indenture
or any indenture supplemental hereto in such manner as
to permit the qualification hereof and thereof under
the Trust Indenture Act of 1939 or any similar federal
statute hereafter in effect or to permit the
qualification of the Bonds for sale under the
securities laws of any of the states of the United
States, and, if they so determine, to add to this
Indenture or any indenture supplemental hereto such
other terms, conditions and provisions as may be
permitted by said Trust Indenture Act of 1939 or
similar federal statute; and
(g) to evidence the succession of a new Trustee
hereunder.
SECTION 10.02. Supplemental Indentures Requiring
Consent of Bondholders. Exclusive of supplemental
indentures covered by Section 10.01 hereof and subject to
the terms and provisions contained in this Section 10.02,
and not otherwise, the holders of not less than 50% in
aggregate principal amount of the Bonds then outstanding
shall have the right, from time to time, anything contained
in this Indenture to the contrary notwithstanding, to
consent to and approve the execution by the Issuer and the
Trustee of such other indenture or indentures supplemental
hereto as shall be deemed necessary and desirable by the
Trustee for the purpose of modifying, altering, amending,
adding to or rescinding, in any particular, any of the
terms or provisions contained in this Indenture or in any
indenture supplemental hereto; provided, however, that
nothing in this Section 10.02 contained shall permit, or be
construed as permitting (i) an extension of the maturity or
mandatory sinking fund redemption dates of the principal of
or the interest on any Bond issued hereunder, or (ii) a
reduction in the principal amount of, or redemption premium
on, any Bond or Bonds or the rate or rates of interest
thereon, or (iii) a privilege or priority of any
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outstanding Bond or Bonds over any other outstanding Bond
or Bonds, or (iv) a reduction in the aggregate principal
amount of the Bonds required for consent to such
supplemental indenture.
If at any time the Issuer shall request the Trustee to
enter into any such supplemental indenture for any of the
purposes of this Section 10.02, the Trustee shall, upon
being satisfactorily indemnified with respect to expenses,
cause notice of the proposed execution of such supplemental
indenture to be given in the same manner as the giving of
notices of redemption as set forth in Section 3.02 hereof.
Such notice shall briefly set forth the nature of the
proposed supplemental indenture and shall state that copies
thereof are on file at the principal corporate trust office
of the Trustee for inspection by all Bondholders. If,
within sixty days or such longer period as shall be
prescribed by the Issuer following the giving of such
notice, the holders of not less than 50% in aggregate
principal amount of the Bonds outstanding at the time of
the execution of any such supplemental indenture shall have
consented to and approved the execution thereof as herein
provided, no holder of any Bond shall have any right to
object to any of the terms and provisions contained
therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Issuer from executing
the same or from taking any action pursuant to the
provisions thereof. Upon the execution of any such
supplemental indenture as in this Section 10.02 permitted
and provided, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and without
the necessity for notation on the outstanding Bonds.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article X which affects
the rights of the Company shall not become effective unless
and until the Company shall have consented to the execution
and delivery of such supplemental indenture. In this
regard, the Trustee shall cause notice of the proposed
execution and delivery of any such supplemental indenture
together with a copy of the proposed supplemental indenture
to be mailed by certified or registered mail to the Company
at least fifteen days prior to the giving of notice of the
proposed execution of such supplemental indenture as
provided in this Section 10.02. The Company shall be
deemed to have consented to the execution and delivery of
any such supplemental indenture if the Trustee does not
receive a letter of protest or objection thereto signed by
or on behalf of the Company on or before 4:30 P.M., local
time, on the fifteenth day after the Company's receipt of
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said notice and a copy of the proposed supplemental
indenture.
SECTION 10.03. Trustee Authorized to Join in
Supplements; Reliance on Counsel. The Trustee is
authorized to join with the Issuer in the execution and
delivery of any supplemental indenture permitted by this
Article X and in so doing shall be fully protected by an
opinion of counsel, who may be counsel for the Issuer or
the Company, that such supplemental indenture is so
permitted and has been duly authorized by the Issuer and
that all things necessary to make it a valid and binding
supplemental indenture have been done.
ARTICLE XI
AMENDMENT OF AGREEMENT
SECTION 11.01. Amendments, Etc., to Agreement Not
Requiring Consent of Bondholders. The Issuer and the
Trustee shall, without the consent of or notice to the
Bondholders, consent to any amendment, change or
modification of the Agreement which may be entered into
pursuant to Section 2.10 hereof or as may be required
(i) by the provisions of the Agreement or this Indenture,
(ii) for the purpose of curing any ambiguity or formal
defect or omission, (iii) in connection with the Project
facilities so as to identify the same more precisely or
substitute or add additional facilities, or (iv) in
connection with any other change therein which, in the
judgment of the Trustee, is not to the prejudice of the
Trustee or the Bondholders.
SECTION 11.02. Amendments, Etc., to Agreement
Requiring Consent of Bondholders. Except for the
amendments, changes or modifications as provided in Section
11.01 hereof, neither the Issuer nor the Trustee shall
consent to any other amendment, change or modification of
the Agreement or the terms of the Notes without the giving
of notice and the written approval or consent of the
holders of not less than 50% in aggregate principal amount
of the Bonds at the time outstanding given and procured as
in this Section 11.02 provided. If at any time the Issuer
and the Company shall request the consent of the Trustee to
any such proposed amendment, change or modification of the
Agreement or the terms of the Notes, the Trustee shall,
upon being satisfactorily indemnified with respect to
expenses, cause notice of such proposed amendment, change
or modification to be given in the same manner as provided
by Section 10.02 hereof with respect to supplemental
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<PAGE>
indentures. Such notice shall briefly set forth the nature
of such proposed amendment, change or modification and
shall state that copies of the instrument embodying the
same are on file with the Trustee for inspection by all
Bondholders.
SECTION 11.03. Trustee Authorized to Join in
Amendments; Reliance on Counsel. The Trustee is authorized
to join with the Issuer in the execution and delivery of
any amendment permitted by this Article XI and in so doing
shall be fully protected by an opinion of counsel, who may
be counsel for the Issuer or the Company, that such
amendment is so permitted and has been duly authorized by
the Issuer and that all things necessary to make it a valid
and binding agreement have been done.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Consents, Etc., of Bondholders. Any
consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and
executed by the Bondholders may be in any number of
concurrent writings of similar tenor and may be signed or
executed by such Bondholders in person or by agent
appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other
instrument or of the writing appointing any such agent, if
made in the following manner, shall be sufficient for any
of the purposes of this Indenture, and shall be conclusive
in favor of the Trustee with regard to any action taken by
it under such request or other instrument, namely:
The fact and date of the execution by any person
of any such writing may be proved by the certificate of
any officer in any jurisdiction who by law has power to
take acknowledgments within such jurisdiction that the
person signing such writing acknowledged before him the
execution thereof, or by an affidavit of any witness to
such execution.
SECTION 12.02. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing
expressed or mentioned in or to be inferred from this
Indenture, or the Bonds, is intended or shall be construed
to give to any person or company other than the Company,
the parties hereto, and the holders of the Bonds, any legal
or equitable right, remedy or claim under or in respect of
this Indenture or any covenants, conditions and provisions
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herein contained; this Indenture and all of the covenants,
conditions and provisions hereof are intended to be and are
for the sole and exclusive benefit of the Company, the
parties hereto and the holders of the Bonds as herein
provided.
SECTION 12.03. Severability. If any provision of this
Indenture shall be held or deemed to be or shall, in fact,
be illegal, inoperative or unenforceable, the same shall
not affect any other provision or provisions herein
contained or render the same invalid, inoperative or
unenforceable to any extent whatever.
SECTION 12.04. Notices. Any notice, request,
complaint, demand, communication or other paper shall be
sufficiently given and shall be deemed given when delivered
or mailed by registered or certified mail, postage prepaid,
or sent by telegram, addressed as follows: if to the
Issuer, c/o Board of Commissioners of Monroe County,
Forsyth, Georgia 31029; if to the Trustee, at 600 Peachtree
Street, N.E., Suite 900, Atlanta, Georgia 30308, Attention:
Corporate Trust Department; if to the Company, at 333
Piedmont Avenue, N.E., Atlanta, Georgia 30308, Attention:
Treasurer, with copies to Southern Company Services, Inc.,
64 Perimeter Center East, Atlanta, Georgia 30346,
Attention: Corporate Finance Department; and if to the
First Mortgage Trustee, to Chemical Bank, 450 West 33rd
Street, New York, New York 10001, Attention: Corporate
Trustee Administration. A duplicate copy of each notice
required to be given hereunder by either the Issuer or the
Trustee shall also be given to the Company, and a duplicate
copy of each notice required to be given hereunder by the
Trustee to either the Issuer or the Company shall also be
given to the other. The Issuer, the Company, the Trustee
and the First Mortgage Trustee may, by notice given
hereunder, designate any further or different addresses to
which subsequent notices, certificates or other
communications shall be sent.
SECTION 12.05. Trustee as Paying Agent and Bond
Registrar. The Trustee is hereby designated and agrees to
act as a paying agent and Bond Registrar for and in respect
of the Bonds.
SECTION 12.06. Payments Due on Saturdays, Sundays and
Holidays. In any case where the date of maturity of
interest on or principal of the Bonds or the date fixed for
redemption of any Bonds shall be in the city of payment a
Saturday, a Sunday or a legal holiday or a day on which
banking institutions are authorized by law to close, then
payment of interest or principal and premium, if any, need
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not be made on such date but may be made on the next
succeeding business day with the same force and effect as
if made on the date of maturity or the date fixed for
redemption, and no interest on such payment shall accrue
for the period after such date.
SECTION 12.07. Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the
same instrument.
SECTION 12.08. Applicable Provisions of Law. This
Indenture shall be governed by and construed in accordance
with the laws of the State of Georgia.
SECTION 12.09. Captions. The captions or headings in
this Indenture are for convenience only and in no way
define, limit or describe the scope or intent of any
provisions or Sections of this Indenture.
SECTION 12.10. No Liability of Officers. No covenant
or agreement contained in the Bonds or this Indenture shall
be deemed to be a covenant or agreement of any
commissioner, agent or employee of the Issuer in his
individual capacity, and neither the officers of the Issuer
nor any official executing the Bonds or this Indenture
shall be liable personally on the Bonds or be subject to
any personal liability or accountability by reason of the
issuance of the Bonds or the execution and delivery of this
Indenture.
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<PAGE>
IN WITNESS WHEREOF, the Development Authority of Monroe
County has caused these presents to be signed in its name
and behalf and its official seal to be hereunto affixed and
attested by its duly authorized officers, and to evidence
its acceptance of the trusts hereby created NationsBank of
Georgia, National Association, as Trustee, has caused these
presents to be signed in its name and behalf and its
official seal to be hereunto affixed and attested by its
duly authorized officers, all as of the day and year first
above written.
DEVELOPMENT AUTHORITY OF
MONROE COUNTY
By: ___________________________
Attest:
___________________________
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION,
as Trustee
By: ___________________________
Attest:
___________________________
<PAGE>
<PAGE>
EXHIBIT C
==============================================================
GEORGIA POWER COMPANY
to
CHEMICAL BANK
(Successor by Merger to Chemical Bank New York Trust
Company and The New York Trust Company),
Trustee
==============
SUPPLEMENTAL INDENTURE
==============
Dated as of January 1, 1994
Providing among other things for
FIRST MORTGAGE BONDS
5.40% Pollution Control Series due January 1, 2024
==============================================================
<PAGE>
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of January 1, 1994, made
and entered into by and between GEORGIA POWER COMPANY, a
corporation organized and existing under the laws of the State of
Georgia with its principal office in Atlanta, Fulton County,
Georgia (hereinafter commonly referred to as the "Company"), and
CHEMICAL BANK (successor by merger to Chemical Bank New York
Trust Company and The New York Trust Company), a corporation
organized and existing under the laws of the State of New York,
with its principal corporate trust office in the Borough of
Manhattan, The City of New York (hereinafter commonly referred to
as the "Trustee"), as Trustee under the Indenture dated as of
March 1, 1941 originally entered into between the Company and The
New York Trust Company, as Trustee (hereinafter sometimes
referred to as the "Original Indenture" and said The New York
Trust Company being hereinafter sometimes referred to as the
"Original Trustee"), securing bonds issued and to be issued as
provided therein, which Original Indenture has heretofore been
supplemented and amended by various supplemental indentures
(which Original Indenture as so supplemented and amended is
hereinafter sometimes referred to as the "Indenture").
WHEREAS the Company and the Original Trustee have executed
and delivered the Original Indenture for the purpose of securing
an issue of bonds of the 3-1/2% Series due 1971 described therein
and such additional bonds as may from time to time be issued
under and in accordance with the terms of the Indenture, the
aggregate principal amount of bonds to be secured thereby being
presently limited to $5,000,000,000 at any one time outstanding
(except as provided in Section 2.01 of the Indenture), and the
Original Indenture is of record in the public office of each
county in the States of Georgia, Alabama, Tennessee and South
Carolina, and in the public office of the District of Columbia,
in which this Supplemental Indenture is to be recorded, and the
Original Indenture is on file at the principal corporate trust
office of the Trustee; and
WHEREAS the Company and the Trustee have executed and
delivered various supplemental indentures for the purpose, among
others, of further securing said bonds and of creating the bonds
of other series described therein, which supplemental indentures
described and set forth additional property conveyed thereby and
are also of record in the public offices of some or all of the
counties in the States of Georgia, Alabama, Tennessee and South
Carolina in which this Supplemental Indenture is to be recorded,
and one of which supplemental indentures is also of record in the
public office of the District of Columbia, and said supplemental
indentures are also on file at the principal corporate trust
office of the Trustee; and
WHEREAS the Company and the Trustee have executed and
delivered the Supplemental Indenture dated as of May 15, 1991, by
which the third paragraph of Section 1.02 of the Indenture was
amended to read as follows:
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"The term 'Board of Directors' shall mean the
Board of Directors of the Company or any committee of
the Board of Directors of the Company authorized, with
respect to any particular matter, to exercise the power
of the Board of Directors of the Company."; and
WHEREAS the Indenture provides for the issuance of bonds
thereunder in one or more series and the Company, by appropriate
corporate action in conformity with the terms of the Indenture,
has duly determined to create a series of bonds under the
Indenture to be designated as "5.40% Pollution Control Series due
January 1, 2024" (hereinafter sometimes referred to as the "new
Bonds"), each of which bonds shall also bear the descriptive
title "First Mortgage Bond", the bonds of such series to bear
interest at the annual rate and to mature on the date designated
in the title thereof; and
WHEREAS by a Plan of Merger dated June 11, 1959, effective
September 8, 1959, between The New York Trust Company and
Chemical Corn Exchange Bank, said The New York Trust Company was
merged into said Chemical Corn Exchange Bank which continued
under the name and style of Chemical Bank New York Trust Company;
and by a Plan of Merger dated November 26, 1968, effective
February 17, 1969, among Chemical New York Corporation, Chemical
Bank New York Trust Company and Chemical Bank, said Chemical Bank
New York Trust Company was merged into said Chemical Bank which
continued under the name and style of Chemical Bank; and by
virtue of said mergers Chemical Bank has become successor to The
New York Trust Company and Chemical Bank New York Trust Company,
as Trustee under the Indenture, and has become vested with all of
the title to the mortgaged property and trust estate; and with
the trusts, powers, discretions, immunities, privileges and all
other matters as were vested in said The New York Trust Company
and said Chemical Bank New York Trust Company under the
Indenture, with like effect as if originally named as Trustee
therein; and
WHEREAS each of the new Bonds is to be substantially in the
following form, with appropriate insertions and deletions, to
wit:
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[FORM OF NEW BOND]
GEORGIA POWER COMPANY
FIRST MORTGAGE BOND, 5.40% POLLUTION CONTROL SERIES
DUE JANUARY 1, 2024
No. _______________ $_______________
Georgia Power Company, a Georgia corporation (hereinafter
called the "Company"), for value received, hereby promises to pay
to NationsBank of Georgia, National Association, Atlanta, Georgia
(as trustee under a Trust Indenture dated as of January 1, 1994
of the Development Authority of Monroe County, relating to the
Revenue Bonds (hereinafter mentioned)), or registered assigns,
the principal sum of _____________________ Dollars on January 1,
2024, and to pay to the registered owner hereof interest on said
sum from the latest semi-annual interest payment date to which
interest has been paid on the bonds of this series preceding the
date hereof, unless the date hereof be an interest payment date
to which interest is being paid, in which case from the date
hereof, or unless the date hereof is prior to July 1, 1994, in
which case from January 15, 1994, at the rate per annum, until
the principal hereof shall have become due and payable, specified
in the title of this bond, payable on January 1 and July 1 in
each year.
The obligation of the Company to make payments with respect
to the principal of and premium, if any, and interest on bonds of
this series shall be fully or partially, as the case may be,
satisfied and discharged to the extent that, at any time that any
such payment shall be due, the Company shall have made payments
as required by the Company's Note dated February 10, 1994 issued
pursuant to Section 3.2 of the Loan Agreement dated as of
January 1, 1994 between the Development Authority of Monroe
County and the Company, relating to the Revenue Bonds
(hereinafter mentioned), sufficient to pay fully or partially the
then due principal of and premium, if any, and interest on the
Development Authority of Monroe County (Georgia) Pollution
Control Revenue Bonds (Georgia Power Company Plant Scherer
Project), First Series 1994 (hereinafter referred to as "Revenue
Bonds") or there shall be in the Bond Fund established pursuant
to the Trust Indenture dated as of January 1, 1994 of the
Development Authority of Monroe County to NationsBank of Georgia,
National Association, Atlanta, Georgia, as trustee, relating to
the Revenue Bonds (hereinafter referred to as the "Revenue
Indenture"), sufficient available funds to pay fully or partially
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<PAGE>
the then due principal of and premium, if any, and interest on
the Revenue Bonds.
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an
indenture of mortgage or deed of trust dated as of March 1, 1941
given by the Company to The New York Trust Company, to which
Chemical Bank is successor by merger (hereinafter sometimes
referred to as the "Trustee"), as Trustee, and indentures
supplemental thereto, to which indenture and indentures
supplemental thereto (hereinafter referred to collectively as the
"Indenture") reference is hereby made for a description of the
property mortgaged and pledged, the nature and extent of the
security and the rights, duties and immunities thereunder of the
Trustee and the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security. By the
terms of the Indenture the bonds to be secured thereby are
issuable in series which may vary as to date, amount, date of
maturity, rate of interest and in other respects as in the
Indenture provided.
Upon notice given by mailing the same, by first class mail
postage prepaid, not less than thirty nor more than forty-five
days prior to the date fixed for redemption to each registered
holder of a bond to be redeemed (in whole or in part) at the last
address of such holder appearing on the registry books, any or
all of the bonds of this series may be redeemed by the Company at
any time and from time to time by the payment of the principal
amount thereof and accrued interest thereon to the date fixed for
redemption, if redeemed by the operation of the improvement fund
or the replacement fund provisions of the Indenture or by the use
of proceeds of released property, as more fully set forth in the
Indenture.
In the manner provided in the Indenture, the bonds of this
series shall also be redeemable in whole, by payment of the
principal amount thereof plus accrued interest thereon to the
date fixed for redemption, upon receipt by the Trustee of a
written demand from the trustee under the Revenue Indenture
stating that the principal amount of all the Revenue Bonds then
outstanding under the Revenue Indenture has been declared
immediately due and payable pursuant to the provisions of
Section 8.02 of the Revenue Indenture. As provided in the
Indenture, the date fixed for such redemption may be not more
than 180 days after receipt by the Trustee of the aforesaid
written demand and shall be specified in a notice of redemption
given not more than 10 nor less than 5 days prior to the date so
fixed for such redemption. As in the Indenture provided, such
notice of redemption shall be rescinded and become null and void
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<PAGE>
for all purposes under the Indenture upon rescission of the
aforesaid written demand or the aforesaid declaration of maturity
under the Revenue Indenture, and thereupon no redemption of the
bonds of this series and no payments in respect thereof as
specified in such notice of redemption shall be effected or
required.
In the manner provided in the Indenture, the bonds of this
series are also redeemable in whole or in part upon receipt by
the Trustee of a written demand from the trustee under the
Revenue Indenture specifying a principal amount of Revenue Bonds
which have been called for redemption pursuant to the third
paragraph of Section 3.01 of the Revenue Indenture. As provided
in the Indenture, bonds of this series equal in principal amount
to the principal amount of such Revenue Bonds to be redeemed will
be redeemed on the date fixed for redemption of the Revenue Bonds
at the principal amount of such bonds of this series and accrued
interest thereon to the date fixed for redemption, together with
a premium equal to a percentage of the principal amount thereof
determined as set forth in the following tabulation:
If Redeemed During the Twelve Months'
Period Ending the Last Day of December
Regular
Redemption
Year Premium
1999 2%
2000 1%
and without premium if redeemed on or after January 1, 2001.
In case of certain defaults as specified in the Indenture,
the principal of this bond may be declared or may become due and
payable on the conditions, at the time, in the manner and with
the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this bond, or for any claim
based hereon, or otherwise in respect hereof or of the Indenture,
to or against any incorporator, stockholder, director or officer,
past, present or future, as such, of the Company, or of any
predecessor or successor company, either directly or through the
Company, or such predecessor or successor company, under any
constitution or statute or rule of law, or by the enforcement of
any assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors and officers being waived
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<PAGE>
and released by the holder and owner hereof by the acceptance of
this bond and being likewise waived and released by the terms of
the Indenture.
This bond is transferable by the registered owner hereof, in
person or by attorney duly authorized, at the principal corporate
trust office of the Trustee, in the Borough of Manhattan, The
City of New York, but only in the manner prescribed in the
Indenture, upon the surrender and cancellation of this bond, and
upon any such transfer a new registered bond or bonds, without
coupons, of the same series and maturity date and for the same
aggregate principal amount, in authorized denominations, will be
issued to the transferee in exchange herefor. The Company and
the Trustee may deem and treat the person in whose name this bond
is registered as the absolute owner for the purpose of receiving
payment of or on account of the principal, premium, if any, and
interest due hereon and for all other purposes. Registered bonds
of this series shall be exchangeable for registered bonds of
other authorized denominations having the same aggregate
principal amount, in the manner and upon the conditions
prescribed in the Indenture. However, notwithstanding the
provisions of the Indenture, no charge shall be made upon any
transfer or exchange of bonds of this series other than for any
tax or taxes or other governmental charge required to be paid by
the Company.
This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the
execution by the Trustee or its successor in trust under the
Indenture of the certificate hereon.
IN WITNESS WHEREOF, Georgia Power Company has caused this
bond to be executed in its name by its President or one of its
Vice Presidents by his signature or a facsimile thereof, and its
corporate seal or a facsimile thereof to be hereto affixed and
attested by its Secretary or one of its Assistant Secretaries by
his signature or a facsimile thereof.
Dated,
GEORGIA POWER COMPANY
By:__________________________
Attest:
__________________________
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<PAGE>
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By: _________________________
Authorized Officer
AND WHEREAS all acts and things necessary to make the new
Bonds of each series, when authenticated by the Trustee and
issued as in the Indenture and this Supplemental Indenture
provided, the valid, binding and legal obligations of the
Company, and to constitute the Indenture and this Supplemental
Indenture valid, binding and legal instruments for the security
thereof, have been done and performed, and the creation,
execution and delivery of the Indenture and this Supplemental
Indenture and the creation, execution and issue of bonds subject
to the terms hereof and of the Indenture, have in all respects
been duly authorized;
NOW, THEREFORE, in consideration of the premises, and of the
acceptance and purchase by the holders thereof of the bonds
issued and to be issued under the Indenture and of the sum of One
Dollar duly paid by the Trustee to the Company, and of other good
and valuable considerations, the receipt whereof is hereby
acknowledged, and for the purpose of further securing the due and
punctual payment of the principal of and premium, if any, and
interest on the bonds issued and now outstanding under the
Indenture, and the $28,065,000 principal amount of new Bonds
proposed to be issued and all other bonds which shall be issued
under the Indenture, or the Indenture as supplemented and
amended, and for the purpose of further securing the faithful
performance and observance of all covenants and conditions
therein and in any indenture supplemental thereto set forth, the
Company has given, granted, bargained, sold, transferred,
assigned, hypothecated, pledged, mortgaged, warranted, aliened
and conveyed and by these presents does give, grant, bargain,
sell, transfer, assign, hypothecate, pledge, mortgage, warrant,
alien and convey unto Chemical Bank, as Trustee, as provided in
the Indenture, and its successor or successors in the trust
thereby and hereby created, and to its or their assigns forever,
all the right, title and interest of the Company in and to all
premises, property, franchises and rights of every kind and
description, real, personal and mixed, tangible and intangible,
now owned or hereafter acquired by the Company (excepting,
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however, that which is by the Indenture expressly reserved from
the lien and effect thereof), including but not limited to the
property described in Exhibit "A" attached hereto and by this
reference made a part hereof; unless otherwise noted, such
property is located in the State of Georgia and unless otherwise
noted, references herein to a county or counties shall mean such
county or counties in the State of Georgia;
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in anywise appertaining to the
property, rights and franchises or any thereof, referred to in
the foregoing granting clauses, with the reversion and
reversions, remainder and remainders and (subject to the
provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now
has or may hereafter acquire in and to the aforesaid property,
rights and franchises and every part and parcel thereof.
TO HAVE AND TO HOLD all said property, rights and franchises
hereby conveyed, assigned, pledged or mortgaged, or intended so
to be, unto the Trustee, its successor or successors in trust,
and their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders of
all bonds and interest coupons now or hereafter issued under the
Indenture, as supplemented and amended, pursuant to the
provisions thereof, and for the enforcement of the payment of
said bonds and coupons when payable and for the performance of
and compliance with the covenants and conditions of the
Indenture, as supplemented and amended, without any preference,
distinction or priority as to lien or otherwise of any bond or
bonds over others by reason of the difference in time of the
actual issue, sale or negotiation thereof or for any other reason
whatsoever, except as otherwise expressly provided in the
Indenture, as supplemented and amended; and so that each and
every bond now or hereafter issued thereunder shall have the same
lien; and so that the principal of and premium, if any, and
interest on every such bond shall, subject to the terms thereof,
be equally and proportionately secured thereby and hereby, as if
it had been made, executed, delivered, sold and negotiated
simultaneously with the execution and delivery of the Original
Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured under the Indenture and hereunder are to be issued,
authenticated and delivered, and all said property, rights and
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franchises hereby and by the Indenture conveyed, assigned,
pledged or mortgaged, or intended so to be (including all the
right, title and interest of the Company in and to any and all
premises, property, franchises and rights of every kind and
description, real, personal and mixed, tangible and intangible,
thereafter acquired by the Company and whether or not
specifically described in the Original Indenture or in any
indenture supplemental thereto, except any therein expressly
excepted), are to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants,
agreements, trusts and uses and purposes expressed in the
Indenture and herein, and it is hereby agreed as follows:
SECTION 1. There is hereby created a series of bonds
designated as hereinabove in the fourth Whereas clause set forth,
each of which shall contain suitable provisions with respect to
the matters hereinafter in this Section specified, and the form
thereof shall be substantially as hereinbefore set forth. New
Bonds shall mature on the date specified in the title thereof,
and the definitive bonds of such series may be issued only as
registered bonds without coupons. New Bonds shall be in such
denominations as the Board of Directors shall approve, and
execution and delivery to the Trustee for authentication shall be
conclusive evidence of such approval. The serial numbers of new
Bonds shall be such as may be approved by any officer of the
Company, the execution thereof by any such officer to be
conclusive evidence of such approval.
New Bonds, until the principal thereof shall have become due
and payable, shall bear interest at the annual rate designated in
the title thereof, payable semi-annually on January 1 and July 1
in each year, commencing July 1, 1994. New Bonds shall be dated
the date of authentication.
The principal of and premium, if any, and interest on the
new Bonds shall be payable in any coin or currency of the United
States of America which at the time of payment is legal tender
for public and private debts, at the office or agency of the
Company in the Borough of Manhattan, The City of New York,
designated for that purpose.
New Bonds may be transferred at the principal corporate
trust office of the Trustee, in the Borough of Manhattan, The
City of New York. New Bonds shall be exchangeable for other
bonds of the same series, in the manner and upon the conditions
prescribed in the Indenture, upon the surrender of such new Bonds
at said principal corporate trust office of the Trustee.
However, notwithstanding the provisions of Section 2.05 of the
Indenture, no charge shall be made upon any transfer or exchange
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<PAGE>
of new Bonds other than for any tax or taxes or other
governmental charge required to be paid by the Company.
Any or all of the new Bonds shall be redeemable at any time
and from time to time, prior to maturity, upon notice given by
mailing the same, by first class mail postage prepaid, not less
than thirty nor more than forty-five days prior to the date fixed
for redemption to each registered holder of a bond to be redeemed
(in whole or in part) at the last address of such holder
appearing on the registry books, at the principal amount thereof
and accrued interest thereon, if any, to the date fixed for
redemption, if redeemed by the operation of Section 4 of the
Supplemental Indenture dated as of November 1, 1962 or of the
improvement fund provisions of any supplemental indenture or by
the use of proceeds of released property.
SECTION 2. The obligation of the Company to make payments
with respect to the principal of and premium, if any, and
interest on the new Bonds shall be fully or partially, as the
case may be, satisfied and discharged, to the extent that, at the
time that any such payment shall be due, the Company shall have
made payments as required by the Company's Note dated
February 10, 1994 issued pursuant to Section 3.2 of the Loan
Agreement dated as of January 1, 1994 between the Development
Authority of Monroe County and the Company, relating to the
Monroe Bonds (hereinafter defined), sufficient to pay fully or
partially the then due principal of and premium, if any, and
interest on the Development Authority of Monroe County (Georgia)
Pollution Control Revenue Bonds (Georgia Power Company Plant
Scherer Project), First Series 1994 (hereinafter referred to as
the "Monroe Bonds") or there shall be in the related Bond Fund
established pursuant to the Trust Indenture dated as of
January 1, 1994 of the Development Authority of Monroe County to
NationsBank of Georgia, National Association, Atlanta, Georgia,
as trustee, relating to the Monroe Bonds (hereinafter referred to
as the "Monroe Indenture"), sufficient available funds to pay
fully or partially the then due principal of and premium, if any,
and interest on the Monroe Bonds. The Trustee may conclusively
presume that the obligation of the Company to make payments with
respect to the principal of and premium, if any, and interest on
the new Bonds shall have been fully satisfied and discharged
unless and until the Trustee shall have received a written notice
from the trustee under the Monroe Indenture stating (i) that
timely payment of principal of or premium, if any, or interest on
the Monroe Bonds has not been made, (ii) that there are not
sufficient available funds in such Bond Fund to make such payment
and (iii) the amount of funds required to make such payment.
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In addition to the redemption as provided in Section 1
hereof, the new Bonds shall also be redeemable in whole upon
receipt by the Trustee of a written demand for the redemption of
the new Bonds (hereinafter called "Redemption Demand") from the
trustee under the Monroe Indenture stating that the principal
amount of all the Monroe Bonds then outstanding under the Monroe
Indenture has been declared immediately due and payable pursuant
to the provisions of Section 8.02 of the Monroe Indenture,
specifying the date from which unpaid interest on the Monroe
Bonds has then accrued and stating that such declaration of
maturity has not been rescinded. The Trustee shall within 10
days of receiving the Redemption Demand mail a copy thereof to
the Company stamped or otherwise marked to indicate the date of
receipt by the Trustee. The Company shall fix a redemption date
for the redemption so demanded (herein called the "Demand
Redemption") and shall mail to the Trustee notice of such date at
least 30 days prior thereto. The date fixed for Demand
Redemption may be any day not more than 180 days after receipt by
the Trustee of the Redemption Demand. If the Trustee does not
receive such notice from the Company within 150 days after
receipt by the Trustee of the Redemption Demand, the date for
Demand Redemption shall be deemed fixed at the 180th day after
such receipt. The Trustee shall mail notice of the date fixed
for Demand Redemption (hereinafter called the "Demand Redemption
Notice") to the trustee under the Monroe Indenture (and the
registered holders of the new Bonds if other than said trustee)
not more than 10 nor less than 5 days prior to the date fixed for
Demand Redemption, provided, however, that the Trustee shall mail
no Demand Redemption Notice (and no Demand Redemption shall be
made) if prior to the mailing of the Demand Redemption Notice the
Trustee shall have received written notice of rescission of the
Redemption Demand from the trustee under the Monroe Indenture.
Demand Redemption of the new Bonds shall be at the principal
amount thereof, plus accrued interest thereon to the date fixed
for redemption, and such amount shall become and be due and
payable on the date fixed for Demand Redemption as above
provided. Anything in this paragraph contained to the contrary
notwithstanding, if, after mailing of the Demand Redemption
Notice and prior to the date fixed for Demand Redemption, the
Trustee shall have been advised in writing by the trustee under
the Monroe Indenture that the Redemption Demand has been
rescinded, the Demand Redemption Notice shall thereupon, without
further act of the Trustee or the Company, be rescinded and
become null and void for all purposes hereunder and no redemption
of the new Bonds and no payments in respect thereof as specified
in the Demand Redemption Notice shall be effected or required.
The new Bonds shall also be redeemable in whole at any time,
or in part from time to time (hereinafter called the "Regular
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<PAGE>
Redemption"), upon receipt by the Trustee of a written demand
(hereinafter referred to as the "Regular Redemption Demand") from
the trustee under the Monroe Indenture stating: (1) the
principal amount of Monroe Bonds to be redeemed pursuant to the
third paragraph of Section 3.01 of the Monroe Indenture; (2) the
date of such redemption and that notice thereof has been given as
required by the Monroe Indenture; (3) that the Trustee shall call
for redemption on the stated date fixed for redemption of the
Monroe Bonds a principal amount of the new Bonds equal to the
principal amount of Monroe Bonds to be redeemed; and (4) that the
trustee under the Monroe Indenture, as holder of all the new
Bonds then outstanding, waives notice of such redemption. The
Trustee may conclusively presume the statements contained in the
Regular Redemption Demand to be correct. Regular Redemption of
the new Bonds shall be at the principal amount thereof and
accrued interest thereon to the date fixed for redemption,
together with a premium equal to a percentage of the principal
amount thereof determined as set forth in the tabulation
appearing in the form of the bond hereinbefore set forth, and
such amount shall become and be due and payable, subject to the
first paragraph of this Section 2, on the date fixed for such
Regular Redemption, which shall be the date specified pursuant to
item (2) of the Regular Redemption Demand as above provided.
SECTION 3. The Company covenants that the provisions of
Section 4 of the Supplemental Indenture dated as of November 1,
1962, shall be in full force and effect so long as any new Bonds
shall be outstanding under the Indenture.
SECTION 4. As supplemented by this Supplemental Indenture,
the Indenture is in all respects ratified and confirmed, and the
Indenture and this Supplemental Indenture shall be read, taken
and construed as one and the same instrument.
SECTION 5. Nothing in this Supplemental Indenture contained
shall, or shall be construed to, confer upon any person other
than a holder of bonds issued under the Indenture, as
supplemented and amended, the Company and the Trustee any right
or interest to avail himself of any benefit under any provision
of the Indenture or of this Supplemental Indenture.
SECTION 6. The Trustee assumes no responsibility for or in
respect of the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Company or for or in
respect of the recitals and statements contained herein, all of
which recitals and statements are made solely by the Company.
SECTION 7. This Supplemental Indenture may be executed in
several counterparts and all such counterparts executed and
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<PAGE>
delivered, each as an original, shall constitute but one and the
same instrument.
SECTION 8. Although this Supplemental Indenture, for
convenience and for the purposes of reference, is dated as of the
day and year first above written, the actual dates of execution
by the Company and the Trustee are as indicated by their
respective acknowledgments hereto annexed.
IN WITNESS WHEREOF, said Georgia Power Company has caused
this Supplemental Indenture to be executed in its corporate name
by its President or one of its Vice Presidents and its corporate
seal to be hereunto affixed and to be attested by its Secretary
or one of its Assistant Secretaries, and said Chemical Bank, to
evidence its acceptance hereof, has caused this Supplemental
Indenture to be executed in its corporate name by one of its Vice
Presidents, Senior Trust Officers or Trust Officers and its
corporate seal to be hereunto affixed and to be attested by one
of its Senior Trust Officers, Trust Officers, Assistant Trust
Officers or Assistant Secretaries, in several counterparts, all
as of the day and year first above written.
GEORGIA POWER COMPANY
By:_________________________
Vice President
Attest:
________________________
Assistant Secretary
Signed, sealed and delivered this
7th day of February, 1994 by Georgia
Power Company in the County of
Fulton, State of Georgia, in the
presence of
________________________
Unofficial Witness
________________________
Notary Public, DeKalb County, Georgia
My Commission Expires October 13, 1997
(signatures continued on next page)
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<PAGE>
CHEMICAL BANK
By:___________________________
Vice President
Attest:
_______________________
Senior Trust Officer
Signed, sealed and delivered
this 8th day of February, 1994
by Chemical Bank in the County
of New York, State of New York,
in the presence of
_______________________
Unofficial Witness
_______________________
ANNABELLE DeLUCA
Notary Public, State of New York
No. 01DE5013759
Qualified in Kings County
Certificate filed in New York County
Commission Expires July 15, 1995
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<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 7th day of February, 1994, personally appeared before
me Nancy S. Landers, a Notary Public in and for the State and
County aforesaid, Jane Genske, who made oath and said that she
was present and saw the corporate seal of Georgia Power Company
affixed to the above written instrument, that she saw Judy M.
Anderson, Vice President, with Susan M. Carter, Assistant
Secretary, known to her to be such officers of said corporation
respectively, attest the same, and that she, deponent, with
Nancy S. Landers, witnessed the execution and delivery of the
said instrument as the free act and deed of said Georgia Power
Company.
Subscribed and sworn to )
before me this 7th day of )
February, 1994 ) _____________________________
______________________________
Notary Public, DeKalb County, Georgia
My Commission Expires October 13, 1997
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<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 8th day of February, 1994, personally appeared before
me Annabelle DeLuca, a Notary Public in and for the State and
County aforesaid, R. Richards, who made oath and said that she
was present and saw the corporate seal of Chemical Bank affixed
to the above written instrument, that she saw P. J. Gilkeson,
Vice President, with P. Morabito, Senior Trust Officer, known to
her to be such officers of said corporation respectively, attest
the same, and that she, deponent, with Annabelle DeLuca,
witnessed the execution and delivery of the said instrument as
the free act and deed of said Chemical Bank.
Subscribed and sworn to )
before me this 8th day of )
February, 1994 ) _____________________________
_______________________________
ANNABELLE DeLUCA
Notary Public, State of New York
No. 01DE5013759
Qualified in Kings County
Certificate filed in New York County
Commission Expires July 15, 1995
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<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 7th day of February, in the year one thousand nine
hundred and ninety-four, before me personally came Judy M.
Anderson, to me known, who, being by me duly sworn, did depose
and say that she resides at 199 14th Street, N.E., Atlanta,
Georgia; that she is a Vice President of Georgia Power Company,
one of the corporations described in and which executed the
foregoing instrument; that she knows the seal of said
corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by order of the Board of
Directors of said corporation; and that she signed her name
thereto by like order.
_________________________
Notary Public, DeKalb
County, Georgia
My Commission Expires
October 13, 1997
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<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 8th day of February, in the year one thousand nine
hundred and ninety-four, before me personally came P. J.
Gilkeson, to me known, who, being by me duly sworn, did depose
and say that he resides at 452 Delafield Avenue, Staten Island,
New York; that he is a Vice President of Chemical Bank, one of
the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
____________________________
ANNABELLE DeLUCA
Notary Public, State of
New York
No. 01DE5013759
Qualified in Kings County
Certificate filed in New
York County
Commission Expires
July 15, 1995
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<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 7th day of February, 1994, before me appeared Judy M.
Anderson, to me personally known, who, being by me duly sworn,
did say that she is a Vice President of Georgia Power Company,
and that the seal affixed to said instrument is the corporate
seal of said corporation and that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of
Directors, and that said Judy M. Anderson acknowledged said
instrument to be the free act and deed of said corporation.
Given under my hand this 7th day of February, 1994.
________________________
Notary Public, DeKalb
County, Georgia
My Commission Expires
October 13, 1997
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<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 8th day of February, 1994, before me appeared P. J.
Gilkeson, to me personally known, who, being by me duly sworn,
did say that he is a Vice President of Chemical Bank, and that
the seal affixed to said instrument is the corporate seal of said
corporation and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of
Directors, and that said P. J. Gilkeson acknowledged said
instrument to be the free act and deed of said corporation.
Given under my hand this 8th day of February, 1994.
_________________________
ANNABELLE DeLUCA
Notary Public, State of
New York
No. 01DE5013759
Qualified in Kings County
Certificate filed in New
York County
Commission Expires
July 15, 1995
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EXHIBIT D
TROUTMAN SANDERS
600 PEACHTREE STREET, SUITE 5200
ATLANTA, GEORGIA 30308-2216
(404) 885-3000
February 11, 1994
Securities and Exchange Commission
Washington, D.C. 20549
Re: Statement on Form U-1 of
Georgia Power Company
(herein called the "Company")
File No. 70-7832
Ladies and Gentlemen:
We have read the statement on Form U-1, as amended, referred
to above and are furnishing this opinion with respect to the
transactions described particularly in Amendment No. 11 (Post-
Effective No. 9) to such statement relating to the issuance of
the Revenue Bonds (as defined therein).
We are of the opinion that:
(a) the Company is validly organized and duly existing as a
corporation under the laws of the State of Georgia;
(b) all State laws applicable to such transactions have
been complied with;
(c) the Collateral Bonds and the Company's obligations with
respect to the Revenue Bonds are valid and binding
obligations of the Company in accordance with their
terms; and
(d) the consummation of such transactions did not violate
the legal rights of the holders of any securities
issued by the Company or any associate company thereof.
We hereby give our written consent to the use of this
opinion in connection with the above-mentioned statement on Form
U-1 and to the filing thereof with the Commission at the time of
the filing by the Company of its certificate pursuant to Rule 24.
Very truly yours,
/s/Troutman Sanders
<PAGE>
