CERTIFICATE OF NOTIFICATION
Filed by
GEORGIA POWER COMPANY
Pursuant to orders of the Securities and Exchange Commission dated August 24,
1994, and October 17, 1994, in the matter of File No. 70-8443.
- - - - - - - - - -
Georgia Power Company (the "Company") hereby certifies to said
Commission, pursuant to Rule 24, as follows:
1. A Loan Agreement dated as of July 1, 1995 was made and entered into
by and between the Company and the Development Authority of Monroe
County (the "Monroe Authority"), relating to $45,000,000 aggregate
principal amount of the Monroe Authority's Pollution Control
Revenue Bonds (Georgia Power Company Plant Scherer Project), First
Series 1995, and all transactions relating thereto (including the
issuance by the Company of its promissory note dated July 13, 1995
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 orders with respect thereto.
2. A Loan Agreement dated as of July 1, 1995 was made and entered into
by and between the Company and the Monroe Authority relating to
$40,000,000 aggregate principal amount of the Monroe Authority's
Pollution Control Revenue Bonds (Georgia Power Company Plant
Scherer Project), Second Series 1995, and all transactions relating
thereto (including the issuance by the Company of its promissory
note dated July 13, 1995 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 orders with
respect thereto.
3. The issuance and delivery by the Company of $85,000,000 aggregate
principal amount of First Mortgage Bonds, consisting of $45,000,000
principal amount of First Pollution Control Series due July 1,
2025, and $40,000,000 principal amount of Second Pollution Control
Series due July 1, 2025 (collectively, the "Collateral Bonds"),
pursuant to the Supplemental Indenture dated as of July 1, 1995,
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 orders with
respect thereto.
4. Filed herewith are the following exhibits:
Exhibit A - Copy of Loan Agreement, dated as of July
1, 1995, between the Company and the Monroe
Authority relating to the First Series 1995
Pollution Control Revenue Bonds.
Exhibit B - Copy of Loan Agreement, dated as of July
1, 1995, between the Company and the Monroe
Authority relating to the Second Series 1995
Pollution Control Revenue Bonds.
Exhibit C - Copy of Trust Indenture, dated as of July
1, 1995, of the Monroe Authority to Bank
South, as Trustee, relating to the First
Series 1995 Pollution Control Revenue Bonds.
Exhibit D - Copy of Trust Indenture, dated as of July
1, 1995, of the Monroe Authority to Bank
South, as Trustee, relating to the Second
Series 1995 Pollution Control Revenue Bonds.
Exhibit E - Copy of Supplemental Indenture, dated as
of July 1, 1995, between the Company and
Chemical Bank, as Trustee, relating to the
Collateral Bonds.
Exhibit F - Opinion of Troutman Sanders LLP, dated July
21, 1995.
Dated July 21, 1995 GEORGIA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
EXHIBIT A
DEVELOPMENT AUTHORITY OF MONROE COUNTY
and
GEORGIA POWER COMPANY
LOAN AGREEMENT
Dated as of July 1, 1995
Relating to
$45,000,000
Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
First Series 1995<PAGE>
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 the Bonds . . . . . . . . . . . . . 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT . . . . 2
SECTION 3.1. Loan by Issuer . . . . . . . . . . . . . . . . 2
SECTION 3.2. Delivery of Note by Company; Other Amounts
Payable . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.3. Obligation of the Company Unconditional . . . . 3
SECTION 3.4. First Mortgage Bonds . . . . . . . . . . . . . 3
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, the Agreement and the First
Mortgage Bonds . . . . . . . . . . . . . . . . 3
SECTION 3.6. Provision of Credit Agreement. . . . . . . . 4
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . . . 4
SECTION 4.2. Indemnity Against Claims . . . . . . . . . . . 4
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted . . 5
SECTION 4.4. Annual Statement . . . . . . . . . . . . . . . 5
SECTION 4.5. Further Assurances and Corrective Instruments . 5
SECTION 4.6. Maintenance of Project by Company . . . . . . . 6
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . . . 6
SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . . . 6
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ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . 7
SECTION 5.2. Remedies on Default . . . . . . . . . . . . . . 8
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 . . . . . . . . . . . . 9
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . . . 9
SECTION 6.4. Severability . . . . . . . . . . . . . . . . . 10
SECTION 6.5. Amendments . . . . . . . . . . . . . . . . . . 10
SECTION 6.6. Execution in Counterparts . . . . . . . . . . . 10
SECTION 6.7. Applicable Law . . . . . . . . . . . . . . . . 10
SECTION 6.8. Captions . . . . . . . . . . . . . . . . . . . 10
SECTION 6.9. Other Financing . . . . . . . . . . . . . . . . 10
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LOAN AGREEMENT dated as of July 1, 1995 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 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
Note (as 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
"Bondholder", "Bonds", "Business Day", "Company Indenture",
"Credit Agreement", "First Mortgage Bonds", "Government
Obligations", "Refunded Bonds", "Remarketing Agent" and
"Trustee" have the same meanings given and assigned to such words
in Article I of the Indenture (as hereinafter defined).
"Plans" and "Project" have the same meanings given and
assigned to such words in Article I of the Original Agreement (as
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.
"Indenture" means the Trust Indenture dated as of July 1,
1995, relating to Pollution Control Revenue Bonds (Georgia Power
Company Plant Scherer Project), First Series 1995, between the
Issuer and Bank South, 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.<PAGE>
"Note" means the non-negotiable promissory note 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
September 1, 1985 between the Issuer and the Company, delivered
in connection with the issuance of the Refunded Bonds.
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 the Bonds. In order to provide
funds for the purpose set forth in Section 3.1 hereof, the Issuer
agrees that it will issue and deliver the Bonds to the purchasers
thereof at a price of par 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.
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 in order to refund the Refunded
Bonds. The Company hereby agrees to cause the proceeds of the
Bonds to be applied exclusively to such purpose and to cause the
redemption of the Refunded Bonds to be effected within 90 days
after the date of initial issuance of the Bonds.
SECTION 3.2. Delivery of Note 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
the Note in a principal amount equal to the aggregate principal
amount of the Bonds and providing for payments which correspond
in time and amount with payments due on the Bonds. The Note
shall be dated the date of the initial authentication of, and
mature on the same maturity date as, the Bonds. If (i) on the
date any payments on the Bonds are due there are any available
moneys on deposit with the Trustee which are not being held for
the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are
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required to be purchased pursuant to the Bonds or Article III of
the Indenture, there are available moneys on deposit with the
Trustee held for the payment of the purchase price which are not
being held for the payment of Bonds which have not been presented
for payment, then, in each case, such moneys shall be credited
against the payment then due under the Note, 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, and (ii) 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
Note and to perform and observe the other agreements on its part
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 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 Note and as provided in Section 3.2 hereof.
SECTION 3.4. First Mortgage Bonds. Concurrently with the
Issuer's delivery of the 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 the Bonds and having the
same stated rate or rates of interest and the same maturity date
as the Bonds.
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, 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 Note and all payments thereunder, (ii) this Agreement and
all moneys receivable hereunder (except for payments under
-3-<PAGE>
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.
SECTION 3.6. Provision of Credit Agreement. On or before
the date of initial issuance of the Bonds, the Company shall
enter into the Credit Agreement for the purpose of assuring that
the Company will have a source of funds available, if needed, to
perform its obligations under the Note to provide any funds
necessary to purchase Bonds which have been tendered for purchase
but not remarketed. The Company shall be under no obligation to
maintain the Credit Agreement or any similar liquidity agreement
in place during the term of the Bonds. Nonetheless, the Company
hereby agrees to notify the Trustee and the Remarketing Agent in
writing at least 20 Business Days prior to any termination of the
Credit Agreement at the request of the Company.
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 bonds issued
under the Company Indenture, 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 Note or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the
Issuer under the Note 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
-4-<PAGE>
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 Note and is a
Georgia corporation or is qualified to do business in Georgia as
a 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.
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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 (other
than a purchase pursuant to tenders as provided in the form of
Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days prior to
the day on which the Trustee is required to give notice (if any)
thereof pursuant to the Indenture, 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; and
(c) in the case of a redemption of Bonds, directions
to mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the
Trustee shall, if available moneys on deposit with the Trustee
are insufficient to purchase the principal amount of Bonds
specified in (a) above, be accompanied by a deposit with the
Trustee of cash or Government Obligations sufficient, together
with other available moneys on deposit with the Trustee, 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 direct the taking of any action or the making of any
investment or use of the proceeds of the Bonds or any other
moneys, 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.
-6-<PAGE>
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 Note which failure, in
the case of such amounts in respect of interest on any Bond,
continues for five days, 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 90 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 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
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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.
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 Note 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 deposited with the Trustee 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.
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SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Note 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 Note 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.
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 Note
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 3350 Cumberland Circle, Suite 10-681, Atlanta,
Georgia 30339, 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
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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. 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.
SECTION 6.6. 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 6.7. Applicable Law. This Agreement and the Note
shall be governed by and construed in accordance with the laws of
the State of Georgia.
SECTION 6.8. 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 6.9. 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.
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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
[SEAL] By: /s/James A. Vaughn
Chairman
ATTEST:
/s/Marvin T. Carr, Jr.
Secretary
GEORGIA POWER COMPANY
[SEAL] By: /s/Judy M. Anderson
Vice President
ATTEST:
/s/Wayne Boston
Assistant Secretary<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 FORTY-FIVE MILLION DOLLARS ($45,000,000) together with
interest on the unpaid principal balance thereof from the date
hereof until Georgia's obligations with respect to the payment of
such sum shall be discharged at the rate or rates 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. Georgia further promises
to pay the purchase price of such Bonds as hereinbelow provided.
This Note is issued to evidence 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 July 1, 1995, pursuant to which
the Authority has loaned to Georgia the proceeds of the sale of
the Authority's $45,000,000 of Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project), First Series 1995
(the "Bonds"). This Note (together with the Agreement) has been
assigned to Bank South (the "Trustee"), acting pursuant to a
trust indenture dated as of July 1, 1995 (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. The Bonds are dated and bear interest in accordance with
the provisions of the Indenture, and mature on July 1, 2025. 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 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, and the
purchase price of Bonds required to be purchased under the
Indenture. If (i) on the date any payments on the Bonds are due<PAGE>
there are any available moneys on deposit with the Trustee which
are not being held for the payment of Bonds due and payable but
which have not been presented for payment, or (ii) on any date on
which Bonds are required to be purchased pursuant to the Bonds or
Article III of the Indenture, there are available moneys on
deposit with the Trustee held for the payment of the purchase
price which are not being held for the payment of Bonds which
have not been presented for payment, then, in each case, 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.<PAGE>
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
By:
Attest: <PAGE>
ASSIGNMENT
Pay to the order of Bank South, as assignee of the
Development Authority of Monroe County under the Trust Indenture,
dated as of July 1, 1995, between the Development Authority of
Monroe County and Bank South, as Trustee, securing the payment of
Development Authority of Monroe County (Georgia) Pollution
Control Revenue Bonds (Georgia Power Company Plant Scherer
Project), First Series 1995, in the original principal amount of
$45,000,000.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
Chairman<PAGE>
EXHIBIT B
DEVELOPMENT AUTHORITY OF MONROE COUNTY
and
GEORGIA POWER COMPANY
LOAN AGREEMENT
Dated as of July 1, 1995
Relating to
$40,000,000
Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
Second Series 1995<PAGE>
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 the Bonds . . . . . . . . . . . . . 2
ARTICLE III
LOAN BY ISSUER; PROVISIONS FOR PAYMENT . . . . 2
SECTION 3.1. Loan by Issuer . . . . . . . . . . . . . . . . 2
SECTION 3.2. Delivery of Note by Company; Other Amounts
Payable . . . . . . . . . . . . . . . . . . . . 2
SECTION 3.3. Obligation of the Company Unconditional . . . . 3
SECTION 3.4. First Mortgage Bonds . . . . . . . . . . . . . 3
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, the Agreement and the First
Mortgage Bonds . . . . . . . . . . . . . . . . 3
SECTION 3.6. Provision of Credit Agreement. . . . . . . . 4
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1. Use of Project . . . . . . . . . . . . . . . . 4
SECTION 4.2. Indemnity Against Claims . . . . . . . . . . . 4
SECTION 4.3. The Company to Maintain Its Corporate Existence;
Conditions Under Which Exceptions Permitted . . 5
SECTION 4.4. Annual Statement . . . . . . . . . . . . . . . 5
SECTION 4.5. Further Assurances and Corrective Instruments . 5
SECTION 4.6. Maintenance of Project by Company . . . . . . . 6
SECTION 4.7. Redemption or Purchase of Bonds . . . . . . . . 6
SECTION 4.8. Non-Arbitrage Covenant . . . . . . . . . . . . 6
-i-<PAGE>
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.1. Events of Default . . . . . . . . . . . . . . . 7
SECTION 5.2. Remedies on Default . . . . . . . . . . . . . . 8
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 . . . . . . . . . . . . 9
SECTION 6.2. Notices . . . . . . . . . . . . . . . . . . . . 9
SECTION 6.3. Binding Effect . . . . . . . . . . . . . . . . 9
SECTION 6.4. Severability . . . . . . . . . . . . . . . . . 10
SECTION 6.5. Amendments . . . . . . . . . . . . . . . . . . 10
SECTION 6.6. Execution in Counterparts . . . . . . . . . . . 10
SECTION 6.7. Applicable Law . . . . . . . . . . . . . . . . 10
SECTION 6.8. Captions . . . . . . . . . . . . . . . . . . . 10
SECTION 6.9. Other Financing . . . . . . . . . . . . . . . . 10
-ii-<PAGE>
LOAN AGREEMENT dated as of July 1, 1995 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 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
Note (as 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
"Bondholder", "Bonds", "Business Day", "Company Indenture",
"Credit Agreement", "First Mortgage Bonds", "Government
Obligations", "Refunded Bonds", "Remarketing Agent" and
"Trustee" have the same meanings given and assigned to such words
in Article I of the Indenture (as hereinafter defined).
"Plans" and "Project" have the same meanings given and
assigned to such words in Article I of the Original Agreement (as
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.
"Indenture" means the Trust Indenture dated as of July 1,
1995, relating to Pollution Control Revenue Bonds (Georgia Power
Company Plant Scherer Project), Second Series 1995, between the
Issuer and Bank South, 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.<PAGE>
"Note" means the non-negotiable promissory note 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
September 1, 1985 between the Issuer and the Company, delivered
in connection with the issuance of the Refunded Bonds.
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 the Bonds. In order to provide
funds for the purpose set forth in Section 3.1 hereof, the Issuer
agrees that it will issue and deliver the Bonds to the purchasers
thereof at a price of par 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.
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 in order to refund the Refunded
Bonds. The Company hereby agrees to cause the proceeds of the
Bonds to be applied exclusively to such purpose and to cause the
redemption of the Refunded Bonds to be effected within 90 days
after the date of initial issuance of the Bonds.
SECTION 3.2. Delivery of Note 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
the Note in a principal amount equal to the aggregate principal
amount of the Bonds and providing for payments which correspond
in time and amount with payments due on the Bonds. The Note
shall be dated the date of the initial authentication of, and
mature on the same maturity date as, the Bonds. If (i) on the
date any payments on the Bonds are due there are any available
moneys on deposit with the Trustee which are not being held for
the payment of Bonds due and payable but which have not been
presented for payment, or (ii) on any date on which Bonds are
-2-<PAGE>
required to be purchased pursuant to the Bonds or Article III of
the Indenture, there are available moneys on deposit with the
Trustee held for the payment of the purchase price which are not
being held for the payment of Bonds which have not been presented
for payment, then, in each case, such moneys shall be credited
against the payment then due under the Note, 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, and (ii) 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
Note and to perform and observe the other agreements on its part
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 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 Note and as provided in Section 3.2 hereof.
SECTION 3.4. First Mortgage Bonds. Concurrently with the
Issuer's delivery of the 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 the Bonds and having the
same stated rate or rates of interest and the same maturity date
as the Bonds.
SECTION 3.5. Assignment and Pledge of Payments and Rights
Under the Note, 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 Note and all payments thereunder, (ii) this Agreement and
all moneys receivable hereunder (except for payments under
-3-<PAGE>
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.
SECTION 3.6. Provision of Credit Agreement. On or before
the date of initial issuance of the Bonds, the Company shall
enter into the Credit Agreement for the purpose of assuring that
the Company will have a source of funds available, if needed, to
perform its obligations under the Note to provide any funds
necessary to purchase Bonds which have been tendered for purchase
but not remarketed. The Company shall be under no obligation to
maintain the Credit Agreement or any similar liquidity agreement
in place during the term of the Bonds. Nonetheless, the Company
hereby agrees to notify the Trustee and the Remarketing Agent in
writing at least 20 Business Days prior to any termination of the
Credit Agreement at the request of the Company.
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 bonds issued
under the Company Indenture, 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 Note or hereunder, (b) any taxes, assessments,
impositions and other charges upon payments by the Company to the
Issuer under the Note 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
-4-<PAGE>
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 Note and is a
Georgia corporation or is qualified to do business in Georgia as
a 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.
-5-<PAGE>
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 (other
than a purchase pursuant to tenders as provided in the form of
Bonds or in lieu of redemption as provided in Section 3.07 of the
Indenture) of Bonds upon receipt, not less than ten days prior to
the day on which the Trustee is required to give notice (if any)
thereof pursuant to the Indenture, 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; and
(c) in the case of a redemption of Bonds, directions
to mail a notice of redemption.
In the case of a purchase of Bonds, the written notice to the
Trustee shall, if available moneys on deposit with the Trustee
are insufficient to purchase the principal amount of Bonds
specified in (a) above, be accompanied by a deposit with the
Trustee of cash or Government Obligations sufficient, together
with other available moneys on deposit with the Trustee, 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 direct the taking of any action or the making of any
investment or use of the proceeds of the Bonds or any other
moneys, 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.
-6-<PAGE>
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 Note which failure, in
the case of such amounts in respect of interest on any Bond,
continues for five days, 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 90 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 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
-7-<PAGE>
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.
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 Note 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 deposited with the Trustee 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.
-8-<PAGE>
SECTION 5.3. Agreement to Pay Attorneys' Fees and Expenses.
In the event the Company should breach any of the provisions of
the Note 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 Note 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.
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 Note
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 3350 Cumberland Circle, Suite 10-681, Atlanta,
Georgia 30339, 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
-9-<PAGE>
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. 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.
SECTION 6.6. 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 6.7. Applicable Law. This Agreement and the Note
shall be governed by and construed in accordance with the laws of
the State of Georgia.
SECTION 6.8. 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 6.9. 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.
-10-<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
[SEAL] By: /s/James A. Vaughn
Chairman
ATTEST:
/s/Marvin T. Carr, Jr.
Secretary
GEORGIA POWER COMPANY
[SEAL] By: /s/Judy M. Anderson
Vice President
ATTEST:
/s/Wayne Boston
Assistant Secretary<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 FORTY MILLION DOLLARS ($40,000,000) together with interest on
the unpaid principal balance thereof from the date hereof until
Georgia's obligations with respect to the payment of such sum
shall be discharged at the rate or rates 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. Georgia further promises to pay the
purchase price of such Bonds as hereinbelow provided.
This Note is issued to evidence 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 July 1, 1995, pursuant to which
the Authority has loaned to Georgia the proceeds of the sale of
the Authority's $40,000,000 of Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project), Second Series 1995
(the "Bonds"). This Note (together with the Agreement) has been
assigned to Bank South (the "Trustee"), acting pursuant to a
trust indenture dated as of July 1, 1995 (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. The Bonds are dated and bear interest in accordance with
the provisions of the Indenture, and mature on July 1, 2025. 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 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, and the
purchase price of Bonds required to be purchased under the
Indenture. If (i) on the date any payments on the Bonds are due<PAGE>
there are any available moneys on deposit with the Trustee which
are not being held for the payment of Bonds due and payable but
which have not been presented for payment, or (ii) on any date on
which Bonds are required to be purchased pursuant to the Bonds or
Article III of the Indenture, there are available moneys on
deposit with the Trustee held for the payment of the purchase
price which are not being held for the payment of Bonds which
have not been presented for payment, then, in each case, 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.<PAGE>
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
By:
Attest: <PAGE>
ASSIGNMENT
Pay to the order of Bank South, as assignee of the
Development Authority of Monroe County under the Trust Indenture,
dated as of July 1, 1995, between the Development Authority of
Monroe County and Bank South, as Trustee, securing the payment of
Development Authority of Monroe County (Georgia) Pollution
Control Revenue Bonds (Georgia Power Company Plant Scherer
Project), Second Series 1995, in the original principal amount of
$40,000,000.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
Chairman<PAGE>
EXHIBIT C
DEVELOPMENT AUTHORITY OF MONROE COUNTY
to
BANK SOUTH,
as Trustee
TRUST INDENTURE
Dated as of July 1, 1995
Relating to
$45,000,000
Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
First Series 1995<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions . . . . . . . . . . . . . . . . 3
Section 1.02. Rules of Construction . . . . . . . . . . . 8
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating . . . . . . 8
Section 2.02. Interest on the Bonds . . . . . . . . . . . 8
Section 2.03. Execution and Authentication . . . . . . . 16
Section 2.04. Bond Register . . . . . . . . . . . . . . . 17
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners . . . . . . . . . . . . . 17
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds . . . . . . . . . . . . . 18
Section 2.07. Cancellation of Bonds . . . . . . . . . . . 18
Section 2.08. Temporary Bonds . . . . . . . . . . . . . . 18
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee . . . . . . . . . . . . 19
Section 3.02. Redemption Dates . . . . . . . . . . . . . 19
Section 3.03. Selection of Bonds to Be Redeemed . . . . . 19
Section 3.04. Redemption Notices . . . . . . . . . . . . 19
Section 3.05. Payment of Bonds Called for Redemption . . 21
Section 3.06. Bonds Redeemed in Part . . . . . . . . . . 21
Section 3.07. Purchase of Bonds in Lieu of Redemption . . 21
Section 3.08. Disposition of Purchased Bonds . . . . . . 22
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds . . . . . . . . . . 24
Section 4.02. Payment of Bonds . . . . . . . . . . . . . 24
Section 4.03. Investments of Moneys . . . . . . . . . . . 25
Section 4.04. Moneys Held in Trust; Unclaimed Funds . . . 26
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System . . . . . . . . . . . . . 26
i<PAGE>
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds . . . . . . . . . . . . . 28
Section 6.02. Performance of Covenants; Issuer . . . . . 28
Section 6.03. Recording and Filing; Further Assurances . 29
Section 6.04. Tax Covenants . . . . . . . . . . . . . . . 29
Section 6.05. Rights Under Agreement . . . . . . . . . . 30
Section 6.06. Designation of Additional Paying Agents . . 30
Section 6.07. Existence of Issuer . . . . . . . . . . . . 30
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture . 30
Section 7.02. Application of Trust Money . . . . . . . . 32
Section 7.03. Repayment to Company . . . . . . . . . . . 32
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default . . . . . . . . . . . . . 32
Section 8.02. Acceleration . . . . . . . . . . . . . . . 32
Section 8.03. Other Remedies . . . . . . . . . . . . . . 33
Section 8.04. Legal Proceeding by Trustee . . . . . . . . 33
Section 8.05. Appointment of Receivers . . . . . . . . . 34
Section 8.06. Waiver of Past Defaults . . . . . . . . . . 34
Section 8.07. Control by Majority . . . . . . . . . . . . 35
Section 8.08. Limitation on Suits . . . . . . . . . . . . 35
Section 8.09. Rights of Holders to Receive Payment . . . 35
Section 8.10. Collection Suit by Trustee . . . . . . . . 36
Section 8.11. Trustee May File Proofs of Claim . . . . . 36
Section 8.12. Priorities . . . . . . . . . . . . . . . . 36
Section 8.13. Undertaking for Costs . . . . . . . . . . . 36
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts . . . . . . . . . 37
Section 9.02. Fees, Charges and Expenses of Trustee . . . 40
Section 9.03. Notice to Bondholders if an Event of Default
Occurs . . . . . . . . . . . . . . . . . . 40
Section 9.04. Intervention by Trustee . . . . . . . . . . 40
Section 9.05. Successor Trustee . . . . . . . . . . . . . 40
Section 9.06. Resignation by Trustee . . . . . . . . . . 41
Section 9.07. Removal of Trustee . . . . . . . . . . . . 41
Section 9.08. Appointment of Successor Trustee . . . . . 41
ii<PAGE>
Section 9.09. Concerning Any Successor Trustee . . . . . 41
Section 9.10. Successor Trustee as Bond Registrar and
Paying Agent . . . . . . . . . . . . . . . 42
Section 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company . . . . . 42
Section 9.12. No Transfer of Note or First Mortgage Bonds
Held by the Trustee; Exception . . . . . . 42
Section 9.13. Filing of Certain Continuation Statements . 43
Section 9.14 Duties of Remarketing Agent . . . . . . . . 43
Section 9.15 Eligibility of Remarketing Agent . . . . . 43
Section 9.16 Replacement of Remarketing Agent . . . . . 43
Section 9.17. Compensation of Remarketing Agent . . . . . 44
Section 9.18. Successor Remarketing Agent . . . . . . . . 44
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders . . . . . . 44
Section 10.02. With Consent of Bondholders . . . . . . . . 45
Section 10.03. Effect of Consents . . . . . . . . . . . . 46
Section 10.04. Notation on or Exchange of Bonds . . . . . 46
Section 10.05. Signing by Trustee of Amendments and
Supplements . . . . . . . . . . . . . . . . 46
Section 10.06. Company Consent Required . . . . . . . . . 46
Section 10.07. Notice to Bondholders . . . . . . . . . . . 46
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
OR FIRST MORTGAGE BOND
Section 11.01. Without Consent of Bondholders . . . . . . 46
Section 11.02. With Consent of Bondholders . . . . . . . . 47
Section 11.03. Consents by Trustee to Amendments or
Supplements . . . . . . . . . . . . . . . . 47
ARTICLE XII
VOTING OF FIRST MORTGAGE BOND
Section 12.01. Voting of Mortgage Bond Held by the
Trustee . . . . . . . . . . . . . . . . . . 47
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices . . . . . . . . . . . . . . . . . . 48
Section 13.02. Bondholders' Consents . . . . . . . . . . . 48
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent . . . . . . . . . . . . . . . 49
iii<PAGE>
Section 13.04. Limitation of Rights . . . . . . . . . . . 49
Section 13.05. Severability . . . . . . . . . . . . . . . 49
Section 13.06. Payments Due on Non-Business Days . . . . . 49
Section 13.07. Governing Law . . . . . . . . . . . . . . . 50
Section 13.08. Captions . . . . . . . . . . . . . . . . . 50
Section 13.09. No Liability of Officers . . . . . . . . . 50
Section 13.10. Counterparts . . . . . . . . . . . . . . . 50
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 51
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . Form of Bond
iv<PAGE>
TRUST INDENTURE
THIS INDENTURE made and entered into as of July 1, 1995, 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
BANK SOUTH, a Georgia banking corporation duly organized,
existing and authorized to accept and execute trusts of the
character herein set out under and by virtue of the laws of
Georgia, 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 July 1, 1995 (the
"Agreement") with Georgia Power Company (the "Company") providing
for the undertaking by the Issuer to loan amounts to the Company
in order 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 air and water
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),
First Series 1995, in the aggregate principal amount of
$45,000,000 (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 the Bonds, a non-negotiable
promissory note in a like principal amount bearing interest at
the rate or rates borne by the Bonds; and that as security for
its obligation to pay the promissory note the Company will
deliver to the Trustee, concurrently with the issuance of the
Bonds, first mortgage bonds issued under and secured by the
Company Indenture (as hereinafter defined) in accordance with
Section 3.4 of the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement and the issuance and sale
of the Bonds have been in all respects duly and validly
authorized by resolution duly adopted by the Issuer.
D. The Company has agreed to make payments on the
aforementioned promissory note to the Issuer in amounts
sufficient to pay the principal, purchase price, premium, if any,
and interest on the Bonds, all as hereinafter defined.<PAGE>
E. The Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof.
Accordingly, the Issuer and the Trustee agree as follows for
the benefit of each other and for the benefit of the holders of
the Bonds issued pursuant to this Indenture.
GRANTING CLAUSE
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 Bonds and the
Company's First Mortgage Bonds, First Pollution Control Series
due July 1, 2025; 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 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 interests of the Issuer in, to and under the Agreement
and all moneys receivable thereunder (except for Unassigned
Rights, as defined herein) 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
2<PAGE>
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
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 owners, from time to time, of said Bonds, or part
thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Inden-
ture, unless the context requires otherwise, the following terms
shall have the following meanings:
"Act" means the Development Authorities Law as set forth in
O.C.G.A. Section 36-62-1, et seq., as amended.
"Agreement" means the Loan Agreement dated as of July 1,
1995, between the Issuer and the Company, as amended and
supplemented from time to time.
"Beneficial Owner" means the purchaser of a beneficial
interest in the Bonds when the Bonds are held by the Securities
Depository in the Book-Entry System, and otherwise means a
Bondholder.
3<PAGE>
"Bondholder" or "holder" means the registered owner of any
Bond.
"Bonds" means the Pollution Control Revenue Bonds (Georgia
Power Company Plant Scherer Project), First Series 1995 issued by
the Issuer hereunder in the aggregate principal amount of
$45,000,000.
"Book-Entry System" means the system maintained by the
Securities Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which commercial banks in New York, New
York, Atlanta, Georgia, or the city in which the principal
corporate trust office of the Trustee is located, are authorized
by law to close or (iii) a day on which the New York Stock
Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended,
and the Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised
of Commercial Paper Periods, during which Commercial Paper Rates
are in effect.
"Commercial Paper Period" means, with respect to any Bond,
each period set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond
set under Section 2.02(a)(3).
"Company" means Georgia Power Company, a Georgia
corporation, and its successors and assigns, and any surviving,
resulting or transferee entity as provided in Section 4.3 of the
Agreement.
"Company Indenture" means the Indenture dated as of March 1,
1941 between the Company and Chemical Bank, as trustee, as
amended and supplemented from time to time.
"Credit Agreement" means the Revolving Credit and Term Loan
Letter dated as of July 13, 1995, between the Company and
Chemical Bank arranged by the Company pursuant to the provisions
of Section 3.6 of the Agreement, or any line of credit or similar
facility or facilities that the Company may enter into in
substitution or replacement of such Revolving Credit and Term
Loan Letter from time to time and that expressly provides that
funds obtained thereunder may be used only to pay the purchase
price (including accrued interest, if any) of Bonds.
"Daily Rate" means an interest rate on the Bonds set under
Section 2.02(a)(l).
4<PAGE>
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax
Counsel addressed to the Issuer and to the Trustee to the effect
that the action proposed to be taken is permitted by the laws of
the State and by this Indenture and will not adversely affect any
exclusion from gross income for federal income tax purposes of
interest on the Bonds.
"First Mortgage Bonds" means the First Mortgage Bonds, First
Pollution Control Series due July 1, 2025 of the Company issued
by the Company under the Company Indenture pursuant to Section
3.4 of the Agreement.
"Government Obligations" means (i) noncallable direct
obligations of the United States for which its full faith and
credit are pledged, (ii) noncallable obligations of a Person
controlled or supervised by and acting as an agency or instrumen-
tality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
of the United States, or (iii) securities or receipts evidencing
ownership interests in obligations or specified portions (such as
principal or interest) of obligations described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended
or supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"J.J. Kenny Index" means, as of any date, the index of 7-day
yields on high grade tax exempt municipal bonds as determined by
J.J. Kenny Co., Inc. or any successor thereto and published on
such date (or, if not published on said date, on the most recent
day prior thereto on which such index shall have been so
published).
"Long-Term Interest Rate" means an interest rate on the
Bonds set under Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section
2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as
set forth in Section 2.01.
"Mortgage Trustee" means the trustee or trustees at the time
serving as such under the Company Indenture.
5<PAGE>
"1954 Code" means the Internal Revenue Code of 1954, as
amended, and the Treasury regulations thereunder.
"Note" means the promissory note executed and delivered by
the Company concurrently with the issuance of the Bonds in a like
principal amount bearing interest at the rate or rates borne by
the Bonds.
"Opinion of Counsel" means a written opinion of counsel who
is acceptable to the Issuer and the Trustee. Such counsel may be
an employee of or counsel to the Issuer, the Trustee or the
Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by
counsel of nationally recognized standing in matters relating to
the exclusion of interest from gross income on obligations issued
by or on behalf of states and their political subdivisions.
The term "outstanding" when used with reference to Bonds, or
"Bonds outstanding" means all Bonds which have been authenticated
and delivered by the Trustee under this Indenture, except the
following:
a. Bonds canceled or purchased by or delivered to
the Trustee for cancellation.
b. Bonds that have become due (at maturity or on
redemption, acceleration or otherwise) and for the payment,
including interest accrued to the due date, of which
sufficient moneys are held by the Trustee.
c. Bonds deemed paid by Section 7.01.
d. Bonds in lieu of which others have been
authenticated under Section 2.05 (relating to registration
and exchange of Bonds) or Section 2.06 (relating to
mutilated, lost, stolen, destroyed or undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and
not delivered to the Trustee for payment are not outstanding, but
there will be outstanding Bonds authenticated and delivered in
lieu of such undelivered Bonds as provided in the second
paragraph of Section 2.06.
"Participant" means one of the entities which deposit
securities, directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or
political subdivision thereof.
6<PAGE>
"Plant" means the Scherer steam electric generating plant
located in Monroe County, Georgia.
The term "principal," when used with reference to any Bonds,
includes any premium payable on those Bonds.
"Prior Indenture" means the Trust Indenture dated as of
September 1, 1985, as supplemented and amended, between the
Issuer and the Refunded Bonds Trustee under which the Refunded
Bonds were issued.
"Project" means the air and water pollution control and
sewage and solid waste disposal facilities at the Plant financed
from the proceeds of the Refunded Bonds.
"Record Date" is defined in the form of the Bonds appearing
as Exhibit A hereto.
"Refunded Bonds" means $45,000,000 principal amount of the
Issuer's Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project), First Series 1985, being refunded by the
Bonds.
"Refunded Bonds Trustee" means NationsBank of Georgia,
National Association, Atlanta, Georgia, in its capacity as
trustee for the Refunded Bonds.
"Remarketing Agent" means J.P. Morgan Securities Inc. and
its successors under this Indenture.
"Responsible Officer" means any officer or trust officer of
the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Securities Depository" means The Depository Trust Company,
New York, New York or its nominee, and its successors and
assigns, or any successor appointed under Section 5.01.
"State" means the State of Georgia.
"Supplemental Indenture" means the Supplemental Indenture,
dated as of July 1, 1995, to the Company Indenture.
"Trustee" means the entity identified as such in the heading
of this Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under
Section 4.2 and Section 5.3 of the Agreement.
"Weekly Rate" means an interest rate on the Bonds set under
Section 2.02(a)(2).
7<PAGE>
Section 1.02. Rules of Construction. Unless the context
otherwise requires,
a. an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles,
b. references to Articles and Sections are to the
Articles and Sections of this Indenture, and
c. the singular form of any word, including the
terms defined in Section 1.01, includes the plural, and vice
versa, and a word of any gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds
shall be designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project), First Series 1995." The total principal
amount of Bonds that may be outstanding shall not exceed
$45,000,000. The Bonds shall be substantially in the form of
Exhibit A, which is part of this Indenture, in the denominations
provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and
delivery and shall mature, subject to prior redemption, on July
1, 2025. Bonds will be numbered as determined by the Trustee.
Upon the execution and delivery of this Indenture, the
Issuer will execute and deliver to the Trustee and the Trustee
will authenticate the Bonds and deliver them to the purchaser or
purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds
will be payable as provided in the Bonds and in this Section.
Interest on the Bonds will initially be payable at the Daily
Rate. The interest rate determination method may be changed by
the Company as described in paragraph (b) below. The methods of
determining the various interest rates are as provided in the
following paragraph (a).
(a) Interest Rate Determination Methods. While there
exists an Event of Default under the Indenture, the interest rate
on the Bonds will be the rate on the Bonds on the day before the
Event of Default occurred, except that if interest on any Bond
was then payable at a Commercial Paper Rate, the interest rate
for all Bonds then bearing interest at a Commercial Paper Rate
8<PAGE>
will be the highest Commercial Paper Rate then in effect for any
Bond.
(1) Daily Rate. When interest on the Bonds is
payable at a Daily Rate, the Remarketing Agent will set a
Daily Rate on or before 11:00 a.m., New York City time, on
each Business Day for that Business Day. Each Daily Rate
will be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell the
Bonds on the day the rate is set at their principal amount
(without regard to accrued interest). The Daily Rate for
any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is
payable at a Weekly Rate, the Remarketing Agent will set a
Weekly Rate on or before 5:00 p.m., New York City time, on
the last Business Day before the commencement of a period
during which the Bonds bear interest at a Weekly Rate and on
each Tuesday thereafter so long as interest on the Bonds is
to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each
Weekly Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination
of tax-exempt obligations comparable to the Bonds known by
the Remarketing Agent to have been priced or traded under
then prevailing market conditions) for the Remarketing Agent
to sell the Bonds on the date the rate is set at their
principal amount (without regard to accrued interest).
Thereafter, each Weekly Rate shall apply to (i) the period
beginning on the Wednesday after the Weekly Rate is set and
ending on the following Tuesday or, if earlier, ending on
the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the
period beginning on the effective date of the change to a
Weekly Rate and ending on the next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper
Mode, each Bond will bear interest during the Commercial
Paper Period for such Bond at the Commercial Paper Rate for
such Bond. Different Commercial Paper Periods may apply to
different Bonds at any time and from time to time. Except
as otherwise described in this subparagraph (3), the
Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later
than 12:15 p.m., New York City time, on the first day of
each Commercial Paper Period.
9<PAGE>
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial
Paper Period will be a period of at least 1 day and not
more than 365 days, determined by the Remarketing Agent
to be the period which, together with all other Commer-
cial Paper Periods for all Bonds then outstanding,
will, in the judgment of the Remarketing Agent, result
in the lowest overall interest expense on the Bonds
over the next 365 days; provided, however, that at any
time at which a Credit Agreement is in effect, the
Remarketing Agent shall not establish any Commercial
Paper Period which would end at a time when no Credit
Agreement will be in effect. Each Commercial Paper
Period will end on either the day before a Business Day
or on the day before the Maturity Date for such Bond.
However, any Bond purchased on behalf of the Company
and remaining unsold by the Remarketing Agent as of the
close of business on the first day of the Commercial
Paper Period for that Bond will have a Commercial Paper
Period of 1 day or, if that Commercial Paper Period
would not end on a day before a Business Day, a
Commercial Paper Period of the shortest possible
duration greater than 1 day ending on a day before a
Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into
account the following factors: (I) existing short-term
tax-exempt market rates and indices of such short-term
rates, (II) the existing market supply and demand for
short-term tax-exempt securities, (III) existing yield
curves for short-term and long-term tax-exempt
securities for obligations of credit quality comparable
to the Bonds, (IV) general economic conditions,
(V) industry economic and financial conditions that may
affect or be relevant to the Bonds, (VI) the number of
days in other Commercial Paper Periods applicable to
the Bonds and (VII) such other facts, circumstances and
conditions as the Remarketing Agent, in its sole
discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period
for each Bond shall be the minimum rate necessary (as
determined by the Remarketing Agent based on the
examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been
priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell such Bond
on the date and at the time of such determination at
its principal amount (without regard to accrued
interest).
10<PAGE>
(4) Long-Term Interest Rate. The Remarketing Agent
will set a Long-Term Interest Rate on a date no more than 15
days before the beginning of any period (a "Long-Term
Interest Rate Period") in which interest on any of the Bonds
will be payable at a Long-Term Interest Rate. The last day
of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section
2.02(b)(1). Each Long-Term Interest Rate will be the
minimum rate necessary (as determined by the Remarketing
Agent based on the examination of tax-exempt obligations
comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on
the effective date of the Long-Term Interest Rate at their
principal amount (without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest
Rates on the Bonds. If the appropriate interest rate or
Commercial Paper Period is not or cannot be determined for
whatever reason, the method of determining interest on the
Bonds shall be automatically converted to the Weekly Rate
(without the necessity of complying with the requirements of
Section 2.02(b)) and the interest rate shall be equal to the
J.J. Kenny Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the
nature of the Bonds as the Remarketing Agent, with the
consent of the Trustee, may have previously selected, until
such time as the method of determining interest on the Bonds
can be changed in accordance with Section 2.02(b); provided,
that if the Bonds are then in a Long-Term Interest Rate
Period, the Bonds shall bear interest at a Weekly Rate, but
only if a Favorable Opinion of Tax Counsel with respect to
the change to a Weekly Rate has been delivered to the
Trustee and the Issuer. If such Favorable Opinion of Tax
Counsel has not been delivered, the Bonds shall remain in a
Long-Term Interest Rate Period with an interest rate equal
to the interest rate for the prior Long-Term Interest Rate
Period and with a duration equal to the prior Long-Term
Interest Rate Period (or, if earlier, a Long-Term Interest
Rate Period ending on the day before the Maturity Date for
such Bond). The Trustee shall promptly notify the
Bondholders of any such automatic change as set forth in
Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such
Bonds to a Weekly Rate in accordance with this
Subsection (5), Bonds bearing interest at a Weekly Rate and
Bonds bearing interest at a Commercial Paper Rate, as
applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest
on the Bonds.
11<PAGE>
(b) (1) Change in Interest Rate Determination Method. The
Company may change the method of determining the interest rate on
the Bonds by notifying the Issuer, the Trustee, the Remarketing
Agent and, if a Book-Entry System is then in effect for the
Bonds, the Securities Depository. Such notice shall contain
(a) the effective date, (b) the proposed interest rate
determination method, and (c) if the change is to a Long-Term
Interest Rate or Rates, the last day of the first such Long-Term
Interest Rate Period and, at the option of the Company, the
effective date and last day of any successive Long-Term Interest
Rate Periods (which last day for each Long-Term Interest Rate
Period must be either the day before the Maturity Date for such
Bonds or a day which is before a Business Day and is at least 365
days after the effective date). The Long-Term Interest Rate
Period shall be the same duration for all of the Bonds. The
notice must be accompanied by a Favorable Opinion of Tax Counsel,
except as described below. If the Company's notice complies with
this paragraph, and if the Company shall deliver addressed to the
Trustee and the Issuer a confirming Opinion of Tax Counsel on the
effective date as specified in the notice, the interest rate on
the Bonds will be payable at the new rate on the effective date
specified in the notice until there is another change as provided
in this Section. Notwithstanding anything in this Indenture to
the contrary, the Company must deliver a Favorable Opinion of Tax
Counsel whenever there is a change from a period during which the
interest rate on the Bonds is set at intervals of 365 days or
less to a period during which the interest rate on the Bonds is
set at intervals in excess of 365 days, or vice versa.
If the Company wishes to designate successive Long-Term
Interest Rate Periods without specifying the effective dates and
last days as described in the preceding paragraph for the second
or any subsequent Long-Term Interest Rate Periods, it may do so
by following the same procedure as for a change in the interest
rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate
Period, the Company has not provided for the next interest rate
period, a new Long-Term Interest Rate Period of the same duration
will follow (or if shorter, a Long-Term Interest Rate Period
ending on the day before the Maturity Date for the Bonds).
When one Long-Term Interest Rate Period follows another, all
provisions of this Indenture applying to a change in the interest
rate determination method will apply, except:
(A) the redemption described under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in the Bonds;
(B) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if a new Long-Term Interest
12<PAGE>
Rate Period begins as a result of the Company failing to
provide for the next interest rate period; and
(C) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if the Company has
previously designated a series of successive Long-Term
Interest Rate Periods which, together with the current Long-
Term Interest Rate Period, are substantially equal in
length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate
Period in that series which applies to each such successive
Long-Term Interest Rate Period.
(2) Limitations. Any change in the method of determining
interest on the Bonds pursuant to paragraph (1) above must comply
with the following:
(i) the effective date of a change (or each effective
date in the case of a change from a Commercial Paper Mode)
shall be a Business Day which is at least 15 days (30 days
if a Long-Term Interest Rate is then in effect and the
effective date is before the day after the last day of a
Long-Term Interest Rate Period) after the twelfth Business
Day after receipt by the Trustee of the Company's notice of
the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after
the last day of the then current Long-Term Interest Rate
Period or, except as described in clause (iii) below, a day
on which the Bonds would otherwise be subject to redemption
under the paragraph "Optional Redemption at a Premium During
Long-Term Interest Rate Period" in Section 8 of the Bonds if
the change did not occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each
Long-Term Interest Rate Period must be the day after the
last day of the previous Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after
the last day of the Commercial Paper Mode or, as to any
Bond, the day after the last day of the Commercial Paper
Period then in effect (or to be in effect) with respect to
that Bond;
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the
change cannot be before such redemption date;
13<PAGE>
(vi) if a Long-Term Interest Rate or a Daily Rate is then
in effect, the effective date of any change cannot occur
during the period after a Record Date and to, but not
including, the related Interest Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods
of such duration that will, in the judgment of the
Remarketing Agent, best promote an orderly transition on the
effective date. After the receipt by the Trustee of the
Company's notice of such change, the day after the last day
of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The
Remarketing Agent shall promptly give written notice of each
such last date and each such effective date with respect to
each Bond to the Issuer, the Company, and the Trustee.
During any such transition period, Bonds bearing
interest at a Commercial Paper Rate shall be governed by the
provisions of this Indenture applicable to a Commercial
Paper Mode and Bonds bearing interest at a Daily Rate,
Weekly Rate or Long-Term Interest Rate, as applicable, shall
be governed by the provisions of this Indenture applicable
to such methods of determining interest on the Bonds.
(c) Notice to Bondholders of Change in Interest Rate
Determination Method. When a change in the interest rate
determination method is to be made, or upon commencement of a new
Long-Term Interest Rate Period, the Trustee will, upon notice
from the Company pursuant to Section 2.02(b), notify the
Bondholders by first class mail at least 15 days before the
effective date (or each effective date in the case of an
adjustment from a Commercial Paper Mode) of the change, except
that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the
effective date is on or before the end of the Long-Term Interest
Rate Period. The notice shall be effective when sent and shall
state:
(1) that the interest rate determination method will
be changed and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase
in lieu of redemption will result on the effective date of
the change as provided in the Bonds and all the information
required by this Indenture to be included in a notice of
redemption set forth in Section 3.04.
The information required in any notice pursuant to this
subsection (c) and the information referred to in any redemption
14<PAGE>
notice (including an Additional Notice) pursuant to Section 3.04
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
(d) Calculation of Interest. The Remarketing Agent shall
provide the Trustee and the Company with notice in writing or by
telephone (any such notice by telephone to be delivered to a
Responsible Officer of the Trustee) promptly confirmed by
facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which
interest on the Bonds was payable at a Daily Rate, of the
Daily Rate for each day in such month,
(2) on each day on which a Weekly Rate becomes
effective, of the Weekly Rate,
(3) on the first day of each Commercial Paper Period,
of the length thereof and the Commercial Paper Rate, and, if
there is more than one Commercial Paper Rate then in effect,
of the related applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest
Rate Period, of the Long-Term Interest Rate or Long-Term
Interest Rates set for that period and the related
applicable principal amounts, and
(5) on any Business Day preceding any redemption or
purchase date, any interest rate requested by the Trustee in
order to enable it to calculate the accrued interest, if
any, due on such redemption or purchase date.
Using the rates supplied by this notice, the Trustee will
calculate the interest payable on the Bonds. The Remarketing
Agent will inform the Trustee and the Company orally at the oral
request of either of them of any interest rate set by the
Remarketing Agent. The Trustee will confirm the effective
interest rate by telephone or in writing to any Bondholder who
requests it in any manner.
The setting of the rates and the determination of Commercial
Paper Periods by the Remarketing Agent and the calculation of
interest payable on the Bonds by the Trustee as provided in this
Indenture will be conclusive and binding on the Issuer, the
Company, the Trustee and the owners of the Bonds.
(e) Change in Rate Determination Method-Opinions of
Counsel. Notwithstanding any provision of this Section 2.02, no
change shall be made in the interest rate determination method at
the direction of the Company pursuant to Section 2.02(b)(1)
hereof if the Company shall fail to deliver a Favorable Opinion
15<PAGE>
of Tax Counsel and confirmation thereof required under
Section 2.02(b)(1). If the Trustee shall have sent any notice to
the Bondholders regarding a change in rate under Section 2.02(c),
then in the event of such failure to deliver such opinion or
confirmation, the Trustee shall promptly notify all Bondholders
of such failure.
(f) Notice to Bondholders of Voluntary Termination of
Credit Agreement. If the Trustee receives notice from the
Company as provided in Section 3.6 of the Agreement to the effect
that the Company intends to terminate the Credit Agreement prior
to its stated termination date, the Trustee shall notify the
Bondholders by first class mail at least 15 Business Days prior
to the effective date of such termination. The notice shall be
effective when sent and shall state:
(1) that the Company has notified the Trustee that it
intends to terminate the Credit Agreement;
(2) the effective date of such termination; and
(3) if the interest is then payable at a Daily Rate
or a Weekly Rate, that the Bondholders have the right to
tender Bonds to the Trustee for purchase as provided in
Section 6 of the form of the Bonds set out in Exhibit A
hereto.
Section 2.03. Execution and Authentication. The Bonds shall
be signed on behalf of the Issuer with the manual or facsimile
signature of its Chairman or Vice Chairman and attested by the
manual or facsimile signature of its Secretary or Assistant
Secretary, and the seal of the Issuer shall be impressed or
imprinted on the Bonds by facsimile or otherwise. All authorized
facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond
no longer holds that office at the time the Trustee authenticates
the Bond, the Bond shall nevertheless be valid. Also, if a
person signing a Bond is the proper officer on the actual date of
execution, the Bond shall be valid even if that person is not the
proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this
Indenture until the Trustee manually signs the certificate of
authentication on the Bond. Such signature shall be conclusive
evidence that the Bond has been authenticated under this
Indenture.
As a precondition to the initial authentication and delivery
of the Bonds, the Trustee shall receive a request and
authorization to the Trustee from the Issuer, signed by the
Chairman or Vice Chairman of the Issuer, to authenticate and
16<PAGE>
deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at
the principal corporate trust office of the Trustee for
registration, registration of transfer, exchange and payment.
Bonds tendered by their holders must be delivered as specified in
the Bonds. The Trustee shall keep a register of Bonds and of
their registration of transfer and exchange, which register shall
be open to inspection by the Issuer and the Company during normal
business hours.
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners. Bonds may be registered as transferred only
on the register maintained by the Trustee. Upon surrender for
registration of transfer of any Bond to the Trustee, duly
endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized
in writing, the Trustee will authenticate a new Bond or Bonds of
the same maturity, in an equal total principal amount and
registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount
of Bonds of the same maturity but of different authorized
denominations. The Trustee will authenticate and deliver Bonds
that the Bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for
purchase or purchased in lieu of redemption, the Trustee will not
be required to register the transfer of or to exchange any Bond
called for redemption or during the period beginning 15 days
before the mailing of notice calling the Bonds or any portion of
the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the
absolute owner of the Bond for all purposes, and payment of
principal, interest or purchase price shall be made only to or
upon the written order of the holder or the holder's legal
representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder
requesting exchange or registration of transfer of any tax or
other governmental charge required to be paid in respect of the
exchange or registration of transfer but will not impose any
other charge.
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds. If any Bond is mutilated, lost, stolen or
destroyed, the Trustee will authenticate a new Bond of the same
denomination with similar terms if any mutilated Bond shall first
17<PAGE>
be surrendered to the Trustee, and if, in the case of any lost,
stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft
or destruction, together with an indemnity, satisfactory to them.
If the Bond has matured or become subject to redemption or
purchase, instead of issuing a replacement Bond, the Trustee may
with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee
deems fit for its protection, including a lost instrument bond.
The Issuer, the Company and the Trustee may charge their
reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to
purchase the Bond in lieu of redemption as provided in
Article III, or if the holder of a Bond gives irrevocable
instructions to the Remarketing Agent for purchase, and in each
case funds are deposited with the Trustee sufficient for the
purchase, the Trustee upon request of the Company or the
Remarketing Agent will authenticate a new Bond in the same
maturity and in the same denomination registered as the Company
or the Remarketing Agent may direct and deliver it to the Company
or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered
Bonds shall be cancelled on the books of the Trustee, whether or
not said undelivered Bonds have been delivered to the Trustee.
From and after the purchase date, interest on such Bond shall
cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this
Indenture and shall have recourse solely to the funds held by the
Trustee for the purchase of such Bond and the Trustee shall not
register any further transfer of such Bond by such prior holder.
All funds held by the Trustee for the purchase of undelivered
Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is
delivered to the Trustee for cancellation (upon payment,
redemption or otherwise), or for registration of transfer,
exchange or replacement pursuant to Section 2.05 or Section 2.06,
the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided,
however, that the Trustee shall not be required to destroy
cancelled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are
ready for delivery, the Issuer may execute and the Trustee will
authenticate temporary Bonds substantially in the form of the
definitive Bonds, with appropriate variations. The Issuer will,
without unreasonable delay, prepare and the Trustee will
authenticate definitive Bonds in exchange for the temporary
Bonds. Such exchange shall be made by the Trustee without charge.
18<PAGE>
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes
that any Bonds be redeemed pursuant to any optional redemption
provision in the Bonds, the Company will notify the Trustee of
the applicable provision, the redemption date, the principal
amount of the Bonds to be redeemed and other necessary particu-
lars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of
Bonds to be redeemed pursuant to any optional redemption
provision in the Bonds will be a date permitted by the Bonds and
specified by the Company in the notice delivered pursuant to
Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or
determined by the Trustee consistently with the provisions of the
Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as
provided in the Bonds, if fewer than all the Bonds are to be
redeemed, the Trustee will select the Bonds to be redeemed by lot
or other method it deems fair and appropriate, except that the
Trustee will first select any Bonds owned by the Company or any
of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the
selection from Bonds not previously called for redemption. For
this purpose, the Trustee will consider each Bond in a
denomination larger than the minimum denomination permitted by
the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds
called for redemption also apply to portions of Bonds called for
redemption.
Section 3.04. Redemption Notices.
(a) Official Notice of Redemption. The Trustee will give
notice of each redemption as provided in the Bonds and will at
the same time give a copy of the notice to the Remarketing Agent,
provided that no redemption notice shall be given with respect to
a redemption under "Mandatory Redemption on Each Interest Payment
Date During Commercial Paper Mode" in Section 8 of the form of
the Bonds. The notice shall identify the Bonds to be redeemed
and shall state (1) the redemption date (and, if the Bonds
provide that accrued interest will not be paid on the redemption
date, the date it will be paid), (2) the redemption price,
(3) that the Bonds called for redemption must be surrendered to
collect the redemption price, (4) the address at which the Bonds
must be surrendered and (5) that interest on the Bonds called for
redemption ceases to accrue on the redemption date.
19<PAGE>
With respect to an optional redemption of any Bonds under
"Optional Redemption at a Premium During Long-Term Interest Rate
Period," "Extraordinary Optional Redemption" or "Optional Redemp-
tion During Daily or Weekly Rate Period" in Section 8 of the form
of the Bonds, unless moneys sufficient to pay the principal of,
redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the
giving of such notice of redemption, such notice may state that
said redemption shall be conditional upon the receipt of such
moneys by the Trustee on or prior to the date fixed for
redemption. If such moneys are not received, such notice shall
be of no force and effect, the Issuer shall not redeem such
Bonds, the redemption price shall not be due and payable, and the
Trustee shall give notice, in the same manner in which the notice
of redemption was given, that such moneys were not so received
and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any
particular Bonds or any defect therein will not affect the
validity of the call for redemption of any Bonds in respect of
which no such failure or defect has occurred. Any notice mailed
as provided in the Bonds shall be effective when sent and will be
conclusively presumed to have been given whether or not actually
received by any holder.
(b) Additional Notice of Redemption. In addition to the
redemption notice required above, if there is not a Book-Entry
System in effect for the Bonds, further notice (the "Additional
Notice") shall be given by the Trustee as set out below. No
defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat
the effectiveness of a call for redemption if notice is given as
prescribed in paragraph (a) above.
(1) Each Additional Notice of redemption shall
contain the information required in paragraph (a) above for
an official notice of redemption plus (i) the CUSIP numbers
of all Bonds being redeemed; (ii) the date of the Bonds as
originally issued; (iii) the interest rate determination
method for, or the rate of interest borne by each Bond being
redeemed; (iv) the maturity date of each Bond being
redeemed; and (v) any other descriptive information needed
to identify accurately the Bonds being redeemed.
(2) Each Additional Notice of redemption shall be
sent at least 30 days before the redemption date by
registered or certified mail or overnight delivery service
(or by such other means as the Trustee may have established
with the securities depository or information service) to
all registered securities depositories then in the business
of holding substantial amounts of obligations similar to the
Bonds (such depositories now being Depository Trust Company
20<PAGE>
of New York, New York, Midwest Securities Trust Company of
Chicago, Illinois, and Philadelphia Depository Trust Company
of Philadelphia, Pennsylvania) and to one or more national
information services that disseminate notices of redemption
of obligations such as the Bonds.
The information required in any redemption notice (including
an Additional Notice) pursuant to this Section and the
information required in any notice pursuant to Section 2.02(c)
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon
surrender to the Trustee, Bonds called for redemption shall be
paid or purchased in lieu of redemption as provided in this
Article at the redemption price stated in the notice, plus
interest accrued to the redemption date, or at a purchase price
as provided in the form of Bond, except that interest payable on
Bonds bearing interest at a Daily Rate will be paid on the fifth
Business Day following the redemption date. Bonds called for
redemption and purchased pursuant to a tender before the
redemption date will not be redeemed but will be dealt with as
provided below in this Article. Upon the payment of the
redemption price of the Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP
number identifying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer.
Section 3.06. Bonds Redeemed in Part. Subject to
Article V, upon surrender of a Bond redeemed or purchased in lieu
of redemption in part, the Trustee will authenticate for the
holder a new Bond or Bonds in authorized denominations equal in
principal amount to the unredeemed or unpurchased portion of the
Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption.
When Bonds are called for redemption pursuant to the paragraphs
captioned, "Mandatory Redemption at Beginning of a New Long-Term
Interest Rate Period" or "Mandatory Redemption Upon a Change in
the Method of Determining the Interest Rate on the Bonds" in
Section 8 of the form of the Bonds, the Company may purchase some
of or all the Bonds called for redemption for a price equal to
the otherwise applicable redemption price, if it (or the
Remarketing Agent) gives written notice to the Trustee by 5:00
p.m. New York City time on the day before the redemption date
that it wishes to purchase the Bonds the principal amount of
which is specified in the notice and furnishes the Trustee
sufficient money in sufficient time for the Trustee to make the
purchase on the redemption date. The Trustee will purchase Bonds
called for redemption pursuant to the paragraph captioned
21<PAGE>
"Mandatory Redemption on Each Interest Payment Date During
Commercial Paper Mode" unless otherwise instructed in writing by
the Company, or unless the Indenture otherwise requires that they
be redeemed and cancelled, before the redemption date. The
Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to
be Remarketed. Bonds purchased pursuant to tenders as provided
in the form of Bonds or in lieu of redemption as provided in the
foregoing Section will be offered for sale by the Remarketing
Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having
been called for redemption under a provision in the form of
Bond that does not provide the Company an option to purchase
in lieu of redemption will be canceled.
(2) Bonds called for redemption under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in Section 8 of the form of
Bond, which are tendered between the date notice of
redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer
receives a copy of the redemption notice from the
Remarketing Agent.
(3) Bonds will not be offered for sale under this
Section during the continuance of an Event of Default under
Section 8.01(a), (b), (c) or (d). Bonds will be offered for
sale under this Section during the continuance of any other
Event of Default or an event which with the passage of time
or the giving of notice or both may become an Event of
Default only in the sole discretion of the Remarketing
Agent.
(b) Remarketing Effort. Except to the extent the Company
directs the Remarketing Agent not to do so, the Remarketing Agent
will offer for sale and use reasonable efforts to sell all Bonds
to be sold as provided in paragraph (a) above and, when directed
by the Company, any Bonds held by the Company. The sale price of
each Bond must be equal to the principal amount of each Bond plus
accrued interest, if any, to the purchase date. The Company may
direct the Remarketing Agent from time to time to cease and to
resume sales efforts with respect to some of or all the Bonds.
The Remarketing Agent may buy as principal any Bonds to be
offered under this Section.
(c) Notices in Respect of Tenders. When the Trustee
receives a notice from a Bondholder (or a Beneficial Owner
through its direct Participant) as specified in Section 6 of the
form of the Bond for the Bondholder (or a Beneficial Owner
22<PAGE>
through its direct Participant) to tender Bonds, the Trustee will
promptly notify the Remarketing Agent and the Company by
facsimile transmission or telephone, promptly confirmed in
writing, of the receipt of such notice, but in no event later
than the following times:
(i) when the Bonds bear interest at a Daily Rate, no
later than 11:15 a.m. (New York City time) on the same
Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no
later than 11:15 a.m. (New York City time) on the Business
Day next succeeding receipt of such notice.
(d) Delivery of Remarketed Bonds.
(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant
to this Section in trust for the benefit of the owners
thereof until moneys representing the purchase price of such
Bonds shall have been delivered to or for the account of or
to the order of such Bondholders, and thereafter, if such
Bonds are remarketed, shall deliver replacement Bonds,
prepared by the Trustee in accordance with the directions of
the Remarketing Agent and authenticated by the Trustee, for
any Bonds purchased in accordance with the written
directions of the Remarketing Agent to the Remarketing Agent
for delivery to the purchasers thereof.
(ii) The Remarketing Agent shall advise the Trustee and
the Company in writing or by facsimile transmission of the
principal amount of Bonds which have been remarketed,
together with the denominations and registration
instructions (including taxpayer identification numbers) in
accordance with the following schedule (all times of which
are New York City time):
23<PAGE>
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long -Term Interest Rate Period 12:15 p.m. on the purchase date
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase
price by the Remarketing Agent to the Trustee in exchange
for Bonds registered in the name of the new Bondholder which
shall be delivered by the Trustee to the Remarketing Agent
at or before 2:00 p.m. (New York City time) on the purchase
date if the purchase price has been received from the
Remarketing Agent by the time set forth in Section 3.08(e)
on the purchase date.
(e) Delivery of Proceeds of Sale. The Remarketing Agent
shall deliver directly to the Trustee an amount equal to the
principal amount thereof plus accrued interest, if any, of the
Bonds which the Remarketing Agent has advised the Trustee have
been remarketed pursuant to Section 3.08(d)(ii) no later than
12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will
cause the proceeds of the initial sale of the Bonds to be
deposited with the Trustee. On a date or dates to be designated
by the Company the Trustee will disburse the proceeds of the
initial sale of the Bonds and any investment earnings thereon to
the Refunded Bonds Trustee for deposit in the bond fund created
under the Prior Indenture, to be applied to pay the redemption
price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has
agreed to pay to the Refunded Bonds Trustee the amount in excess
of the proceeds of the Bonds needed to pay the redemption price
of the Refunded Bonds.
Section 4.02. Payment of Bonds. The Trustee will make
payments of principal of, premium, if any, and interest on the
Bonds from moneys available to the Trustee under this Indenture
for that purpose. The Trustee will pay the purchase price of
tendered Bonds first from the proceeds of the sale of Bonds under
Section 3.08 and second from other moneys available to the
Trustee for that purpose.
24<PAGE>
All moneys received as proceeds of remarketing the Bonds
under Section 3.08 shall be held segregated by the Trustee in a
separate and segregated trust account. To the extent that the
25<PAGE>
payment of principal or interest on the Bonds is made from moneys
as described in this Section, such payment shall also satisfy and
discharge any payment obligation of the Company under the Note or
the First Mortgage Bonds and the Trustee shall promptly notify
the Company and the Mortgage Trustee in writing if such payment
requirement has not been satisfied. If any Bond is redeemed
prior to maturity or if the Company surrenders any Bond to the
Trustee for cancellation, the Trustee shall cancel such Bond and
surrender to the Company First Mortgage Bonds in a principal
amount and maturing on the date corresponding to the Bond so
redeemed or otherwise cancelled. The Trustee shall promptly give
notice to the Mortgage Trustee of any such redemption or
cancellation of a portion of the First Mortgage Bond.
Section 4.03. Investments of Moneys. The Trustee will
invest and reinvest moneys held by the Trustee as directed by the
Company to the extent permitted by law, 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.
The Trustee may make investments permitted by this Article
through its own bond department or the bond department of any
bank or trust company under common control with the Trustee.
Investments will be made so as to mature or be subject to redemp-
tion at the option of the holder on or before the date or dates
that the Trustee anticipates that moneys from the investments
will be required. The Trustee, when authorized by the Company,
may trade with itself in the purchase and sale of securities for
such investment. Investments will be registered in the name of
the Trustee and held by or under the control of the Trustee. The
Trustee will sell and reduce to cash a sufficient amount of
investments whenever the cash held by the Trustee is
insufficient. The Trustee shall not be liable for any loss from
26<PAGE>
such investments to the extent directed by the Company and to the
extent such directions have been complied with by the Trustee.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The
Trustee shall deposit into a separate and segregated trust
account for the benefit of the Bondholders all moneys received by
it for any payment on the Bonds. The proceeds of the initial
sale of the Bonds shall be held in a separate and segregated
trust account by the Trustee until disbursed as described in
Section 4.01. Money received by the Remarketing Agent or the
Trustee from the sale of a Bond under Section 3.08 or for the
purchase of a Bond will be held segregated from other funds of
the Remarketing Agent or the Trustee in trust for the benefit of
the person from whom such Bond was purchased or the person
delivering such purchase money, as the case may be, and will not
be invested. The Trustee shall promptly, but in no event later
than 30 days of their original deposit, apply moneys received
from the Company in accordance with this Indenture and as
directed by the Company.
Notwithstanding the provisions of the immediately preceding
paragraph, any moneys which shall be set aside by the Trustee or
deposited by the Trustee with the paying agents 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.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be
initially issued in the name of Cede & Co., as nominee for The
Depository Trust Company as the initial Securities Depository and
registered owner of such Bonds, and held in the custody of the
Securities Depository. A single certificate will be issued and
delivered to the Securities Depository for the Bonds. The
Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the
Securities Depository shall continue to serve as securities
depository for such Bonds as provided herein, all transfers of
beneficial ownership interests will be made by book-entry only on
the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring
27<PAGE>
beneficial ownership of such Bonds is to receive, hold or deliver
any Bond certificate. The Issuer, the Company and the Trustee
will recognize the Securities Depository or its nominee as the
Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as
The Depository Trust Company shall continue to serve as
Securities Depository for the Bonds, to meet the requirements of
The Depository Trust Company with respect to required notices and
other provisions of the Letter of Representations among The
Depository Trust Company, the Issuer, the Trustee, the Company
and the Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing
Agent may conclusively rely upon (i) a certificate of the
Securities Depository as to the identity of the Participants in
the Book-Entry-System and (ii) a certificate of any such
Participant as to the identity of, and the respective principal
amount of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial
ownership thereof is determined by a book-entry at the Securities
Depository, the requirements in this Indenture of holding,
delivering or transferring Bonds shall be deemed modified to
require the appropriate person to meet the requirements of the
Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any
provision hereof permitting or requiring delivery of Bonds shall,
while the Bonds are in a Book-Entry System, be satisfied by the
notation on the books of the Securities Depository in accordance
with applicable law.
The Trustee and the Issuer, at the direction and expense of
the Company and with the consent of the Remarketing Agent, may
from time to time appoint a successor Securities Depository and
enter into an agreement with such successor Securities Depository
to establish procedures with respect to the Bonds consistent with
current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the
Securities Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the
Remarketing Agent will have any responsibility or obligation to
any Securities Depository, any Participants in the Book-Entry
System or the Beneficial Owners with respect to (i) the accuracy
of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by
any Participant of any amount due to any Beneficial Owner in
respect of the principal amount or redemption or purchase price
of, or interest on, any Bonds; (iii) the delivery of any notice
by the Securities Depository or any Participant; (iv) the
28<PAGE>
selection of the Beneficial Owners to receive payment in the
event of any partial redemption of the Bonds; or (v) any other
action taken by the Securities Depository or any Participant.
Bond certificates are required to be delivered to and
registered in the name of the Beneficial Owner, under the
following circumstances:
(a) The Securities Depository determines to
discontinue providing its service with respect to the Bonds
and no successor Securities Depository is appointed as
described above. Such a determination may be made at any
time by giving 30 days' notice to the Issuer, the Company
and the Trustee and discharging its responsibilities with
respect thereto under applicable law.
(b) The Company determines not to continue the Book-
Entry System through a Securities Depository.
The Trustee is hereby authorized to make such changes to the
form of bond attached hereto as Exhibit A which are necessary or
appropriate to reflect that the Book-Entry System is not in
effect, that a successor Securities Depository has been appointed
or that an additional or co-paying agent or tender agent has been
designated pursuant to Section 13.03 hereof.
If at any time, the Securities Depository ceases to hold the
Bonds all references herein to the Securities Depository shall be
of no further force or effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly
pay the principal of, premium, if any, and interest on, and other
amounts due with respect to, the Bonds on the dates and in the
manner provided in the Bonds, but only from the amounts assigned
to and held by the Trustee under this Indenture. 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 costs incidental
thereto.
Section 6.02. Performance of Covenants; Issuer. The Issuer
covenants that it will faithfully perform at all times any and
29<PAGE>
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 Bonds authorized hereby and to execute this
Indenture, to assign and pledge the Note and the Agreement and
the amounts payable under the Note 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 Bonds and the execution and delivery of
this Indenture has been duly and effectively taken; and that the
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 6.03. Recording and Filing; Further Assurances.
The Issuer will execute and deliver such supplemental indentures
and such further instruments, and do such further acts, as the
Trustee may reasonably require for the better assuring, assigning
and confirming to the Trustee the amounts assigned under this
Indenture for the payment of 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 Note, the
First Mortgage Bonds or the Agreement, if any, except the lien of
this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it
shall take no action nor make any investment or use of the
proceeds of the Bonds or any other moneys which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code 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
30<PAGE>
monies held under any fund or account created hereunder shall be
to invest such monies in accordance with Section 4.03 hereof in
each case pursuant to the instructions received by the Trustee in
accordance with Section 4.03 hereof.
Section 6.05. 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.
Section 6.06. 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 6.07. 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 VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture.
Any Bond will be deemed paid for all purposes of this Indenture
when (a) payment of the principal of and interest on the Bond to
the due date of such principal and interest (whether at maturity,
upon redemption or otherwise) or the payment of the purchase
price either (1) has been made in accordance with the terms of
the Bonds or (2) has been provided for by depositing with the
Trustee in trust (A) moneys in an amount which are sufficient to
make such payment and/or (B) Government Obligations maturing as
to principal and interest in such amounts and at such times as
31<PAGE>
will insure, without any further reinvestment, the availability
of sufficient moneys to make such payment, and (b) all
compensation and reasonable expenses of the Trustee pertaining to
each Bond in respect of which such deposit is made have been paid
or provided for to the Trustee's satisfaction. When a Bond is
deemed paid, it will no longer be secured by or entitled to the
benefits of this Indenture or be an obligation of the Issuer, and
shall be payable solely from the moneys or Government Obligations
under (a)(2) above, except that such Bond may be tendered if and
as provided in the Bonds and it may be registered as transferred,
exchanged, registered, discharged from registration or replaced
as provided in Article II.
Notwithstanding the foregoing, upon the deposit of funds or
Government Obligations under clause (a)(2) of the first paragraph
of this Section, the purchase price of tendered Bonds shall be
paid from the sale of Bonds under Section 3.08. If payment of
such purchase price is not made from the sale of Bonds pursuant
to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need
of any further instruction or direction by the Company, in which
case such Bonds shall be surrendered to the Trustee and
cancelled.
Notwithstanding the foregoing, no deposit under
clause (a)(2) of the first paragraph of this Section shall be
deemed a payment of a Bond until the (1) Company has furnished
the Trustee an Opinion of Tax Counsel to the effect that the
deposit of such cash or Government Obligations will not cause the
Bonds to become "arbitrage bonds" under Section 148 of the Code
and (2) (a) notice of redemption of the Bond is given in
accordance with Article III or, if the Bond is not to be redeemed
or paid within the next 60 days, until the Company has given the
Trustee, in form satisfactory to the Trustee, irrevocable
instructions (i) to notify, as soon as practicable, the owner of
the Bond, in accordance with Article III, that the deposit
required by (a)(2) above has been made with the Trustee and that
the Bond is deemed to be paid under this Article and stating the
maturity or redemption date upon which moneys are to be available
for the payment of the principal of the Bond, and premium, if
any, and interest on such Bond, if the Bond is to be redeemed
rather than paid and (ii) to give notice of redemption not less
than 30 nor more than 60 days prior to the redemption date for
such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the
foregoing provisions of this Section, the Trustee will upon
request acknowledge the discharge of the lien of this Indenture,
provided, however that the obligations relating to the tender for
purchase as provided in the Bonds and obligations under
Article II in respect of the registration of transfer, exchange,
32<PAGE>
registration, discharge from registration and replacement of
Bonds shall survive the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee
shall hold in trust money or Government Obligations deposited
with it pursuant to the preceding Section and shall apply the
deposited money and the money from the Government Obligations in
accordance with this Indenture only to the payment of principal
of, premium, if any, and interest on the Bonds and to the payment
of the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. The Trustee shall
promptly pay to the Company upon request any excess money or
securities held by the Trustee at any time under this Article and
any money held by the Trustee under any provision of this
Indenture for the payment of principal or interest or for the
purchase of Bonds that remains unclaimed for six years.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is
any of the following:
(a) Default in the payment of any interest on any
Bond when due and as the same shall become due and payable,
which default continues for five days.
(b) Default in the due and punctual payment of
principal on any Bond when due and payable, whether at
maturity, upon redemption, or by declaration or otherwise.
(c) Default in the due and punctual payment of the
purchase price of any Bond required to be purchased in
accordance with its terms.
(d) Acceleration for any reason of the maturity of
all first mortgage bonds issued by the Company under the
Company Indenture, and such acceleration shall not have been
rescinded.
(e) An event of default has occurred and is
continuing under the Agreement.
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
33<PAGE>
and payable; and such principal and interest shall thereupon
become and be immediately due and payable.
If after the principal of the Bonds and the accrued interest
thereon have been so declared to be due and payable, all arrears
of interest and interest on overdue installments of interest (if
lawful) 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 Mortgage Trustee, any
demand made by the Trustee pursuant to the Company Indenture.
Section 8.03. Other Remedies. If an Event of Default
occurs and is continuing, subject to Section 8.06, the Trustee,
before or after declaring the principal of the Bonds and the
interest accrued thereon immediately due and payable, may, and
upon request of the holders of at least 25% in principal amount
of the Bonds then outstanding shall, pursue any available remedy
by proceeding at law or in equity available to the Trustee under
the Agreement, the Note or the First Mortgage Bonds to collect
the principal of or interest on the Bonds or the First Mortgage
Bonds or to enforce the performance of any provision of the
Bonds, the Note, this Indenture or the Agreement.
The Trustee, as the assignee of all the right, title and
interest of the Issuer in and to the Agreement, the Note and the
First Mortgage Bonds, may enforce each and every right granted to
the Issuer under the Agreement, the Note and the First Mortgage
Bonds. 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 Proceeding 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
34<PAGE>
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 Bondholder
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 default or shall
impair any rights or remedies consequent thereon.
Section 8.05. 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 8.06. Waiver of Past Defaults. The holders of a
majority in principal amount of the Bonds then outstanding by
notice to the Trustee may waive an existing Event of Default and
its consequences. When an Event of Default is waived, it is
35<PAGE>
cured and stops continuing, but no such waiver shall extend to
any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a
majority in principal amount of the Bonds then outstanding may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any
trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture
or, subject to Section 9.01, that the Trustee determines is
unduly prejudicial to the rights of other Bondholders, or would
involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not
pursue any remedy with respect to this Indenture or the Bonds
unless (a) the holder gives the Trustee notice stating that an
Event of Default is continuing, (b) the holders of at least 25%
in principal amount of the Bonds then outstanding make a written
request to the Trustee to pursue the remedy, (c) such holder or
holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense and (d) the
Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; 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 the 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.
A Bondholder may not use this Indenture to prejudice the
rights of another Bondholder or to obtain a preference or
priority over the other Bondholders.
Section 8.09. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any holder to receive payment of principal of and interest on
a Bond, on or after the due dates expressed in the Bond, or the
purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any
such payment on or after such dates, shall not be impaired or
affected without the consent of the holder.
36<PAGE>
Section 8.10. Collection Suit by Trustee. If an Event of
Default under Section 8.01(a), (b) or (c) occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole
amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Bondholders allowed in any judicial
proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the holders in any election of a trustee in
bankruptcy or other person performing similar functions. In the
event of a bankruptcy or reorganization of the Company, the
Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the
Agreement and the Note, including a proof of claim with respect
to the obligation of the Company under the First Mortgage Bonds,
and any such claim with respect to the First Mortgage Bonds shall
reduce the claim of the Mortgage Trustee pro tanto.
Section 8.12. Priorities. If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the
following order:
FIRST: To the Trustee for amounts to which it is
entitled under Section 9.02.
SECOND: To Bondholders for amounts due and unpaid on
the Bonds for principal and interest,
ratably, without preference or priority of
any kind, according to the amounts due and
payable on the Bonds for principal and
interest, respectively.
THIRD: To the Company.
The Trustee may fix a payment date for any payment to the
Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a
37<PAGE>
holder pursuant to Section 8.07 or a suit by holders of more than
10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
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 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
38<PAGE>
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
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
39<PAGE>
any of the payments to the Trustee required to be made by
Article IV 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 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, 8.08, 8.09 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
40<PAGE>
for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers.
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 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.
41<PAGE>
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 3.04 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 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
42<PAGE>
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 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 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 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 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 Note 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 the Note or First Mortgage Bonds, and the
Trustee is authorized to enter into an agreement with the Company
43<PAGE>
to such effect, including a consent to the issuance of stop
transfer instructions to the 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 Note and the First Mortgage Bonds, at or prior to
the issuance of the 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.
Section 9.14 Duties of Remarketing Agent. The Remarketing
Agent will set the interest rates on the Bonds and perform the
other duties provided for in Section 2.02 and will remarket the
Bonds as provided in Section 3.08, subject to any provisions of a
remarketing agreement between the Company and the Remarketing
Agent. The Remarketing Agent may for its own account or as
broker or agent for others deal in Bonds and may do anything any
other Bondholder may do to the same extent as if the Remarketing
Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The
initial Remarketing Agent appointed under this Indenture is J.P.
Morgan Securities Inc. The Remarketing Agent will be a bank,
trust company or member of the National Association of Securities
Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have
a combined capital stock, surplus and undivided profits of at
least $15,000,000 as shown in its most recent published annual
report, will be a Participant in the Securities Depository and
will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be
rated at least Baa3/P-3 or otherwise qualified by Moody's
Investors Service, Inc. or have an equivalent rating of another
rating agency.
Section 9.16 Replacement of Remarketing Agent. The
Remarketing Agent may resign by notifying the Issuer, Trustee and
Company. Such resignation will take effect on the day a
successor Remarketing Agent appointed in accordance with this
Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The
Company may remove the Remarketing Agent at any time by an
instrument signed by the Company and filed with the Remarketing
Agent, the Issuer and the Trustee at least 30 days prior to the
44<PAGE>
effective date of such removal (which will not in any event occur
prior to the appointment of a successor Remarketing Agent). A
new Remarketing Agent may be appointed by the Company upon the
resignation or removal of the Remarketing Agent. The Trustee
shall promptly notify the Bondholders of any change in the
Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The
Remarketing Agent will not be entitled to any compensation from
the Issuer, the Trustee or any property held under this Indenture
but must make separate arrangements with the Company for
compensation.
Section 9.18. Successor Remarketing Agent. If the
Remarketing Agent consolidates with, merges or converts into, or
transfers all or substantially all its assets (or, in the case of
a bank or trust company, its corporate trust assets) to another
corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the
applicable provisions in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer
and the Trustee may amend or supplement this Indenture or the
Bonds without notice to or consent of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal
defect or omission,
(b) to grant to the Trustee for the benefit of the
Bondholders additional rights, remedies, powers or
authority,
(c) to subject to this Indenture additional
collateral or to add other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture Act of 1939, as
amended, or any similar federal statute at the time in
effect, or to permit the qualification of the Bonds for sale
under the securities laws of any state of the United States,
(e) to authorize different authorized denominations
of the Bonds and to make correlative amendments and
modifications to this Indenture regarding exchangeability of
Bonds of different authorized denominations, redemptions of
portions of Bonds of particular authorized denominations and
similar amendments and modifications of a technical nature,
45<PAGE>
(f) to increase or decrease the number of days
specified for the giving of notices in Section 2.02 and to
make corresponding changes to the period for notice of
redemption of the Bonds; provided that no decreases in any
such number of days shall become effective except while the
Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the
owners of the Bonds,
(g) to provide for an uncertificated system of
registering the Bonds or to provide for the change to or
from a Book-Entry System for the Bonds,
(h) to evidence the succession of a new Trustee or
the appointment by the Trustee or the Issuer of a co-
trustee, or
(i) to make any change (including a change in Section
4.01 to reflect any amendment to the Code or interpretations
by the Internal Revenue Service of the Code) that does not
materially adversely affect the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment
of or supplement to this Indenture or the Bonds without any
consent of Bondholders is not permitted by the preceding Section,
the Issuer and the Trustee may enter into such amendment or
supplement without prior notice to any Bondholders but with the
consent of the holders of at least a majority in aggregate
principal amount of the Bonds then outstanding. However, without
the consent of each Bondholder affected, no amendment or
supplement may (a) extend the maturity of the principal of, or
interest on, any Bond or the First Mortgage Bonds, (b) reduce the
principal amount of, or rate of interest on, any Bond or the
First Mortgage Bonds, (c) effect a privilege or priority of any
Bond or Bonds over any other Bond or Bonds, (d) reduce the
percentage of the principal amount of the Bonds required for
consent to such amendment or supplement, (e) impair the exclusion
from federal gross income of interest on any Bond, (f) eliminate
the holders' rights to tender the Bonds, or any mandatory
redemption of the Bonds, extend the due date for the purchase of
Bonds tendered by the holders thereof or call for mandatory
redemption or reduce the purchase or redemption price of such
Bonds, (g) create a lien ranking prior to or on a parity with the
lien of this Indenture on the property described in the Granting
Clause of this Indenture or (h) deprive any Bondholder of the
lien created by this Indenture on such property. In addition, if
moneys or Government Obligations have been deposited or set aside
with the Trustee pursuant to Article VII for the payment of Bonds
and those Bonds shall not have in fact been actually paid in
full, no amendment to the provisions of that Article shall be
made without the consent of the holder of each of those Bonds
affected.
46<PAGE>
Section 10.03. Effect of Consents. Any consent received
pursuant to Section 10.02 will bind each Bondholder delivering
such consent and each subsequent holder of a Bond or portion of a
Bond evidencing the same debt as the consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an
amendment or supplement changes the terms of a Bond, the Trustee
may require the holder to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Bond about the changed
terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in
exchange for the Bond will issue and the Trustee will
authenticate a new Bond that reflects the changed terms.
Section 10.05. Signing by Trustee of Amendments and
Supplements. The Trustee will sign any amendment or supplement
to the Indenture or the Bonds authorized by this Article if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment
or supplement, the Trustee will be entitled to receive and
(subject to Section 9.01) will be fully protected in relying on
an Opinion of Counsel stating that such amendment or supplement
is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or
supplement to this Indenture or the Bonds shall not become
effective unless the Company delivers to the Trustee its written
consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall
cause notice of the execution of each supplement or amendment to
this Indenture or the Agreement to be mailed to the Bondholders.
The notice will at the option of the Trustee, either (i) briefly
state the nature of the amendment or supplement and that copies
of it are on file with the Trustee for inspection by Bondholders
or (ii) enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
OR FIRST MORTGAGE BONDS
Section 11.01. Without Consent of Bondholders. The Issuer
may enter into, and the Trustee may consent to, any amendment of
or supplement to the Agreement or the Note, or may waive
compliance by the Company of any provision of the Agreement or
the Note, and the Trustee, as holder of the First Mortgage Bonds,
may consent to any amendment of or supplement to the Company
Indenture or the First Mortgage Bonds, in each case without
notice to or consent of any Bondholder, if the amendment,
supplement or waiver is required or permitted (a) by the
47<PAGE>
provisions of the Agreement or this Indenture, (b) to cure any
ambiguity, inconsistency or formal defect or omission, (c) to
identify more precisely the Project, (d) in connection with any
authorized amendment of or supplement to this Indenture or (e) to
make any change that in the judgment of the Trustee does not
materially adversely affect the rights of any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment
of or supplement to the Agreement, the Note, the Company
Indenture or the First Mortgage Bonds without any consent of
Bondholders is not permitted by the foregoing Section, the Issuer
may enter into, and/or the Trustee may consent to (as the case
may be), such amendment or supplement, or may waive compliance by
the Company of any provision of the Agreement, without notice to
any Bondholder but with the consent of the holders of at least a
majority in aggregate principal amount of the Bonds then
outstanding. However, without the consent of each Bondholder
affected thereby, no amendment, supplement or waiver may result
in anything described in the lettered clauses of Section 10.02.
Section 11.03. Consents by Trustee to Amendments or
Supplements. The Trustee will consent to any amendment or
supplement to the Agreement, the Note, the Company Indenture or
the First Mortgage Bonds authorized by this Article if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing a consent to
an amendment or supplement, the Trustee shall be entitled to
receive and (subject to Section 9.01) shall be fully protected in
relying on an Opinion of Counsel stating that such amendment or
supplement is authorized or permitted by this Indenture.
ARTICLE XII
VOTING OF FIRST MORTGAGE BONDS
Section 12.01. Voting of Mortgage Bond Held by the Trustee.
The Trustee, as a holder of First Mortgage Bonds, shall attend
any meeting of bondholders under the Company Indenture 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 the holders 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
48<PAGE>
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 proposal would
so affect the rights of some but less than all the outstanding
Bonds, the consent thereto of the holders of at least 50% in
aggregate principal amount of the Bonds so affected.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices. (a) Any notice, request, direction,
designation, consent, acknowledgment, certification, appointment,
waiver or other communication required or permitted by this
Indenture or the Bonds must be in writing except as expressly
provided otherwise in this Indenture or the Bonds.
(b) Any notice or other communication shall be sufficiently
given and deemed given when delivered by hand or mailed by first-
class mail, postage prepaid, addressed as follows: if to the
Issuer, c/o Board of Commissioners of Monroe County, Forsyth,
Georgia 31029; if to the Trustee, to 3350 Cumberland Circle,
Suite 10-681, Atlanta, Georgia 30339, 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 Remarketing Agent, to J.P. Morgan Securities Inc.,
60 Wall Street, New York, New York 10260-0060, Attention:
Municipal Syndicate Director. Any addressee may designate
additional or different addresses for purposes of this Section.
Section 13.02. Bondholders' Consents. Any consent or other
instrument required by this Indenture to be signed by Bondholders
may be in any number of concurrent documents and may be signed by
a Bondholder or by the holder's agent appointed in writing.
Proof of the execution of such instrument or of the instrument
appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this
Indenture with regard to any action taken by the Trustee under
the instrument:
(a) The fact and date of a person's signing an
instrument may be proved by the certificate of any officer
in any jurisdiction who by law has power to take
acknowledgments within that jurisdiction that the person
signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness
to the signing.
(b) The fact of ownership of Bonds, the amount or
amounts, numbers and other identification of such Bonds and
49<PAGE>
the date of holding shall be proved by the registration
books kept pursuant to this Indenture.
In determining whether the holders of the required principal
amount of Bonds outstanding have taken any action under this
Indenture, Bonds owned by the Company or any person controlling,
controlled by or under common control with the Company shall be
disregarded and deemed not to be outstanding. In determining
whether the Trustee shall be protected in relying on any such
action, only Bonds which the Trustee knows to be so owned shall
be disregarded.
Any consent or other instrument shall be irrevocable and
shall bind any subsequent owner of such Bond or any Bond
delivered in substitution therefor.
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent. If, at any time, the Securities Depository ceases
to hold the Bonds, with the effect that the Bonds are no longer
subject to the Book-Entry System, then the Issuer and the
Trustee, acting at the request of the Company, may appoint one or
more banks or trust companies to act as paying agent and/or
tender agent for the Bonds hereunder. Any such paying agent or
tender agent shall be a bank or trust company organized under the
laws of the United States of America or any state thereof, shall
have a reported capital and surplus of at least $100,000,000 and
a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform
such duties and responsibilities as may be delegated to it
hereunder. If such a paying agent or tender agent is appointed,
then all references herein to the "Trustee" shall include such
paying agent or tender agent to the extent of the duties
performed by such entity.
Section 13.04. Limitation of Rights. Nothing expressed or
implied in this Indenture or the Bonds shall give any person
other than the Trustee, Issuer, Company, Remarketing Agent and
the Bondholders any right, remedy or claim under or with respect
to this Indenture.
Section 13.05. 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
whatsoever.
Section 13.06. Payments Due on Non-Business Days. If a
payment date is not a Business Day at the place of payment, then
payment may be made at that place on the next Business Day, and
no interest shall accrue for the intervening period.
50<PAGE>
Section 13.07. Governing Law. This Indenture shall be
governed exclusively by and construed in accordance with the
applicable laws of the State.
Section 13.08. Captions. The captions in this Indenture are
for convenience only and do not define or limit the scope or
intent of any provisions or Sections of this Indenture.
Section 13.09. 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.
Section 13.10. Counterparts. This Indenture may be signed
in several counterparts. Each will be an original, but all of
them together constitute the same instrument.
51<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 Bank South, 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
[SEAL] MONROE COUNTY
By: /s/James A. Vaughn
Chairman
Attest:
/s/Marvin T. Carr, Jr.
Secretary
BANK SOUTH, as Trustee
[SEAL] By: /s/Bronwyn B. Fowlkes
Title: Vice President
Attest:
/s/Edward S. Linsley
Title: Vice President<PAGE>
Exhibit A
UNITED STATES OF AMERICA
STATE OF GEORGIA
No. R-1 $45,000,000
DEVELOPMENT AUTHORITY
OF MONROE COUNTY (GEORGIA)
POLLUTION CONTROL REVENUE BOND
(GEORGIA POWER COMPANY PLANT SCHERER PROJECT)
FIRST SERIES 1995
TYPE OF INTEREST
MATURITY DATE DATED DATE CUSIP RATE PERIOD
July 1, 2025 July 13, 1995 610 530 CQ 8 Daily
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $45,000,000
Development Authority of Monroe County (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 sources
described in this Bond, to the Registered Owner identified above,
or registered assigns, on the Maturity Date stated above (or if
this Bond is called for earlier redemption as described herein,
on the redemption date) the principal amount identified above and
to pay interest as provided in this Bond.
1. Indenture; Agreement. This Bond is one of the bonds
(the "Bonds"), limited to $45,000,000 in principal amount, issued
under the Trust Indenture dated as of July 1, 1995 (the
"Indenture"), between the Issuer and Bank South, as trustee (the
"Trustee"). The terms of the Bonds include those in the
Indenture. Bondholders are referred to the Indenture for a
statement of those terms. When used with reference to the Bonds,
the term "principal" includes any premium payable on those Bonds.
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Indenture.
The Issuer has entered into a Loan Agreement dated as of
July 1, 1995 (the "Agreement") with Georgia Power Company, a
Georgia corporation (the "Company"). Under the provisions of the
Agreement the Issuer has loaned the proceeds of the Bonds of this
series to the Company (the "Loan"). In order to evidence the
Loan and the Company's obligation to repay the same, the Company
53<PAGE>
has executed and delivered its non-negotiable promissory note
(the "Note"). The Note provides for the repayment by the Company
of the Loan, including interest thereon, in installments
sufficient to pay the principal of, purchase price 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
(as hereinafter defined). The Note provides that the payments
thereunder shall be paid directly to the Trustee as assignee of
the Issuer. The Issuer has assigned its rights to such payments
under the Agreement and the Note to the Trustee as security for
the Bonds. The proceeds of the Bonds will be used to refund
certain outstanding revenue bonds issued to finance the interest
of the Company in certain air and water pollution control and
sewage and solid waste disposal facilities (the "Project")
located at the Scherer steam electric generating plant (the
"Plant") in Monroe County, Georgia. The Company has issued its
First Mortgage Bonds, First Pollution Control Series due July 1,
2025 in the aggregate principal amount of $45,000,000 (the "First
Mortgage Bonds") pursuant to the Indenture dated as of March 1,
1941 from the Company to Chemical Bank, as trustee, as
supplemented and amended (the "Company Indenture"), to evidence
and secure its obligation to pay the amounts due under the Note.
The Indenture, the Agreement and the Note may be amended,
and references to them include any amendments.
The Issuer has established a book-entry only system of
registration for the Bonds (the "Book-Entry System"). Except as
specifically provided otherwise in the Indenture, a Securities
Depository (or its nominee) will be the registered owner of this
Bond. By acceptance of a confirmation of purchase, delivery or
transfer, the Beneficial Owner (if any) of this Bond shall be
deemed to have agreed to this arrangement. If the Securities
Depository (or its nominee) is the registered owner of this Bond,
it shall be treated as the owner of it for all purposes.
2. Source of Payments. The principal of, premium, if any,
and interest on the Bonds are limited obligations of the Issuer
and, as provided in the Indenture, are payable solely and only
from payments derived from the Agreement and the Note, or from
the First Mortgage Bonds, and from any other moneys held by the
Trustee under the Indenture for such purpose. 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 resolutions adopted by the Issuer on August 31,
1994, and July 11, 1995, which resolutions authorize the
execution and delivery of the Agreement and the Indenture. The
Bonds and the interest thereon are limited special obligations of
the Issuer and are payable solely from the revenues and other
amounts derived from the Agreement, Note and First Mortgage Bonds
54<PAGE>
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 Note 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 for the account of the
Issuer and deposited in a special trust account created by the
Issuer and have been duly pledged and assigned for that 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 the Bonds the 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.
3. Interest Rate. Interest on this Bond will be paid at
the lesser of (a) a Daily Rate, a Weekly Rate, a Commercial Paper
Rate or a Long-Term Interest Rate as selected by the Company and
as determined in accordance with the Indenture and (b) 15%.
Interest will initially be payable at a Daily Rate as set forth
in the Indenture. The Company may change the interest rate
determination method from time to time. A change in the method
will result in mandatory redemption of the Bonds (see
"Redemption" below). While there exists an Event of Default
under the Indenture, the interest rate on the Bonds will be the
rate on the Bonds on the day before the Event of Default
occurred, except that if interest on any Bond was then payable at
a Commercial Paper Rate, the interest rate for all Bonds then
bearing interest at a Commercial Paper Rate will be the highest
Commercial Paper Rate then in effect for any Bond.
When interest is payable at a Daily, Weekly or Commercial
Paper Rate, it will be computed on the basis of the actual number
of days elapsed over a year of 365 days (366 in leap years), and
when payable at a Long-Term Interest Rate on the basis of a 360-
day year of twelve 30-day months. Interest on overdue principal
and, to the extent lawful, on overdue premium and interest will
be payable at the rate on the Bonds on the day before the default
occurred.
4. Interest Payment and Record Dates. Interest will
accrue on the unpaid portion of the principal of this Bond from
55<PAGE>
the Dated Date stated above and thereafter from the Interest
Payment Date (as hereinafter defined) next preceding the date of
authentication hereof to which interest has been paid or duly
provided for, unless the date of authentication hereof is an
Interest Payment Date to which interest has been paid or duly
provided for, in which case from the date of authentication
hereof, or unless no interest has been paid or duly provided for
on the Bonds of this series, in which case from said Dated Date;
provided, however, that if the date of authentication is between
the Record Date (as hereinafter defined) for any Interest Payment
Date and such Interest Payment Date, then interest will accrue
from such Interest Payment Date or, if the Company shall default
in payment of the interest due on such Interest Payment Date,
then from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or if no interest
has been paid or duly provided for, then from said Dated Date.
When interest is payable at the rate in the first column below,
interest accrued during the period (an "Interest Period") shown
in the second column will be paid on the date (an "Interest
Payment Date") in the third column to holders of record on the
date (a "Record Date") in the fourth column:
56<PAGE>
INTEREST
RATE INTEREST PERIOD PAYMENT DATE RECORD DATE
Daily* Calendar month Fifth Last Business
Business Day Day
of the next of the month
month
Weekly * Calendar month First Last Business
Business Day Day
of the next before
month Interest
Payment Date
Commercial From 1 to 365 Day after the Last Business
Paper days last Day
as determined for day of before
each Bond Commercial Interest
pursuant to Paper Period Payment Date
Section
2.02(a)(3) of
the Indenture
("Commercial
Paper
Period")
* If there shall be a change from a Daily Rate or a Weekly
Rate on a day other than the first day of a calendar month, the
then current Interest Period relating to such Daily Rate or
Weekly Rate shall end on the day immediately preceding the date
on which the new interest rate on the Bonds shall become
effective, which date in the case of a change from a Weekly Rate,
shall be the Interest Payment Date for such Interest Period, for
which the Record Date shall be the immediately preceding Business
Day; but in the case of a change from a Daily Rate, the Interest
Payment Date for such Interest Period shall be the fifth Business
Day after the last day of such Interest Period, for which the
Record Date shall be the last Business Day of such Interest
Period. If such new interest rate shall be a Daily Rate or a
Weekly Rate, the first Interest Period relating thereto shall
begin on the effective date of such new interest rate and end on
the last day of the then current calendar month, for which the
Interest Payment Date and the Record Date shall be as prescribed
in this Table.
57<PAGE>
INTEREST
RATE INTEREST PERIOD PAYMENT DATE RECORD DATE
Long-Term** Six-month period Next day Fifteenth of
or (January 1 the
portion thereof or July 1) month before
ending December the
31 or Interest
June 30 Payment
Date
(December 15
or
June 15) ***
"Business Day" is defined in the Indenture. Payment of defaulted
interest will be made to holders of record as of the fifth-to-
last Business Day before payment.
5. Method of Payment. Holders must surrender Bonds to the
Trustee to collect principal at maturity or upon redemption.
(See "Tenders" below for the payment of purchase price of
tendered Bonds.) Interest on Bonds bearing interest at a
Commercial Paper Rate is payable only upon presentation of such
Bonds to the Trustee. Interest on Bonds bearing interest at a
Daily, Weekly or Long-Term Interest Rate will be paid to the
registered holder hereof as of the Record Date by check mailed by
first-class mail on the Interest Payment Date to such holder's
registered address. A holder of $1,000,000 or more in principal
**If there shall be a change from a Long-Term Interest Rate
on a day other than the day after the last day of the then
current Long-Term Interest Rate Period, or if there shall be an
early termination of such Long-Term Interest Rate Period and a
new Long-Term Interest Rate shall be set, such Long-Term Interest
Rate Period shall end on the day immediately preceding the date
on which the new interest rate shall become effective, which date
shall be the Interest Payment Date for such Long-Term Interest
Rate Period, for which the Record Date shall be 15 days prior to
such Interest Payment Date or, if sooner, the first day of such
Long-Term Interest Rate Period. If such new interest rate shall
be a Daily Rate or a Weekly Rate, the first Interest Period
relating thereto shall begin on the effective date of such new
interest rate and end on the last day of the then current
calendar month, for which the Interest Payment Date and the
Record Date shall be as prescribed in this Table.
***If an Interest Payment Date occurs less than 15 days after
the first day of a Long-Term Interest Rate Period, the first day
of such Long-Term Interest Rate Period is the Record Date for
such Interest Payment Date.
58<PAGE>
amount of Bonds may be paid interest at a Daily, Weekly or
Commercial Paper Rate by wire transfer in immediately available
funds to an account in the continental United States if the
holder makes a written request of the Trustee (in form
satisfactory to the Trustee) at least two Business Days before
the Record Date specifying the account address. The notice may
provide that it will remain in effect for later interest payments
until changed or revoked by another written notice. Principal
and interest will be paid in money of the United States that at
the time of payment is legal tender for payment of public and
private debts or by checks or wire transfers payable in such
money. If any payment on the Bonds is due on a non-Business Day,
it will be made on the next Business Day, and no interest will
accrue as a result.
6. Tenders. "Tender" means to require, or the act of
requiring, the Trustee to purchase a Bond at the holder's option
under the provisions of this Section 6 at 100% of the principal
amount plus interest accrued to the date of purchase. During a
Daily Rate Period, if a Bond is tendered after the Record Date
and before the Interest Payment Date for that Interest Period,
the Trustee will pay (but only from funds available therefor as
provided in the Indenture) a purchase price of principal plus
interest accruing after the last day of that Interest Period.
The holder will receive interest for that Interest Period by
check or wire transfer as described in Section 5 above.
Daily Rate Tender. When interest on the Bonds is
payable at a Daily Rate and a Book-Entry System is in
effect, a Beneficial Owner (through its direct Participant
in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable
written notice or an irrevocable telephone notice, promptly
confirmed in writing, to the Trustee (any such telephone
notice to be delivered to a trust officer of the Trustee)
and an irrevocable notice by telephone, telegraph or
facsimile transmission to the Remarketing Agent, in each
case by 11:00 a.m., New York City time, on a Business Day,
stating the principal amount of the Bond (or portion of
Bond) being tendered, payment instructions for the purchase
price and the Business Day (which may be the date the notice
is delivered) the Bond (or portion of Bond) is to be
purchased. The Beneficial Owner shall effect delivery of
such Bonds by causing such direct Participant to transfer
its interest in the Bonds equal to such Beneficial Owner's
interest on the records of the Securities Depository to the
participant account of the Trustee with the Securities
Depository. Any notice received by the Trustee after 11:00
a.m., New York City time, shall be deemed to have been given
on the next Business Day.
59<PAGE>
When interest on the Bonds is payable at a Daily Rate
and a Book-Entry System is not in effect, a holder of a Bond
may tender the Bond (or portion of Bond) by delivering the
notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the
Bond to the Trustee by 1:00 p.m., New York City time, on the
date of purchase (see additional requirements below).
Weekly Rate Tender. When interest on the Bonds is
payable at a Weekly Rate and a Book-Entry System is in
effect, a Beneficial Owner (through its direct Participant
in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable
written notice or an irrevocable telephone notice, promptly
confirmed in writing, to the Trustee (any such telephone
notice to be delivered to a trust officer of the Trustee)
and an irrevocable notice by telephone, telegraph or
facsimile transmission to the Remarketing Agent, in each
case prior to 5:00 p.m., New York City time on a Business
Day stating the principal amount of the Bond (or portion of
Bond) being tendered, payment instructions for the purchase
price, and the date, which must be a Business Day at least
seven days after the notice is delivered, on which the Bond
(or portion of Bond) is to be purchased. The Beneficial
Owner shall effect delivery of such Bonds by causing such
direct Participant to transfer its interest in the Bonds
equal to such Beneficial Owner's interest on the records of
the Securities Depository to the participant account of the
Trustee with the Securities Depository.
When interest on the Bonds is payable at a Weekly Rate
and a Book-Entry System is not in effect, a holder of a Bond
may tender the Bond (or portion of Bond) by delivering the
notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the
Bond to the Trustee by 1:00 p.m., New York City time, on the
date of purchase (see additional requirements below).
Payment of Purchase Price. The purchase price for a
tendered Bond will be paid in immediately available funds to the
registered owner of the Bond by the close of business on the date
of purchase.
7. Delivery Address; Additional Delivery Requirements.
Notices in respect of tenders and Bonds tendered must be
delivered to the Trustee as follows:
60<PAGE>
Bank South
3350 Cumberland Circle, Suite 10-681
Atlanta, Georgia 30339
Attention: Corporate Trust Department
Telephone: (404) 989-6381
Fax: (404) 989-6259
Notices in respect of tenders shall be delivered to the
Remarketing Agent as follows:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Attention: Municipal Syndicate Director
Telephone: (212) 648-0913
Fax: (212) 648-5916
The delivery addresses or telephone numbers of the Trustee or the
Remarketing Agent may be changed by notice mailed by first class
mail to the Bondholders at their registered addresses.
All tendered Bonds must be accompanied by an instrument of
transfer satisfactory to the Trustee, executed in blank by the
registered owner or his duly authorized attorney, with the
signature guaranteed by an eligible guarantor institution.
Limitation on Tenders. No Bonds may be tendered while they
bear interest at a Commercial Paper Rate or a Long-Term Interest
Rate.
Irrevocable Notice Deemed to be Tender of Bond; Undelivered
Bonds. The giving of notice by the registered owner of a Bond as
provided in Section 6 constitutes the irrevocable tender for
purchase of each Bond (or portion) with respect to which such
notice was given, irrespective of whether such Bond was delivered
as provided in Section 6. The determination of the Trustee as to
whether a notice of tender has been properly delivered shall be
conclusive and binding upon the Bondholders.
The Trustee may refuse to accept delivery of any Bond for
which a proper instrument of transfer has not been provided. If
any owner of a Bond who gave notice fails to deliver his Bond to
the Trustee at the place and on the applicable date and time
specified, or fails to deliver his Bond properly endorsed, his
Bond shall constitute an undelivered Bond as described in the
Indenture. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL
AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE TRUSTEE AFTER
THE GIVING OF IRREVOCABLE NOTICE OF TENDER FOR PURCHASE AS
DESCRIBED ABOVE.
61<PAGE>
8. Redemptions. As provided below, the Company has the
right to purchase Bonds in lieu of certain redemptions. BY
ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER
THIS BOND, PROPERLY ENDORSED, TO THE COMPANY IN LIEU OF
REDEMPTION UNDER THE CONDITIONS DESCRIBED BELOW. All redemptions
and purchases in lieu of redemption will be made in funds
immediately available on the redemption or purchase date and will
be at a redemption or purchase price of 100% of the principal
amount of the Bonds being redeemed or purchased (unless a premium
is required as provided below) plus interest accrued to the
redemption or purchase date, except that interest accruing at a
Daily Rate will be paid on the fifth Business Day following the
redemption or purchase date. Bonds tendered for purchase on a
date after a call for redemption but before the redemption date
will be purchased pursuant to the tender. No purchase of Bonds
by the Company or advance use of any funds to effectuate any such
purchase shall be deemed to be a payment or redemption of the
Bonds or of any portion thereof and such purchase will not
operate to extinguish or discharge the indebtedness evidenced by
such Bonds.
Optional Redemption at a Premium During Long-Term Interest
Rate Period. During any Long-Term Interest Rate Period, if the
Long-Term Interest Rate Period is less than or equal to five
years, the Bonds will not be redeemable pursuant to this
provision during the Long-Term Interest Rate Period.
If the Long-Term Interest Rate Period is greater than five
years, the Bonds will not be redeemable for five years after the
date on which the Bonds begin to bear interest at the Long-Term
Interest Rate. After the five year no-call period, the Bonds may
be redeemed at any time in whole or in part at 102% of their
principal amount. The premium will decline every year on the
anniversary of the date on which the Bonds begin to bear interest
at the Long-Term Interest Rate, by one percentage point until the
Bonds are redeemable without premium.
As an alternative to and in lieu of the foregoing redemption
provisions, if, with respect to any Long-Term Interest Rate
Period, a Favorable Opinion of Tax Counsel is delivered to the
Trustee not later than the date of the establishment of such
Long-Term Interest Rate Period, the Bonds may be redeemed during
such Long-Term Interest Rate Period at the option of the Company
in whole or in part at any time after a no-call period, if any,
established by the Remarketing Agent, at the percentages of their
principal amount, plus accrued interest, as follows: the
Remarketing Agent shall, given the duration of the Long-Term
Interest Rate Period, determine and inform the Trustee and the
Company, on a date which is no later than the establishment of
the Long-Term Interest Rate, the periods during which the Bonds
shall not be subject to redemption (the "Call Protection
Period"), the redemption premium or premiums (the "Call
62<PAGE>
Premiums"), if any, applicable to the redemption of Bonds after
the Call Protection Period, and the period or periods during
which the Call Premiums shall be effective (the "Call Premium
Periods") necessary to establish the Long-Term Interest Rate.
Such Call Protection Period, Call Premiums and Call Premium
Periods shall be established in accordance with optional call
redemption provisions which, in the judgment of the Remarketing
Agent, are generally accepted as the standard features for
obligations such as the Bonds, given the length of the Long-Term
Interest Rate Period.
Extraordinary Optional 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
which results in the imposition of unreasonable burdens or
excessive liabilities with respect to the Project or the
Plant, 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 the 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 the
Plant as an efficient generating facility uneconomical; or
(iii) The Project or the 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 the
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.
Optional Redemption During Daily or Weekly Rate Period.
When interest on the Bonds is payable at a Daily or Weekly Rate,
the Bonds may be redeemed in whole or in part at the option of
the Company, on any Business Day.
Mandatory Redemption at Beginning of a New Long-Term
Interest Rate Period. When the Bonds bear interest at a Long-
Term Interest Rate and a new Long-Term Interest Rate is to be
determined, the Bonds will be redeemed or purchased by the
63<PAGE>
Company in lieu of redemption on the effective date of the new
Long-Term Interest Rate. In the case of a change prior to the
day originally established as the day after the last day of a
Long-Term Interest Rate Period, the Bonds will be redeemed or
purchased at the percentage of their principal amount which would
be payable upon the applicable redemption described under
"Optional Redemption at a Premium During Long-Term Interest Rate
Period" above.
Mandatory Redemption on Each Interest Payment Date During
Commercial Paper Mode. When Bonds bear interest at a Commercial
Paper Rate, each Bond will be redeemed or purchased by the
Company in lieu of redemption on the Interest Payment Date for
such Bond. If Bonds are scheduled to be redeemed under the
following paragraph, the Bonds will be called under, and
redemption will be governed by, that paragraph and not this
paragraph.
Mandatory Redemption Upon a Change in the Method of
Determining the Interest Rate on the Bonds. On the effective
date of the change in the method of determining the interest rate
on the Bonds (the four methods being Daily, Weekly, Commercial
Paper or Long-Term Interest Rates) the Bonds will be redeemed or
purchased by the Company in lieu of redemption on the effective
date of such change. Any such redemption or purchase shall be at
a price equal to 100% of the principal amount of the Bonds,
except that in the case of a change prior to the day originally
established as the day after the last day of a Long-Term Interest
Rate Period, the Bonds will be redeemed or purchased at the
percentage of their principal amount which would be payable upon
the applicable redemption described under "Optional Redemption at
a Premium During Long-Term Interest Rate Period" above.
Notice of Redemption. At least 30 days before each
redemption (except "Mandatory Redemption on Each Interest Payment
Date During Commercial Paper Mode" described above, for which no
notice will be given), the Trustee will mail a notice of
redemption by first-class mail to each Bondholder at the holder's
registered address. Failure to give any required notice of
redemption as to any particular Bonds, or any defect therein,
will not affect the validity of the call for redemption of any
Bonds in respect of which no failure or defect occurs. Any
notice mailed as provided in this paragraph shall be effective
when sent and will be conclusively presumed to have been given
whether or not actually received by the addressee.
Effect of Notice of Redemption. When notice of redemption
is required and given, and when Bonds are to be redeemed without
notice, Bonds called for redemption become due and payable on the
redemption date at the applicable redemption price, subject to
the Company's right to purchase Bonds as provided above; in such
case when funds are deposited with the Trustee sufficient for
64<PAGE>
redemption or for purchase, interest on the Bonds to be redeemed
or purchased ceases to accrue as of the date of redemption or
purchase.
9. Denominations; Transfer; Exchange. The Bonds may be
issued in registered form without coupons in denominations as
follows: (1) when interest is payable at a Daily, Weekly or
Commercial Paper Rate, $100,000 or any integral multiple thereof;
and (2) when interest is payable at a Long-Term Interest Rate,
$5,000 and integral multiples of $5,000 thereafter. A holder may
register the transfer of or exchange Bonds in accordance with the
Indenture. The Trustee may require a holder, among other things,
to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the
Indenture. Except in connection with the purchase of Bonds
tendered for purchase or purchased in lieu of redemption, the
Trustee will not be required to register the transfer of or
exchange any Bond which has been called for redemption or during
the period beginning 15 days before the mailing of notice calling
the Bonds or any portion of the Bonds for redemption and ending
on the redemption date.
10. Persons Deemed Owners. The registered holder of this
Bond shall be treated as the owner of it for all purposes.
11. Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the account of the Company 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.
12. Discharge Before Redemption or Maturity. If the
Company at any time deposits with the Trustee money or Government
Obligations as described in the Indenture sufficient to pay at
redemption or maturity principal of and interest on the
outstanding Bonds, and if the Company also pays all other sums
then payable by the Company under the Indenture, the lien of the
Indenture will be discharged. After discharge, Bondholders must
look only to the deposited money and securities for payment.
65<PAGE>
Government Obligations are securities backed by the faith and
credit of the United States or securities evidencing ownership
interest in such full-faith and credit securities.
13. Amendment, Supplement, Waiver. Subject to certain
exceptions, the Indenture, the Agreement or the Bonds may be
amended or supplemented, and any past default or compliance with
any provision may be waived, with the consent of the holders of a
majority in principal amount of the Bonds then outstanding. Any
such consent shall be irrevocable and shall bind any subsequent
owner of this Bond or any Bond delivered in substitution for this
Bond. Without the consent of any Bondholder, the Issuer may
amend or supplement the Indenture, the Agreement or the Bonds as
described in the Indenture, among other things, to cure any
ambiguity, omission, defect or inconsistency, to provide for
uncertificated Bonds in addition to or in place of certificated
Bonds, to provide for a Book-Entry System for the Bonds or to
make any change that does not materially adversely affect the
rights of any Bondholder.
14. Defaults and Remedies. The Indenture provides that the
occurrences of certain events constitute Events of Default. If
an Event of Default occurs and is continuing, the Bonds may
become or may be declared immediately due and payable, as
provided in the Indenture. An Event of Default and its
consequences may be waived as provided in the Indenture.
Bondholders may not enforce the Indenture or the Bonds except as
provided in the Indenture. Except as specifically provided in
the Indenture, the Trustee may refuse to enforce the Indenture or
the Bonds unless it receives indemnity satisfactory to it.
Subject to certain limitations, holders of a majority in
principal amount of the Bonds then outstanding may direct the
Trustee in its exercise of any trust or power.
15. No Recourse Against Others. A member, director,
officer or employee, as such, of the Issuer shall not have any
liability for any obligations of the Issuer or the Company under
the Bonds or the Indenture or for any claim based on such
obligations or their creation. Each Bondholder by accepting a
Bond waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Bond.
16. Authentication. This Bond shall not be valid or become
obligatory for any purpose or be entitled to any security or
benefit under the Indenture until the certificate of
authentication hereon shall have been duly executed by the
Trustee.
17. Abbreviations. Customary abbreviations may be used in
the name of a Bondholder or an assignee, such as TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN
(= joint tenants with right of survivorship and not as tenants in
66<PAGE>
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
A copy of the Indenture may be inspected at the corporate
trust office of the Trustee located at 3350 Cumberland Circle,
Suite 10-681, Atlanta, Georgia 30339.
67<PAGE>
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law.
IN WITNESS WHEREOF the Development Authority of Monroe
County has caused this Bond to be executed in its name by its
Chairman or Vice Chairman by his manual or facsimile signature
and attested by the manual or facsimile signature of its
Secretary or Assistant Secretary and its corporate seal to be
hereunto affixed or printed hereon.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
Chairman
Attest:
Secretary
68<PAGE>
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.
BANK SOUTH
as Trustee
Date: July 13, 1995 By:
Authorized Signature
STATE OF GEORGIA
COUNTY OF MONROE
The undersigned, Clerk of the Superior Court of Monroe
County, Georgia, hereby certifies that the within First Series
1995 Bond was validated and confirmed by judgment of the Superior
Court of Monroe County, Georgia rendered on the 19th day of
September, 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
69<PAGE>
The following abbreviations, when used in the inscription on the
face of the within Bond, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM- as tenants UNIF GIFT MIN ACT-_______ Custodian________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used though not in list
above.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers
unto ____________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________
_________________________________________________________________
(Name and Address of Assignee)
_________________________________________________________________
the within Bond and does hereby irrevocably constitute and
appoint ______________________ attorney to transfer the said Bond
on the books kept for registration thereof with full power of
substitution in the premises.
Dated:_____________________________
Signature guaranteed:
______________________________ ______________________________
NOTICE: The signature to this
Medallion Number:_____________ assignment must correspond
*Signature(s) must be with the name of the
guaranteed by an eligible registered owner as it appears
guarantor institution which is upon the face of the within
a member of a recognized Bond in every particular,
signature guarantee program, without alteration or
i.e. Securities Transfer enlargement or any change
Agents Medallion Program whatever.
(STAMP), or New York Stock
Exchange Medallion Signature
Program (MSP).
70<PAGE>
EXHIBIT D
DEVELOPMENT AUTHORITY OF MONROE COUNTY
to
BANK SOUTH,
as Trustee
TRUST INDENTURE
Dated as of July 1, 1995
Relating to
$40,000,000
Pollution Control Revenue Bonds
(Georgia Power Company Plant Scherer Project)
Second Series 1995<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions . . . . . . . . . . . . . . . . 3
Section 1.02. Rules of Construction . . . . . . . . . . . 8
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating . . . . . . 8
Section 2.02. Interest on the Bonds . . . . . . . . . . . 8
Section 2.03. Execution and Authentication . . . . . . . 16
Section 2.04. Bond Register . . . . . . . . . . . . . . . 17
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners . . . . . . . . . . . . . 17
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds . . . . . . . . . . . . . 18
Section 2.07. Cancellation of Bonds . . . . . . . . . . . 18
Section 2.08. Temporary Bonds . . . . . . . . . . . . . . 18
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee . . . . . . . . . . . . 19
Section 3.02. Redemption Dates . . . . . . . . . . . . . 19
Section 3.03. Selection of Bonds to Be Redeemed . . . . . 19
Section 3.04. Redemption Notices . . . . . . . . . . . . 19
Section 3.05. Payment of Bonds Called for Redemption . . 21
Section 3.06. Bonds Redeemed in Part . . . . . . . . . . 21
Section 3.07. Purchase of Bonds in Lieu of Redemption . . 21
Section 3.08. Disposition of Purchased Bonds . . . . . . 22
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds . . . . . . . . . . 24
Section 4.02. Payment of Bonds . . . . . . . . . . . . . 24
Section 4.03. Investments of Moneys . . . . . . . . . . . 25
Section 4.04. Moneys Held in Trust; Unclaimed Funds . . . 26
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System . . . . . . . . . . . . . 26
i<PAGE>
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds . . . . . . . . . . . . . 28
Section 6.02. Performance of Covenants; Issuer . . . . . 28
Section 6.03. Recording and Filing; Further Assurances . 29
Section 6.04. Tax Covenants . . . . . . . . . . . . . . . 29
Section 6.05. Rights Under Agreement . . . . . . . . . . 30
Section 6.06. Designation of Additional Paying Agents . . 30
Section 6.07. Existence of Issuer . . . . . . . . . . . . 30
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture . 30
Section 7.02. Application of Trust Money . . . . . . . . 32
Section 7.03. Repayment to Company . . . . . . . . . . . 32
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default . . . . . . . . . . . . . 32
Section 8.02. Acceleration . . . . . . . . . . . . . . . 32
Section 8.03. Other Remedies . . . . . . . . . . . . . . 33
Section 8.04. Legal Proceeding by Trustee . . . . . . . . 33
Section 8.05. Appointment of Receivers . . . . . . . . . 34
Section 8.06. Waiver of Past Defaults . . . . . . . . . . 34
Section 8.07. Control by Majority . . . . . . . . . . . . 35
Section 8.08. Limitation on Suits . . . . . . . . . . . . 35
Section 8.09. Rights of Holders to Receive Payment . . . 35
Section 8.10. Collection Suit by Trustee . . . . . . . . 36
Section 8.11. Trustee May File Proofs of Claim . . . . . 36
Section 8.12. Priorities . . . . . . . . . . . . . . . . 36
Section 8.13. Undertaking for Costs . . . . . . . . . . . 36
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
Section 9.01. Acceptance of the Trusts . . . . . . . . . 37
Section 9.02. Fees, Charges and Expenses of Trustee . . . 40
Section 9.03. Notice to Bondholders if an Event of Default
Occurs . . . . . . . . . . . . . . . . . . 40
Section 9.04. Intervention by Trustee . . . . . . . . . . 40
Section 9.05. Successor Trustee . . . . . . . . . . . . . 40
Section 9.06. Resignation by Trustee . . . . . . . . . . 41
Section 9.07. Removal of Trustee . . . . . . . . . . . . 41
Section 9.08. Appointment of Successor Trustee . . . . . 41
ii<PAGE>
Section 9.09. Concerning Any Successor Trustee . . . . . 41
Section 9.10. Successor Trustee as Bond Registrar and
Paying Agent . . . . . . . . . . . . . . . 42
Section 9.11. Trustee and Issuer Required to Accept
Directions and Actions of Company . . . . . 42
Section 9.12. No Transfer of Note or First Mortgage Bonds
Held by the Trustee; Exception . . . . . . 42
Section 9.13. Filing of Certain Continuation Statements . 43
Section 9.14 Duties of Remarketing Agent . . . . . . . . 43
Section 9.15 Eligibility of Remarketing Agent . . . . . 43
Section 9.16 Replacement of Remarketing Agent . . . . . 43
Section 9.17. Compensation of Remarketing Agent . . . . . 44
Section 9.18. Successor Remarketing Agent . . . . . . . . 44
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders . . . . . . 44
Section 10.02. With Consent of Bondholders . . . . . . . . 45
Section 10.03. Effect of Consents . . . . . . . . . . . . 46
Section 10.04. Notation on or Exchange of Bonds . . . . . 46
Section 10.05. Signing by Trustee of Amendments and
Supplements . . . . . . . . . . . . . . . . 46
Section 10.06. Company Consent Required . . . . . . . . . 46
Section 10.07. Notice to Bondholders . . . . . . . . . . . 46
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
OR FIRST MORTGAGE BOND
Section 11.01. Without Consent of Bondholders . . . . . . 46
Section 11.02. With Consent of Bondholders . . . . . . . . 47
Section 11.03. Consents by Trustee to Amendments or
Supplements . . . . . . . . . . . . . . . . 47
ARTICLE XII
VOTING OF FIRST MORTGAGE BOND
Section 12.01. Voting of Mortgage Bond Held by the
Trustee . . . . . . . . . . . . . . . . . . 47
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices . . . . . . . . . . . . . . . . . . 48
Section 13.02. Bondholders' Consents . . . . . . . . . . . 48
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent . . . . . . . . . . . . . . . 49
iii<PAGE>
Section 13.04. Limitation of Rights . . . . . . . . . . . 49
Section 13.05. Severability . . . . . . . . . . . . . . . 49
Section 13.06. Payments Due on Non-Business Days . . . . . 49
Section 13.07. Governing Law . . . . . . . . . . . . . . . 50
Section 13.08. Captions . . . . . . . . . . . . . . . . . 50
Section 13.09. No Liability of Officers . . . . . . . . . 50
Section 13.10. Counterparts . . . . . . . . . . . . . . . 50
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . 51
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . Form of Bond
iv<PAGE>
TRUST INDENTURE
THIS INDENTURE made and entered into as of July 1, 1995, 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
BANK SOUTH, a Georgia banking corporation duly organized,
existing and authorized to accept and execute trusts of the
character herein set out under and by virtue of the laws of
Georgia, 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 July 1, 1995 (the
"Agreement") with Georgia Power Company (the "Company") providing
for the undertaking by the Issuer to loan amounts to the Company
in order 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 air and water
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),
Second Series 1995, in the aggregate principal amount of
$40,000,000 (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 the Bonds, a non-negotiable
promissory note in a like principal amount bearing interest at
the rate or rates borne by the Bonds; and that as security for
its obligation to pay the promissory note the Company will
deliver to the Trustee, concurrently with the issuance of the
Bonds, first mortgage bonds issued under and secured by the
Company Indenture (as hereinafter defined) in accordance with
Section 3.4 of the Agreement.
C. The execution and delivery of this Indenture (as
hereinafter defined) and the Agreement and the issuance and sale
of the Bonds have been in all respects duly and validly
authorized by resolution duly adopted by the Issuer.
D. The Company has agreed to make payments on the
aforementioned promissory note to the Issuer in amounts
sufficient to pay the principal, purchase price, premium, if any,
and interest on the Bonds, all as hereinafter defined.<PAGE>
E. The Trustee has accepted the trusts created by this
Indenture and in evidence thereof has joined in the execution
hereof.
Accordingly, the Issuer and the Trustee agree as follows for
the benefit of each other and for the benefit of the holders of
the Bonds issued pursuant to this Indenture.
GRANTING CLAUSE
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 Bonds and the
Company's First Mortgage Bonds, First Pollution Control Series
due July 1, 2025; 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 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 interests of the Issuer in, to and under the Agreement
and all moneys receivable thereunder (except for Unassigned
Rights, as defined herein) 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
2<PAGE>
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
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 owners, from time to time, of said Bonds, or part
thereof, as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. For all purposes of this Inden-
ture, unless the context requires otherwise, the following terms
shall have the following meanings:
"Act" means the Development Authorities Law as set forth in
O.C.G.A. Section 36-62-1, et seq., as amended.
"Agreement" means the Loan Agreement dated as of July 1,
1995, between the Issuer and the Company, as amended and
supplemented from time to time.
"Beneficial Owner" means the purchaser of a beneficial
interest in the Bonds when the Bonds are held by the Securities
Depository in the Book-Entry System, and otherwise means a
Bondholder.
3<PAGE>
"Bondholder" or "holder" means the registered owner of any
Bond.
"Bonds" means the Pollution Control Revenue Bonds (Georgia
Power Company Plant Scherer Project), Second Series 1995 issued
by the Issuer hereunder in the aggregate principal amount of
$40,000,000.
"Book-Entry System" means the system maintained by the
Securities Depository described in Section 5.01.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) a day on which commercial banks in New York, New
York, Atlanta, Georgia, or the city in which the principal
corporate trust office of the Trustee is located, are authorized
by law to close or (iii) a day on which the New York Stock
Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended,
and the Treasury regulations thereunder.
"Commercial Paper Mode" means each period of time, comprised
of Commercial Paper Periods, during which Commercial Paper Rates
are in effect.
"Commercial Paper Period" means, with respect to any Bond,
each period set under Section 2.02(a)(3).
"Commercial Paper Rate" means the interest rate on each Bond
set under Section 2.02(a)(3).
"Company" means Georgia Power Company, a Georgia
corporation, and its successors and assigns, and any surviving,
resulting or transferee entity as provided in Section 4.3 of the
Agreement.
"Company Indenture" means the Indenture dated as of March 1,
1941 between the Company and Chemical Bank, as trustee, as
amended and supplemented from time to time.
"Credit Agreement" means the Revolving Credit and Term Loan
Letter dated as of July 13, 1995, between the Company and Bank of
America National Trust and Savings Association arranged by the
Company pursuant to the provisions of Section 3.6 of the
Agreement, or any line of credit or similar facility or
facilities that the Company may enter into in substitution or
replacement of such Revolving Credit and Term Loan Letter from
time to time and that expressly provides that funds obtained
thereunder may be used only to pay the purchase price (including
accrued interest, if any) of Bonds.
4<PAGE>
"Daily Rate" means an interest rate on the Bonds set under
Section 2.02(a)(l).
"Event of Default" is defined in Section 8.01.
"Favorable Opinion of Tax Counsel" means an Opinion of Tax
Counsel addressed to the Issuer and to the Trustee to the effect
that the action proposed to be taken is permitted by the laws of
the State and by this Indenture and will not adversely affect any
exclusion from gross income for federal income tax purposes of
interest on the Bonds.
"First Mortgage Bonds" means the First Mortgage Bonds, First
Pollution Control Series due July 1, 2025 of the Company issued
by the Company under the Company Indenture pursuant to Section
3.4 of the Agreement.
"Government Obligations" means (i) noncallable direct
obligations of the United States for which its full faith and
credit are pledged, (ii) noncallable obligations of a Person
controlled or supervised by and acting as an agency or instrumen-
tality of the United States, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation
of the United States, or (iii) securities or receipts evidencing
ownership interests in obligations or specified portions (such as
principal or interest) of obligations described in (i) or (ii).
"Indenture" means this Trust Indenture, as it may be amended
or supplemented from time to time in accordance with its terms.
"Interest Payment Date" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"Interest Period" is defined in the form of the Bonds
appearing in Exhibit A hereto.
"J.J. Kenny Index" means, as of any date, the index of 7-day
yields on high grade tax exempt municipal bonds as determined by
J.J. Kenny Co., Inc. or any successor thereto and published on
such date (or, if not published on said date, on the most recent
day prior thereto on which such index shall have been so
published).
"Long-Term Interest Rate" means an interest rate on the
Bonds set under Section 2.02(a)(4).
"Long-Term Interest Rate Period" is defined in Section
2.02(a)(4).
"Maturity Date" means the stated maturity for the Bonds as
set forth in Section 2.01.
5<PAGE>
"Mortgage Trustee" means the trustee or trustees at the time
serving as such under the Company Indenture.
"1954 Code" means the Internal Revenue Code of 1954, as
amended, and the Treasury regulations thereunder.
"Note" means the promissory note executed and delivered by
the Company concurrently with the issuance of the Bonds in a like
principal amount bearing interest at the rate or rates borne by
the Bonds.
"Opinion of Counsel" means a written opinion of counsel who
is acceptable to the Issuer and the Trustee. Such counsel may be
an employee of or counsel to the Issuer, the Trustee or the
Company.
"Opinion of Tax Counsel" means an Opinion of Counsel by
counsel of nationally recognized standing in matters relating to
the exclusion of interest from gross income on obligations issued
by or on behalf of states and their political subdivisions.
The term "outstanding" when used with reference to Bonds, or
"Bonds outstanding" means all Bonds which have been authenticated
and delivered by the Trustee under this Indenture, except the
following:
a. Bonds canceled or purchased by or delivered to
the Trustee for cancellation.
b. Bonds that have become due (at maturity or on
redemption, acceleration or otherwise) and for the payment,
including interest accrued to the due date, of which
sufficient moneys are held by the Trustee.
c. Bonds deemed paid by Section 7.01.
d. Bonds in lieu of which others have been
authenticated under Section 2.05 (relating to registration
and exchange of Bonds) or Section 2.06 (relating to
mutilated, lost, stolen, destroyed or undelivered Bonds).
Bonds purchased pursuant to tenders or in lieu of redemption and
not delivered to the Trustee for payment are not outstanding, but
there will be outstanding Bonds authenticated and delivered in
lieu of such undelivered Bonds as provided in the second
paragraph of Section 2.06.
"Participant" means one of the entities which deposit
securities, directly or indirectly, in the Book-Entry System.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust, estate,
6<PAGE>
unincorporated organization or government or any agency or
political subdivision thereof.
"Plant" means the Scherer steam electric generating plant
located in Monroe County, Georgia.
The term "principal," when used with reference to any Bonds,
includes any premium payable on those Bonds.
"Prior Indenture" means the Trust Indenture dated as of
September 1, 1985, as supplemented and amended, between the
Issuer and the Refunded Bonds Trustee under which the Refunded
Bonds were issued.
"Project" means the air and water pollution control and
sewage and solid waste disposal facilities at the Plant financed
from the proceeds of the Refunded Bonds.
"Record Date" is defined in the form of the Bonds appearing
as Exhibit A hereto.
"Refunded Bonds" means $40,000,000 principal amount of the
Issuer's Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project), First Series 1985, being refunded by the
Bonds.
"Refunded Bonds Trustee" means NationsBank of Georgia,
National Association, Atlanta, Georgia, in its capacity as
trustee for the Refunded Bonds.
"Remarketing Agent" means Lehman Brothers Inc. and its
successors under this Indenture.
"Responsible Officer" means any officer or trust officer of
the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Securities Depository" means The Depository Trust Company,
New York, New York or its nominee, and its successors and
assigns, or any successor appointed under Section 5.01.
"State" means the State of Georgia.
"Supplemental Indenture" means the Supplemental Indenture,
dated as of July 1, 1995, to the Company Indenture.
"Trustee" means the entity identified as such in the heading
of this Indenture and its successors under this Indenture.
"Unassigned Rights" means the rights of the Issuer under
Section 4.2 and Section 5.3 of the Agreement.
7<PAGE>
"Weekly Rate" means an interest rate on the Bonds set under
Section 2.02(a)(2).
Section 1.02. Rules of Construction. Unless the context
otherwise requires,
a. an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted
accounting principles,
b. references to Articles and Sections are to the
Articles and Sections of this Indenture, and
c. the singular form of any word, including the
terms defined in Section 1.01, includes the plural, and vice
versa, and a word of any gender includes all genders.
ARTICLE II
THE BONDS
Section 2.01. Issuance of Bonds; Form; Dating. The Bonds
shall be designated "Development Authority of Monroe County
(Georgia) Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project), Second Series 1995." The total principal
amount of Bonds that may be outstanding shall not exceed
$40,000,000. The Bonds shall be substantially in the form of
Exhibit A, which is part of this Indenture, in the denominations
provided for in the Bonds. The Bonds may have notations, legends
or endorsements required by law or usage.
All Bonds will be dated the date of original issuance and
delivery and shall mature, subject to prior redemption, on July
1, 2025. Bonds will be numbered as determined by the Trustee.
Upon the execution and delivery of this Indenture, the
Issuer will execute and deliver to the Trustee and the Trustee
will authenticate the Bonds and deliver them to the purchaser or
purchasers as directed by the Issuer.
Section 2.02. Interest on the Bonds. Interest on the Bonds
will be payable as provided in the Bonds and in this Section.
Interest on the Bonds will initially be payable at the Daily
Rate. The interest rate determination method may be changed by
the Company as described in paragraph (b) below. The methods of
determining the various interest rates are as provided in the
following paragraph (a).
(a) Interest Rate Determination Methods. While there
exists an Event of Default under the Indenture, the interest rate
on the Bonds will be the rate on the Bonds on the day before the
8<PAGE>
Event of Default occurred, except that if interest on any Bond
was then payable at a Commercial Paper Rate, the interest rate
for all Bonds then bearing interest at a Commercial Paper Rate
will be the highest Commercial Paper Rate then in effect for any
Bond.
(1) Daily Rate. When interest on the Bonds is
payable at a Daily Rate, the Remarketing Agent will set a
Daily Rate on or before 11:00 a.m., New York City time, on
each Business Day for that Business Day. Each Daily Rate
will be the minimum rate necessary (as determined by the
Remarketing Agent based on the examination of tax-exempt
obligations comparable to the Bonds known by the Remarketing
Agent to have been priced or traded under then-prevailing
market conditions) for the Remarketing Agent to sell the
Bonds on the day the rate is set at their principal amount
(without regard to accrued interest). The Daily Rate for
any non-Business Day will be the rate for the last day for
which a rate was set.
(2) Weekly Rate. When interest on the Bonds is
payable at a Weekly Rate, the Remarketing Agent will set a
Weekly Rate on or before 5:00 p.m., New York City time, on
the last Business Day before the commencement of a period
during which the Bonds bear interest at a Weekly Rate and on
each Tuesday thereafter so long as interest on the Bonds is
to be payable at a Weekly Rate or, if any Tuesday is not a
Business Day, on the next preceding Business Day. Each
Weekly Rate will be the minimum rate necessary (as
determined by the Remarketing Agent based on the examination
of tax-exempt obligations comparable to the Bonds known by
the Remarketing Agent to have been priced or traded under
then prevailing market conditions) for the Remarketing Agent
to sell the Bonds on the date the rate is set at their
principal amount (without regard to accrued interest).
Thereafter, each Weekly Rate shall apply to (i) the period
beginning on the Wednesday after the Weekly Rate is set and
ending on the following Tuesday or, if earlier, ending on
the day before the effective date of a new method of
determining the interest rate on the Bonds or (ii) the
period beginning on the effective date of the change to a
Weekly Rate and ending on the next Tuesday.
(3) Commercial Paper Rate. During a Commercial Paper
Mode, each Bond will bear interest during the Commercial
Paper Period for such Bond at the Commercial Paper Rate for
such Bond. Different Commercial Paper Periods may apply to
different Bonds at any time and from time to time. Except
as otherwise described in this subparagraph (3), the
Commercial Paper Period and Commercial Paper Rate for each
Bond will be determined by the Remarketing Agent no later
9<PAGE>
than 12:15 p.m., New York City time, on the first day of
each Commercial Paper Period.
(i) Determination of Commercial Paper Periods.
Subject to Section 2.02(b)(2)(vii), each Commercial
Paper Period will be a period of at least 1 day and not
more than 365 days, determined by the Remarketing Agent
to be the period which, together with all other Commer-
cial Paper Periods for all Bonds then outstanding,
will, in the judgment of the Remarketing Agent, result
in the lowest overall interest expense on the Bonds
over the next 365 days; provided, however, that at any
time at which a Credit Agreement is in effect, the
Remarketing Agent shall not establish any Commercial
Paper Period which would end at a time when no Credit
Agreement will be in effect. Each Commercial Paper
Period will end on either the day before a Business Day
or on the day before the Maturity Date for such Bond.
However, any Bond purchased on behalf of the Company
and remaining unsold by the Remarketing Agent as of the
close of business on the first day of the Commercial
Paper Period for that Bond will have a Commercial Paper
Period of 1 day or, if that Commercial Paper Period
would not end on a day before a Business Day, a
Commercial Paper Period of the shortest possible
duration greater than 1 day ending on a day before a
Business Day.
In determining the number of days in each Commercial
Paper Period, the Remarketing Agent shall take into
account the following factors: (I) existing short-term
tax-exempt market rates and indices of such short-term
rates, (II) the existing market supply and demand for
short-term tax-exempt securities, (III) existing yield
curves for short-term and long-term tax-exempt
securities for obligations of credit quality comparable
to the Bonds, (IV) general economic conditions,
(V) industry economic and financial conditions that may
affect or be relevant to the Bonds, (VI) the number of
days in other Commercial Paper Periods applicable to
the Bonds and (VII) such other facts, circumstances and
conditions as the Remarketing Agent, in its sole
discretion, shall determine to be relevant.
(ii) Determination of Commercial Paper Rates. The
Commercial Paper Rate for each Commercial Paper Period
for each Bond shall be the minimum rate necessary (as
determined by the Remarketing Agent based on the
examination of tax-exempt obligations comparable to the
Bonds known by the Remarketing Agent to have been
priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell such Bond
10<PAGE>
on the date and at the time of such determination at
its principal amount (without regard to accrued
interest).
(4) Long-Term Interest Rate. The Remarketing Agent
will set a Long-Term Interest Rate on a date no more than 15
days before the beginning of any period (a "Long-Term
Interest Rate Period") in which interest on any of the Bonds
will be payable at a Long-Term Interest Rate. The last day
of each such Long-Term Interest Rate Period shall be
determined by the Company in accordance with Section
2.02(b)(1). Each Long-Term Interest Rate will be the
minimum rate necessary (as determined by the Remarketing
Agent based on the examination of tax-exempt obligations
comparable to the Bonds known by the Remarketing Agent to
have been priced or traded under then-prevailing market
conditions) for the Remarketing Agent to sell the Bonds on
the effective date of the Long-Term Interest Rate at their
principal amount (without regard to accrued interest).
(5) Failure of Remarketing Agent to Announce Interest
Rates on the Bonds. If the appropriate interest rate or
Commercial Paper Period is not or cannot be determined for
whatever reason, the method of determining interest on the
Bonds shall be automatically converted to the Weekly Rate
(without the necessity of complying with the requirements of
Section 2.02(b)) and the interest rate shall be equal to the
J.J. Kenny Index, or such other index (or percentage of an
index) deemed appropriate for tax-exempt securities of the
nature of the Bonds as the Remarketing Agent, with the
consent of the Trustee, may have previously selected, until
such time as the method of determining interest on the Bonds
can be changed in accordance with Section 2.02(b); provided,
that if the Bonds are then in a Long-Term Interest Rate
Period, the Bonds shall bear interest at a Weekly Rate, but
only if a Favorable Opinion of Tax Counsel with respect to
the change to a Weekly Rate has been delivered to the
Trustee and the Issuer. If such Favorable Opinion of Tax
Counsel has not been delivered, the Bonds shall remain in a
Long-Term Interest Rate Period with an interest rate equal
to the interest rate for the prior Long-Term Interest Rate
Period and with a duration equal to the prior Long-Term
Interest Rate Period (or, if earlier, a Long-Term Interest
Rate Period ending on the day before the Maturity Date for
such Bond). The Trustee shall promptly notify the
Bondholders of any such automatic change as set forth in
Section 2.02(c).
While Bonds are in a Commercial Paper Mode, during any
transition period caused by an automatic conversion of such
Bonds to a Weekly Rate in accordance with this
Subsection (5), Bonds bearing interest at a Weekly Rate and
11<PAGE>
Bonds bearing interest at a Commercial Paper Rate, as
applicable, shall be governed by the provisions of this
Indenture applicable to such methods of determining interest
on the Bonds.
(b) (1) Change in Interest Rate Determination Method. The
Company may change the method of determining the interest rate on
the Bonds by notifying the Issuer, the Trustee, the Remarketing
Agent and, if a Book-Entry System is then in effect for the
Bonds, the Securities Depository. Such notice shall contain
(a) the effective date, (b) the proposed interest rate
determination method, and (c) if the change is to a Long-Term
Interest Rate or Rates, the last day of the first such Long-Term
Interest Rate Period and, at the option of the Company, the
effective date and last day of any successive Long-Term Interest
Rate Periods (which last day for each Long-Term Interest Rate
Period must be either the day before the Maturity Date for such
Bonds or a day which is before a Business Day and is at least 365
days after the effective date). The Long-Term Interest Rate
Period shall be the same duration for all of the Bonds. The
notice must be accompanied by a Favorable Opinion of Tax Counsel,
except as described below. If the Company's notice complies with
this paragraph, and if the Company shall deliver addressed to the
Trustee and the Issuer a confirming Opinion of Tax Counsel on the
effective date as specified in the notice, the interest rate on
the Bonds will be payable at the new rate on the effective date
specified in the notice until there is another change as provided
in this Section. Notwithstanding anything in this Indenture to
the contrary, the Company must deliver a Favorable Opinion of Tax
Counsel whenever there is a change from a period during which the
interest rate on the Bonds is set at intervals of 365 days or
less to a period during which the interest rate on the Bonds is
set at intervals in excess of 365 days, or vice versa.
If the Company wishes to designate successive Long-Term
Interest Rate Periods without specifying the effective dates and
last days as described in the preceding paragraph for the second
or any subsequent Long-Term Interest Rate Periods, it may do so
by following the same procedure as for a change in the interest
rate determination method as provided in the foregoing paragraph.
If, 30 days before the end of a Long-Term Interest Rate
Period, the Company has not provided for the next interest rate
period, a new Long-Term Interest Rate Period of the same duration
will follow (or if shorter, a Long-Term Interest Rate Period
ending on the day before the Maturity Date for the Bonds).
When one Long-Term Interest Rate Period follows another, all
provisions of this Indenture applying to a change in the interest
rate determination method will apply, except:
12<PAGE>
(A) the redemption described under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in the Bonds;
(B) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if a new Long-Term Interest
Rate Period begins as a result of the Company failing to
provide for the next interest rate period; and
(C) the Company will not be required to deliver a
Favorable Opinion of Tax Counsel if the Company has
previously designated a series of successive Long-Term
Interest Rate Periods which, together with the current Long-
Term Interest Rate Period, are substantially equal in
length, and if a Favorable Opinion of Tax Counsel was
delivered before the first such Long-Term Interest Rate
Period in that series which applies to each such successive
Long-Term Interest Rate Period.
(2) Limitations. Any change in the method of determining
interest on the Bonds pursuant to paragraph (1) above must comply
with the following:
(i) the effective date of a change (or each effective
date in the case of a change from a Commercial Paper Mode)
shall be a Business Day which is at least 15 days (30 days
if a Long-Term Interest Rate is then in effect and the
effective date is before the day after the last day of a
Long-Term Interest Rate Period) after the twelfth Business
Day after receipt by the Trustee of the Company's notice of
the change;
(ii) if a Long-Term Interest Rate is then in effect, the
effective date of any change must be either the day after
the last day of the then current Long-Term Interest Rate
Period or, except as described in clause (iii) below, a day
on which the Bonds would otherwise be subject to redemption
under the paragraph "Optional Redemption at a Premium During
Long-Term Interest Rate Period" in Section 8 of the Bonds if
the change did not occur;
(iii) if the Company has previously designated successive
Long-Term Interest Rate Periods, the effective date of each
Long-Term Interest Rate Period must be the day after the
last day of the previous Long-Term Interest Rate Period;
(iv) if a Commercial Paper Mode is then in effect, the
effective date of any change must be either the day after
the last day of the Commercial Paper Mode or, as to any
Bond, the day after the last day of the Commercial Paper
Period then in effect (or to be in effect) with respect to
that Bond;
13<PAGE>
(v) if any Bonds have been called for redemption and the
redemption has not yet occurred, the effective date of the
change cannot be before such redemption date;
(vi) if a Long-Term Interest Rate or a Daily Rate is then
in effect, the effective date of any change cannot occur
during the period after a Record Date and to, but not
including, the related Interest Payment Date; and
(vii) if a Commercial Paper Mode is then in effect, the
Remarketing Agent shall determine Commercial Paper Periods
of such duration that will, in the judgment of the
Remarketing Agent, best promote an orderly transition on the
effective date. After the receipt by the Trustee of the
Company's notice of such change, the day after the last day
of each Commercial Paper Period shall be, with respect to
such Bond, the effective date of the change. The
Remarketing Agent shall promptly give written notice of each
such last date and each such effective date with respect to
each Bond to the Issuer, the Company, and the Trustee.
During any such transition period, Bonds bearing
interest at a Commercial Paper Rate shall be governed by the
provisions of this Indenture applicable to a Commercial
Paper Mode and Bonds bearing interest at a Daily Rate,
Weekly Rate or Long-Term Interest Rate, as applicable, shall
be governed by the provisions of this Indenture applicable
to such methods of determining interest on the Bonds.
(c) Notice to Bondholders of Change in Interest Rate
Determination Method. When a change in the interest rate
determination method is to be made, or upon commencement of a new
Long-Term Interest Rate Period, the Trustee will, upon notice
from the Company pursuant to Section 2.02(b), notify the
Bondholders by first class mail at least 15 days before the
effective date (or each effective date in the case of an
adjustment from a Commercial Paper Mode) of the change, except
that such notice shall be given at least 30 days prior to the
effective date if a Long-Term Interest Rate is in effect and the
effective date is on or before the end of the Long-Term Interest
Rate Period. The notice shall be effective when sent and shall
state:
(1) that the interest rate determination method will
be changed and what the new method will be,
(2) the effective date of the new rate, and
(3) that a mandatory redemption or mandatory purchase
in lieu of redemption will result on the effective date of
the change as provided in the Bonds and all the information
14<PAGE>
required by this Indenture to be included in a notice of
redemption set forth in Section 3.04.
The information required in any notice pursuant to this
subsection (c) and the information referred to in any redemption
notice (including an Additional Notice) pursuant to Section 3.04
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
(d) Calculation of Interest. The Remarketing Agent shall
provide the Trustee and the Company with notice in writing or by
telephone (any such notice by telephone to be delivered to a
Responsible Officer of the Trustee) promptly confirmed by
facsimile transmission by 12:30 p.m., New York City time,
(1) on the first Business Day after a month in which
interest on the Bonds was payable at a Daily Rate, of the
Daily Rate for each day in such month,
(2) on each day on which a Weekly Rate becomes
effective, of the Weekly Rate,
(3) on the first day of each Commercial Paper Period,
of the length thereof and the Commercial Paper Rate, and, if
there is more than one Commercial Paper Rate then in effect,
of the related applicable principal amounts,
(4) on the first Business Day of a Long-Term Interest
Rate Period, of the Long-Term Interest Rate or Long-Term
Interest Rates set for that period and the related
applicable principal amounts, and
(5) on any Business Day preceding any redemption or
purchase date, any interest rate requested by the Trustee in
order to enable it to calculate the accrued interest, if
any, due on such redemption or purchase date.
Using the rates supplied by this notice, the Trustee will
calculate the interest payable on the Bonds. The Remarketing
Agent will inform the Trustee and the Company orally at the oral
request of either of them of any interest rate set by the
Remarketing Agent. The Trustee will confirm the effective
interest rate by telephone or in writing to any Bondholder who
requests it in any manner.
The setting of the rates and the determination of Commercial
Paper Periods by the Remarketing Agent and the calculation of
interest payable on the Bonds by the Trustee as provided in this
Indenture will be conclusive and binding on the Issuer, the
Company, the Trustee and the owners of the Bonds.
15<PAGE>
(e) Change in Rate Determination Method-Opinions of
Counsel. Notwithstanding any provision of this Section 2.02, no
change shall be made in the interest rate determination method at
the direction of the Company pursuant to Section 2.02(b)(1)
hereof if the Company shall fail to deliver a Favorable Opinion
of Tax Counsel and confirmation thereof required under
Section 2.02(b)(1). If the Trustee shall have sent any notice to
the Bondholders regarding a change in rate under Section 2.02(c),
then in the event of such failure to deliver such opinion or
confirmation, the Trustee shall promptly notify all Bondholders
of such failure.
(f) Notice to Bondholders of Voluntary Termination of
Credit Agreement. If the Trustee receives notice from the
Company as provided in Section 3.6 of the Agreement to the effect
that the Company intends to terminate the Credit Agreement prior
to its stated termination date, the Trustee shall notify the
Bondholders by first class mail at least 15 Business Days prior
to the effective date of such termination. The notice shall be
effective when sent and shall state:
(1) that the Company has notified the Trustee that it
intends to terminate the Credit Agreement;
(2) the effective date of such termination; and
(3) if the interest is then payable at a Daily Rate
or a Weekly Rate, that the Bondholders have the right to
tender Bonds to the Trustee for purchase as provided in
Section 6 of the form of the Bonds set out in Exhibit A
hereto.
Section 2.03. Execution and Authentication. The Bonds shall
be signed on behalf of the Issuer with the manual or facsimile
signature of its Chairman or Vice Chairman and attested by the
manual or facsimile signature of its Secretary or Assistant
Secretary, and the seal of the Issuer shall be impressed or
imprinted on the Bonds by facsimile or otherwise. All authorized
facsimile signatures shall have the same effect as if manually
signed. If an officer of the Issuer whose signature is on a Bond
no longer holds that office at the time the Trustee authenticates
the Bond, the Bond shall nevertheless be valid. Also, if a
person signing a Bond is the proper officer on the actual date of
execution, the Bond shall be valid even if that person is not the
proper officer on the nominal date of action.
A Bond shall not be valid for any purpose under this
Indenture until the Trustee manually signs the certificate of
authentication on the Bond. Such signature shall be conclusive
evidence that the Bond has been authenticated under this
Indenture.
16<PAGE>
As a precondition to the initial authentication and delivery
of the Bonds, the Trustee shall receive a request and
authorization to the Trustee from the Issuer, signed by the
Chairman or Vice Chairman of the Issuer, to authenticate and
deliver the Bonds to the persons and in the manner therein
described.
Section 2.04. Bond Register. Bonds must be presented at
the principal corporate trust office of the Trustee for
registration, registration of transfer, exchange and payment.
Bonds tendered by their holders must be delivered as specified in
the Bonds. The Trustee shall keep a register of Bonds and of
their registration of transfer and exchange, which register shall
be open to inspection by the Issuer and the Company during normal
business hours.
Section 2.05. Registration and Exchange of Bonds; Persons
Treated as Owners. Bonds may be registered as transferred only
on the register maintained by the Trustee. Upon surrender for
registration of transfer of any Bond to the Trustee, duly
endorsed for transfer or accompanied by an assignment duly
executed by the holder or the holder's attorney duly authorized
in writing, the Trustee will authenticate a new Bond or Bonds of
the same maturity, in an equal total principal amount and
registered in the name of the transferee.
Bonds may be exchanged for an equal total principal amount
of Bonds of the same maturity but of different authorized
denominations. The Trustee will authenticate and deliver Bonds
that the Bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding.
Except in connection with the purchase of Bonds tendered for
purchase or purchased in lieu of redemption, the Trustee will not
be required to register the transfer of or to exchange any Bond
called for redemption or during the period beginning 15 days
before the mailing of notice calling the Bonds or any portion of
the Bonds for redemption and ending on the redemption date.
The registered owner of a Bond shall be treated as the
absolute owner of the Bond for all purposes, and payment of
principal, interest or purchase price shall be made only to or
upon the written order of the holder or the holder's legal
representative, notwithstanding any notice, actual or
constructive, to the contrary.
The Trustee will require the payment by a Bondholder
requesting exchange or registration of transfer of any tax or
other governmental charge required to be paid in respect of the
exchange or registration of transfer but will not impose any
other charge.
17<PAGE>
Section 2.06. Mutilated, Lost, Stolen, Destroyed or
Undelivered Bonds. If any Bond is mutilated, lost, stolen or
destroyed, the Trustee will authenticate a new Bond of the same
denomination with similar terms if any mutilated Bond shall first
be surrendered to the Trustee, and if, in the case of any lost,
stolen or destroyed Bond, there shall first be furnished to the
Issuer, the Trustee and the Company evidence of such loss, theft
or destruction, together with an indemnity, satisfactory to them.
If the Bond has matured or become subject to redemption or
purchase, instead of issuing a replacement Bond, the Trustee may
with the consent of the Company pay the Bond without requiring
surrender of the Bond and make such requirements as the Trustee
deems fit for its protection, including a lost instrument bond.
The Issuer, the Company and the Trustee may charge their
reasonable fees and expenses in this connection.
If a Bond is called for redemption and the Company elects to
purchase the Bond in lieu of redemption as provided in
Article III, or if the holder of a Bond gives irrevocable
instructions to the Remarketing Agent for purchase, and in each
case funds are deposited with the Trustee sufficient for the
purchase, the Trustee upon request of the Company or the
Remarketing Agent will authenticate a new Bond in the same
maturity and in the same denomination registered as the Company
or the Remarketing Agent may direct and deliver it to the Company
or upon the Company's order, whether or not the Bond purchased or
called for redemption is ever delivered, and the undelivered
Bonds shall be cancelled on the books of the Trustee, whether or
not said undelivered Bonds have been delivered to the Trustee.
From and after the purchase date, interest on such Bond shall
cease to be payable to the prior holder thereof, such holder
shall cease to be entitled to the benefits or security of this
Indenture and shall have recourse solely to the funds held by the
Trustee for the purchase of such Bond and the Trustee shall not
register any further transfer of such Bond by such prior holder.
All funds held by the Trustee for the purchase of undelivered
Bonds shall be held uninvested.
Section 2.07. Cancellation of Bonds. Whenever a Bond is
delivered to the Trustee for cancellation (upon payment,
redemption or otherwise), or for registration of transfer,
exchange or replacement pursuant to Section 2.05 or Section 2.06,
the Trustee will promptly cancel and dispose of the Bond in
accordance with the Trustee's policy of disposal; provided,
however, that the Trustee shall not be required to destroy
cancelled Bonds.
Section 2.08. Temporary Bonds. Until definitive Bonds are
ready for delivery, the Issuer may execute and the Trustee will
authenticate temporary Bonds substantially in the form of the
definitive Bonds, with appropriate variations. The Issuer will,
without unreasonable delay, prepare and the Trustee will
18<PAGE>
authenticate definitive Bonds in exchange for the temporary
Bonds. Such exchange shall be made by the Trustee without charge.
ARTICLE III
REDEMPTION, PURCHASES IN LIEU OF REDEMPTION AND REMARKETING
Section 3.01. Notices to Trustee. If the Company wishes
that any Bonds be redeemed pursuant to any optional redemption
provision in the Bonds, the Company will notify the Trustee of
the applicable provision, the redemption date, the principal
amount of the Bonds to be redeemed and other necessary particu-
lars in accordance with Section 4.7 of the Agreement.
Section 3.02. Redemption Dates. The redemption date of
Bonds to be redeemed pursuant to any optional redemption
provision in the Bonds will be a date permitted by the Bonds and
specified by the Company in the notice delivered pursuant to
Section 4.7 of the Agreement. The redemption date for mandatory
redemptions will be as specified in the Bonds to be redeemed or
determined by the Trustee consistently with the provisions of the
Bonds.
Section 3.03. Selection of Bonds to Be Redeemed. Except as
provided in the Bonds, if fewer than all the Bonds are to be
redeemed, the Trustee will select the Bonds to be redeemed by lot
or other method it deems fair and appropriate, except that the
Trustee will first select any Bonds owned by the Company or any
of its nominees or held by the Trustee for the account of the
Company or any of its nominees. The Trustee will make the
selection from Bonds not previously called for redemption. For
this purpose, the Trustee will consider each Bond in a
denomination larger than the minimum denomination permitted by
the Bonds at the time to be separate Bonds each in the minimum
denomination. Provisions of this Indenture that apply to Bonds
called for redemption also apply to portions of Bonds called for
redemption.
Section 3.04. Redemption Notices.
(a) Official Notice of Redemption. The Trustee will give
notice of each redemption as provided in the Bonds and will at
the same time give a copy of the notice to the Remarketing Agent,
provided that no redemption notice shall be given with respect to
a redemption under "Mandatory Redemption on Each Interest Payment
Date During Commercial Paper Mode" in Section 8 of the form of
the Bonds. The notice shall identify the Bonds to be redeemed
and shall state (1) the redemption date (and, if the Bonds
provide that accrued interest will not be paid on the redemption
date, the date it will be paid), (2) the redemption price,
(3) that the Bonds called for redemption must be surrendered to
19<PAGE>
collect the redemption price, (4) the address at which the Bonds
must be surrendered and (5) that interest on the Bonds called for
redemption ceases to accrue on the redemption date.
With respect to an optional redemption of any Bonds under
"Optional Redemption at a Premium During Long-Term Interest Rate
Period," "Extraordinary Optional Redemption" or "Optional Redemp-
tion During Daily or Weekly Rate Period" in Section 8 of the form
of the Bonds, unless moneys sufficient to pay the principal of,
redemption premium, if any, and interest on the Bonds to be
redeemed shall have been received by the Trustee prior to the
giving of such notice of redemption, such notice may state that
said redemption shall be conditional upon the receipt of such
moneys by the Trustee on or prior to the date fixed for
redemption. If such moneys are not received, such notice shall
be of no force and effect, the Issuer shall not redeem such
Bonds, the redemption price shall not be due and payable, and the
Trustee shall give notice, in the same manner in which the notice
of redemption was given, that such moneys were not so received
and that such Bonds will not be redeemed.
Failure to give any required notice of redemption as to any
particular Bonds or any defect therein will not affect the
validity of the call for redemption of any Bonds in respect of
which no such failure or defect has occurred. Any notice mailed
as provided in the Bonds shall be effective when sent and will be
conclusively presumed to have been given whether or not actually
received by any holder.
(b) Additional Notice of Redemption. In addition to the
redemption notice required above, if there is not a Book-Entry
System in effect for the Bonds, further notice (the "Additional
Notice") shall be given by the Trustee as set out below. No
defect in the Additional Notice nor any failure to give all or
any portion of the Additional Notice shall in any manner defeat
the effectiveness of a call for redemption if notice is given as
prescribed in paragraph (a) above.
(1) Each Additional Notice of redemption shall
contain the information required in paragraph (a) above for
an official notice of redemption plus (i) the CUSIP numbers
of all Bonds being redeemed; (ii) the date of the Bonds as
originally issued; (iii) the interest rate determination
method for, or the rate of interest borne by each Bond being
redeemed; (iv) the maturity date of each Bond being
redeemed; and (v) any other descriptive information needed
to identify accurately the Bonds being redeemed.
(2) Each Additional Notice of redemption shall be
sent at least 30 days before the redemption date by
registered or certified mail or overnight delivery service
(or by such other means as the Trustee may have established
20<PAGE>
with the securities depository or information service) to
all registered securities depositories then in the business
of holding substantial amounts of obligations similar to the
Bonds (such depositories now being Depository Trust Company
of New York, New York, Midwest Securities Trust Company of
Chicago, Illinois, and Philadelphia Depository Trust Company
of Philadelphia, Pennsylvania) and to one or more national
information services that disseminate notices of redemption
of obligations such as the Bonds.
The information required in any redemption notice (including
an Additional Notice) pursuant to this Section and the
information required in any notice pursuant to Section 2.02(c)
may be combined in a single notice if it is sent to Bondholders
in the manner and at the time specified under "Notice of
Redemption" in Section 8 of the form of the Bonds.
Section 3.05. Payment of Bonds Called for Redemption. Upon
surrender to the Trustee, Bonds called for redemption shall be
paid or purchased in lieu of redemption as provided in this
Article at the redemption price stated in the notice, plus
interest accrued to the redemption date, or at a purchase price
as provided in the form of Bond, except that interest payable on
Bonds bearing interest at a Daily Rate will be paid on the fifth
Business Day following the redemption date. Bonds called for
redemption and purchased pursuant to a tender before the
redemption date will not be redeemed but will be dealt with as
provided below in this Article. Upon the payment of the
redemption price of the Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP
number identifying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer.
Section 3.06. Bonds Redeemed in Part. Subject to
Article V, upon surrender of a Bond redeemed or purchased in lieu
of redemption in part, the Trustee will authenticate for the
holder a new Bond or Bonds in authorized denominations equal in
principal amount to the unredeemed or unpurchased portion of the
Bond surrendered.
Section 3.07. Purchase of Bonds in Lieu of Redemption.
When Bonds are called for redemption pursuant to the paragraphs
captioned, "Mandatory Redemption at Beginning of a New Long-Term
Interest Rate Period" or "Mandatory Redemption Upon a Change in
the Method of Determining the Interest Rate on the Bonds" in
Section 8 of the form of the Bonds, the Company may purchase some
of or all the Bonds called for redemption for a price equal to
the otherwise applicable redemption price, if it (or the
Remarketing Agent) gives written notice to the Trustee by 5:00
p.m. New York City time on the day before the redemption date
that it wishes to purchase the Bonds the principal amount of
21<PAGE>
which is specified in the notice and furnishes the Trustee
sufficient money in sufficient time for the Trustee to make the
purchase on the redemption date. The Trustee will purchase Bonds
called for redemption pursuant to the paragraph captioned
"Mandatory Redemption on Each Interest Payment Date During
Commercial Paper Mode" unless otherwise instructed in writing by
the Company, or unless the Indenture otherwise requires that they
be redeemed and cancelled, before the redemption date. The
Trustee will purchase the Bonds pursuant to this Section only as
provided in Section 4.02.
Section 3.08. Disposition of Purchased Bonds. (a) Bonds to
be Remarketed. Bonds purchased pursuant to tenders as provided
in the form of Bonds or in lieu of redemption as provided in the
foregoing Section will be offered for sale by the Remarketing
Agent as provided in this Section except as follows:
(1) Bonds purchased pursuant to a tender after having
been called for redemption under a provision in the form of
Bond that does not provide the Company an option to purchase
in lieu of redemption will be canceled.
(2) Bonds called for redemption under "Mandatory
Redemption Upon a Change in the Method of Determining the
Interest Rate on the Bonds" in Section 8 of the form of
Bond, which are tendered between the date notice of
redemption is given and the redemption date, may be
remarketed before the redemption date only if the buyer
receives a copy of the redemption notice from the
Remarketing Agent.
(3) Bonds will not be offered for sale under this
Section during the continuance of an Event of Default under
Section 8.01(a), (b), (c) or (d). Bonds will be offered for
sale under this Section during the continuance of any other
Event of Default or an event which with the passage of time
or the giving of notice or both may become an Event of
Default only in the sole discretion of the Remarketing
Agent.
(b) Remarketing Effort. Except to the extent the Company
directs the Remarketing Agent not to do so, the Remarketing Agent
will offer for sale and use reasonable efforts to sell all Bonds
to be sold as provided in paragraph (a) above and, when directed
by the Company, any Bonds held by the Company. The sale price of
each Bond must be equal to the principal amount of each Bond plus
accrued interest, if any, to the purchase date. The Company may
direct the Remarketing Agent from time to time to cease and to
resume sales efforts with respect to some of or all the Bonds.
The Remarketing Agent may buy as principal any Bonds to be
offered under this Section.
22<PAGE>
(c) Notices in Respect of Tenders. When the Trustee
receives a notice from a Bondholder (or a Beneficial Owner
through its direct Participant) as specified in Section 6 of the
form of the Bond for the Bondholder (or a Beneficial Owner
through its direct Participant) to tender Bonds, the Trustee will
promptly notify the Remarketing Agent and the Company by
facsimile transmission or telephone, promptly confirmed in
writing, of the receipt of such notice, but in no event later
than the following times:
(i) when the Bonds bear interest at a Daily Rate, no
later than 11:15 a.m. (New York City time) on the same
Business Day; and
(ii) when the Bonds bear interest at a Weekly Rate, no
later than 11:15 a.m. (New York City time) on the Business
Day next succeeding receipt of such notice.
(d) Delivery of Remarketed Bonds.
(i) Except when a book-entry system of registration is in
effect, the Trustee shall hold all Bonds delivered pursuant
to this Section in trust for the benefit of the owners
thereof until moneys representing the purchase price of such
Bonds shall have been delivered to or for the account of or
to the order of such Bondholders, and thereafter, if such
Bonds are remarketed, shall deliver replacement Bonds,
prepared by the Trustee in accordance with the directions of
the Remarketing Agent and authenticated by the Trustee, for
any Bonds purchased in accordance with the written
directions of the Remarketing Agent to the Remarketing Agent
for delivery to the purchasers thereof.
(ii) The Remarketing Agent shall advise the Trustee and
the Company in writing or by facsimile transmission of the
principal amount of Bonds which have been remarketed,
together with the denominations and registration
instructions (including taxpayer identification numbers) in
accordance with the following schedule (all times of which
are New York City time):
23<PAGE>
CURRENT METHOD OF INTEREST RATE TIME BY WHICH INFORMATION
DETERMINATION OR, IN CONNECTION TO BE FURNISHED
WITH A CHANGE IN SUCH METHOD, THE TO TRUSTEE
NEW METHOD OF INTEREST RATE
DETERMINATION
Commercial Paper Period 12:15 p.m. on the purchase date
Daily Rate Period 12:15 p.m. on the purchase date
Weekly Rate Period 12:15 p.m. on the purchase date
Long -Term Interest Rate Period 12:15 p.m. on the purchase date
(iii) The terms of any sale by the Remarketing Agent shall
provide for the authorization of the payment of the purchase
price by the Remarketing Agent to the Trustee in exchange
for Bonds registered in the name of the new Bondholder which
shall be delivered by the Trustee to the Remarketing Agent
at or before 2:00 p.m. (New York City time) on the purchase
date if the purchase price has been received from the
Remarketing Agent by the time set forth in Section 3.08(e)
on the purchase date.
(e) Delivery of Proceeds of Sale. The Remarketing Agent
shall deliver directly to the Trustee an amount equal to the
principal amount thereof plus accrued interest, if any, of the
Bonds which the Remarketing Agent has advised the Trustee have
been remarketed pursuant to Section 3.08(d)(ii) no later than
12:30 p.m. (New York City time) on the purchase date.
ARTICLE IV
APPLICATION OF PROCEEDS AND PAYMENT OF BONDS
Section 4.01. Application of Proceeds. The Issuer will
cause the proceeds of the initial sale of the Bonds to be
deposited with the Trustee. On a date or dates to be designated
by the Company the Trustee will disburse the proceeds of the
initial sale of the Bonds and any investment earnings thereon to
the Refunded Bonds Trustee for deposit in the bond fund created
under the Prior Indenture, to be applied to pay the redemption
price of the Refunded Bonds upon call for redemption.
Pursuant to Section 3.1 of the Agreement, the Company has
agreed to pay to the Refunded Bonds Trustee the amount in excess
of the proceeds of the Bonds needed to pay the redemption price
of the Refunded Bonds.
Section 4.02. Payment of Bonds. The Trustee will make
payments of principal of, premium, if any, and interest on the
Bonds from moneys available to the Trustee under this Indenture
for that purpose. The Trustee will pay the purchase price of
tendered Bonds first from the proceeds of the sale of Bonds under
Section 3.08 and second from other moneys available to the
Trustee for that purpose.
24<PAGE>
All moneys received as proceeds of remarketing the Bonds
under Section 3.08 shall be held segregated by the Trustee in a
separate and segregated trust account. To the extent that the
25<PAGE>
payment of principal or interest on the Bonds is made from moneys
as described in this Section, such payment shall also satisfy and
discharge any payment obligation of the Company under the Note or
the First Mortgage Bonds and the Trustee shall promptly notify
the Company and the Mortgage Trustee in writing if such payment
requirement has not been satisfied. If any Bond is redeemed
prior to maturity or if the Company surrenders any Bond to the
Trustee for cancellation, the Trustee shall cancel such Bond and
surrender to the Company First Mortgage Bonds in a principal
amount and maturing on the date corresponding to the Bond so
redeemed or otherwise cancelled. The Trustee shall promptly give
notice to the Mortgage Trustee of any such redemption or
cancellation of a portion of the First Mortgage Bond.
Section 4.03. Investments of Moneys. The Trustee will
invest and reinvest moneys held by the Trustee as directed by the
Company to the extent permitted by law, 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.
The Trustee may make investments permitted by this Article
through its own bond department or the bond department of any
bank or trust company under common control with the Trustee.
Investments will be made so as to mature or be subject to redemp-
tion at the option of the holder on or before the date or dates
that the Trustee anticipates that moneys from the investments
will be required. The Trustee, when authorized by the Company,
may trade with itself in the purchase and sale of securities for
such investment. Investments will be registered in the name of
the Trustee and held by or under the control of the Trustee. The
Trustee will sell and reduce to cash a sufficient amount of
investments whenever the cash held by the Trustee is
insufficient. The Trustee shall not be liable for any loss from
26<PAGE>
such investments to the extent directed by the Company and to the
extent such directions have been complied with by the Trustee.
Section 4.04. Moneys Held in Trust; Unclaimed Funds. The
Trustee shall deposit into a separate and segregated trust
account for the benefit of the Bondholders all moneys received by
it for any payment on the Bonds. The proceeds of the initial
sale of the Bonds shall be held in a separate and segregated
trust account by the Trustee until disbursed as described in
Section 4.01. Money received by the Remarketing Agent or the
Trustee from the sale of a Bond under Section 3.08 or for the
purchase of a Bond will be held segregated from other funds of
the Remarketing Agent or the Trustee in trust for the benefit of
the person from whom such Bond was purchased or the person
delivering such purchase money, as the case may be, and will not
be invested. The Trustee shall promptly, but in no event later
than 30 days of their original deposit, apply moneys received
from the Company in accordance with this Indenture and as
directed by the Company.
Notwithstanding the provisions of the immediately preceding
paragraph, any moneys which shall be set aside by the Trustee or
deposited by the Trustee with the paying agents 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.
ARTICLE V
BOOK-ENTRY SYSTEM
Section 5.01. Book-Entry System. The Bonds shall be
initially issued in the name of Cede & Co., as nominee for The
Depository Trust Company as the initial Securities Depository and
registered owner of such Bonds, and held in the custody of the
Securities Depository. A single certificate will be issued and
delivered to the Securities Depository for the Bonds. The
Beneficial Owners will not receive physical delivery of Bond
certificates except as provided herein. For so long as the
Securities Depository shall continue to serve as securities
depository for such Bonds as provided herein, all transfers of
beneficial ownership interests will be made by book-entry only on
the records of the Securities Depository, and no investor or
other party purchasing, selling or otherwise transferring
27<PAGE>
beneficial ownership of such Bonds is to receive, hold or deliver
any Bond certificate. The Issuer, the Company and the Trustee
will recognize the Securities Depository or its nominee as the
Bondholder of such Bonds for all purposes, including payment,
notices and voting.
The Issuer and the Trustee covenant and agree, so long as
The Depository Trust Company shall continue to serve as
Securities Depository for the Bonds, to meet the requirements of
The Depository Trust Company with respect to required notices and
other provisions of the Letter of Representations among The
Depository Trust Company, the Issuer, the Trustee, the Company
and the Remarketing Agent, executed with respect to the Bonds.
The Issuer, the Trustee, the Company and the Remarketing
Agent may conclusively rely upon (i) a certificate of the
Securities Depository as to the identity of the Participants in
the Book-Entry-System and (ii) a certificate of any such
Participant as to the identity of, and the respective principal
amount of Bonds beneficially owned by, the Beneficial Owners.
Whenever, during the term of the Bonds, the beneficial
ownership thereof is determined by a book-entry at the Securities
Depository, the requirements in this Indenture of holding,
delivering or transferring Bonds shall be deemed modified to
require the appropriate person to meet the requirements of the
Securities Depository as to registering or registering the
transfer of the book-entry to produce the same effect. Any
provision hereof permitting or requiring delivery of Bonds shall,
while the Bonds are in a Book-Entry System, be satisfied by the
notation on the books of the Securities Depository in accordance
with applicable law.
The Trustee and the Issuer, at the direction and expense of
the Company and with the consent of the Remarketing Agent, may
from time to time appoint a successor Securities Depository and
enter into an agreement with such successor Securities Depository
to establish procedures with respect to the Bonds consistent with
current industry practice. Any successor Securities Depository
shall be a "clearing agency" registered under Section 17A of the
Securities Exchange Act of 1934, as amended.
None of the Issuer, the Company, the Trustee nor the
Remarketing Agent will have any responsibility or obligation to
any Securities Depository, any Participants in the Book-Entry
System or the Beneficial Owners with respect to (i) the accuracy
of any records maintained by the Securities Depository or any
Participant; (ii) the payment by the Securities Depository or by
any Participant of any amount due to any Beneficial Owner in
respect of the principal amount or redemption or purchase price
of, or interest on, any Bonds; (iii) the delivery of any notice
by the Securities Depository or any Participant; (iv) the
28<PAGE>
selection of the Beneficial Owners to receive payment in the
event of any partial redemption of the Bonds; or (v) any other
action taken by the Securities Depository or any Participant.
Bond certificates are required to be delivered to and
registered in the name of the Beneficial Owner, under the
following circumstances:
(a) The Securities Depository determines to
discontinue providing its service with respect to the Bonds
and no successor Securities Depository is appointed as
described above. Such a determination may be made at any
time by giving 30 days' notice to the Issuer, the Company
and the Trustee and discharging its responsibilities with
respect thereto under applicable law.
(b) The Company determines not to continue the Book-
Entry System through a Securities Depository.
The Trustee is hereby authorized to make such changes to the
form of bond attached hereto as Exhibit A which are necessary or
appropriate to reflect that the Book-Entry System is not in
effect, that a successor Securities Depository has been appointed
or that an additional or co-paying agent or tender agent has been
designated pursuant to Section 13.03 hereof.
If at any time, the Securities Depository ceases to hold the
Bonds all references herein to the Securities Depository shall be
of no further force or effect.
ARTICLE VI
COVENANTS
Section 6.01. Payment of Bonds. The Issuer will promptly
pay the principal of, premium, if any, and interest on, and other
amounts due with respect to, the Bonds on the dates and in the
manner provided in the Bonds, but only from the amounts assigned
to and held by the Trustee under this Indenture. 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 costs incidental
thereto.
Section 6.02. Performance of Covenants; Issuer. The Issuer
covenants that it will faithfully perform at all times any and
29<PAGE>
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 Bonds authorized hereby and to execute this
Indenture, to assign and pledge the Note and the Agreement and
the amounts payable under the Note 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 Bonds and the execution and delivery of
this Indenture has been duly and effectively taken; and that the
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 6.03. Recording and Filing; Further Assurances.
The Issuer will execute and deliver such supplemental indentures
and such further instruments, and do such further acts, as the
Trustee may reasonably require for the better assuring, assigning
and confirming to the Trustee the amounts assigned under this
Indenture for the payment of 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 Note, the
First Mortgage Bonds or the Agreement, if any, except the lien of
this Indenture.
Section 6.04. Tax Covenants. The Issuer covenants that it
shall take no action nor make any investment or use of the
proceeds of the Bonds or any other moneys which would cause the
Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Code 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
30<PAGE>
monies held under any fund or account created hereunder shall be
to invest such monies in accordance with Section 4.03 hereof in
each case pursuant to the instructions received by the Trustee in
accordance with Section 4.03 hereof.
Section 6.05. 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.
Section 6.06. 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 6.07. 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 VII
DISCHARGE OF INDENTURE
Section 7.01. Bonds Deemed Paid; Discharge of Indenture.
Any Bond will be deemed paid for all purposes of this Indenture
when (a) payment of the principal of and interest on the Bond to
the due date of such principal and interest (whether at maturity,
upon redemption or otherwise) or the payment of the purchase
price either (1) has been made in accordance with the terms of
the Bonds or (2) has been provided for by depositing with the
Trustee in trust (A) moneys in an amount which are sufficient to
make such payment and/or (B) Government Obligations maturing as
to principal and interest in such amounts and at such times as
31<PAGE>
will insure, without any further reinvestment, the availability
of sufficient moneys to make such payment, and (b) all
compensation and reasonable expenses of the Trustee pertaining to
each Bond in respect of which such deposit is made have been paid
or provided for to the Trustee's satisfaction. When a Bond is
deemed paid, it will no longer be secured by or entitled to the
benefits of this Indenture or be an obligation of the Issuer, and
shall be payable solely from the moneys or Government Obligations
under (a)(2) above, except that such Bond may be tendered if and
as provided in the Bonds and it may be registered as transferred,
exchanged, registered, discharged from registration or replaced
as provided in Article II.
Notwithstanding the foregoing, upon the deposit of funds or
Government Obligations under clause (a)(2) of the first paragraph
of this Section, the purchase price of tendered Bonds shall be
paid from the sale of Bonds under Section 3.08. If payment of
such purchase price is not made from the sale of Bonds pursuant
to Section 3.08, payment shall be made from funds (or Government
Obligations) on deposit pursuant to this Section without the need
of any further instruction or direction by the Company, in which
case such Bonds shall be surrendered to the Trustee and
cancelled.
Notwithstanding the foregoing, no deposit under
clause (a)(2) of the first paragraph of this Section shall be
deemed a payment of a Bond until the (1) Company has furnished
the Trustee an Opinion of Tax Counsel to the effect that the
deposit of such cash or Government Obligations will not cause the
Bonds to become "arbitrage bonds" under Section 148 of the Code
and (2) (a) notice of redemption of the Bond is given in
accordance with Article III or, if the Bond is not to be redeemed
or paid within the next 60 days, until the Company has given the
Trustee, in form satisfactory to the Trustee, irrevocable
instructions (i) to notify, as soon as practicable, the owner of
the Bond, in accordance with Article III, that the deposit
required by (a)(2) above has been made with the Trustee and that
the Bond is deemed to be paid under this Article and stating the
maturity or redemption date upon which moneys are to be available
for the payment of the principal of the Bond, and premium, if
any, and interest on such Bond, if the Bond is to be redeemed
rather than paid and (ii) to give notice of redemption not less
than 30 nor more than 60 days prior to the redemption date for
such Bond or (b) the maturity of the Bond.
When all outstanding Bonds are deemed paid under the
foregoing provisions of this Section, the Trustee will upon
request acknowledge the discharge of the lien of this Indenture,
provided, however that the obligations relating to the tender for
purchase as provided in the Bonds and obligations under
Article II in respect of the registration of transfer, exchange,
32<PAGE>
registration, discharge from registration and replacement of
Bonds shall survive the discharge of the lien of the Indenture.
Section 7.02. Application of Trust Money. The Trustee
shall hold in trust money or Government Obligations deposited
with it pursuant to the preceding Section and shall apply the
deposited money and the money from the Government Obligations in
accordance with this Indenture only to the payment of principal
of, premium, if any, and interest on the Bonds and to the payment
of the purchase price of tendered Bonds.
Section 7.03. Repayment to Company. The Trustee shall
promptly pay to the Company upon request any excess money or
securities held by the Trustee at any time under this Article and
any money held by the Trustee under any provision of this
Indenture for the payment of principal or interest or for the
purchase of Bonds that remains unclaimed for six years.
ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.01. Events of Default. An "Event of Default" is
any of the following:
(a) Default in the payment of any interest on any
Bond when due and as the same shall become due and payable,
which default continues for five days.
(b) Default in the due and punctual payment of
principal on any Bond when due and payable, whether at
maturity, upon redemption, or by declaration or otherwise.
(c) Default in the due and punctual payment of the
purchase price of any Bond required to be purchased in
accordance with its terms.
(d) Acceleration for any reason of the maturity of
all first mortgage bonds issued by the Company under the
Company Indenture, and such acceleration shall not have been
rescinded.
(e) An event of default has occurred and is
continuing under the Agreement.
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
33<PAGE>
and payable; and such principal and interest shall thereupon
become and be immediately due and payable.
If after the principal of the Bonds and the accrued interest
thereon have been so declared to be due and payable, all arrears
of interest and interest on overdue installments of interest (if
lawful) 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 Mortgage Trustee, any
demand made by the Trustee pursuant to the Company Indenture.
Section 8.03. Other Remedies. If an Event of Default
occurs and is continuing, subject to Section 8.06, the Trustee,
before or after declaring the principal of the Bonds and the
interest accrued thereon immediately due and payable, may, and
upon request of the holders of at least 25% in principal amount
of the Bonds then outstanding shall, pursue any available remedy
by proceeding at law or in equity available to the Trustee under
the Agreement, the Note or the First Mortgage Bonds to collect
the principal of or interest on the Bonds or the First Mortgage
Bonds or to enforce the performance of any provision of the
Bonds, the Note, this Indenture or the Agreement.
The Trustee, as the assignee of all the right, title and
interest of the Issuer in and to the Agreement, the Note and the
First Mortgage Bonds, may enforce each and every right granted to
the Issuer under the Agreement, the Note and the First Mortgage
Bonds. 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 Proceeding 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
34<PAGE>
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 Bondholder
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 default or shall
impair any rights or remedies consequent thereon.
Section 8.05. 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 8.06. Waiver of Past Defaults. The holders of a
majority in principal amount of the Bonds then outstanding by
notice to the Trustee may waive an existing Event of Default and
its consequences. When an Event of Default is waived, it is
35<PAGE>
cured and stops continuing, but no such waiver shall extend to
any subsequent or other Event of Default or impair any right
consequent to it.
Section 8.07. Control by Majority. The holders of a
majority in principal amount of the Bonds then outstanding may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any
trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture
or, subject to Section 9.01, that the Trustee determines is
unduly prejudicial to the rights of other Bondholders, or would
involve the Trustee in personal liability.
Section 8.08. Limitation on Suits. A Bondholder may not
pursue any remedy with respect to this Indenture or the Bonds
unless (a) the holder gives the Trustee notice stating that an
Event of Default is continuing, (b) the holders of at least 25%
in principal amount of the Bonds then outstanding make a written
request to the Trustee to pursue the remedy, (c) such holder or
holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense and (d) the
Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; 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 the 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.
A Bondholder may not use this Indenture to prejudice the
rights of another Bondholder or to obtain a preference or
priority over the other Bondholders.
Section 8.09. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any holder to receive payment of principal of and interest on
a Bond, on or after the due dates expressed in the Bond, or the
purchase price of a Bond on or after the date for its purchase as
provided in the Bond, or to bring suit for the enforcement of any
such payment on or after such dates, shall not be impaired or
affected without the consent of the holder.
36<PAGE>
Section 8.10. Collection Suit by Trustee. If an Event of
Default under Section 8.01(a), (b) or (c) occurs and is
continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole
amount remaining unpaid.
Section 8.11. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Bondholders allowed in any judicial
proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations,
may vote on behalf of the holders in any election of a trustee in
bankruptcy or other person performing similar functions. In the
event of a bankruptcy or reorganization of the Company, the
Trustee may file a proof of claim on behalf of all Bondholders
with respect to the obligations of the Company pursuant to the
Agreement and the Note, including a proof of claim with respect
to the obligation of the Company under the First Mortgage Bonds,
and any such claim with respect to the First Mortgage Bonds shall
reduce the claim of the Mortgage Trustee pro tanto.
Section 8.12. Priorities. If the Trustee collects any
money pursuant to this Article, it shall pay out the money in the
following order:
FIRST: To the Trustee for amounts to which it is
entitled under Section 9.02.
SECOND: To Bondholders for amounts due and unpaid on
the Bonds for principal and interest,
ratably, without preference or priority of
any kind, according to the amounts due and
payable on the Bonds for principal and
interest, respectively.
THIRD: To the Company.
The Trustee may fix a payment date for any payment to the
Bondholders.
Section 8.13. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This
Section does not apply to a suit by the Trustee, a suit by a
37<PAGE>
holder pursuant to Section 8.07 or a suit by holders of more than
10% in principal amount of the Bonds then outstanding.
ARTICLE IX
TRUSTEE AND REMARKETING AGENT
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 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
38<PAGE>
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
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
39<PAGE>
any of the payments to the Trustee required to be made by
Article IV 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 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, 8.08, 8.09 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
40<PAGE>
for interest on any moneys received hereunder except such as
may be mutually agreed upon.
(n) No provision of the Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers.
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 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.
41<PAGE>
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 3.04 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 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
42<PAGE>
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 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 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 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 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 Note 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 the Note or First Mortgage Bonds, and the
Trustee is authorized to enter into an agreement with the Company
43<PAGE>
to such effect, including a consent to the issuance of stop
transfer instructions to the 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 Note and the First Mortgage Bonds, at or prior to
the issuance of the 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.
Section 9.14 Duties of Remarketing Agent. The Remarketing
Agent will set the interest rates on the Bonds and perform the
other duties provided for in Section 2.02 and will remarket the
Bonds as provided in Section 3.08, subject to any provisions of a
remarketing agreement between the Company and the Remarketing
Agent. The Remarketing Agent may for its own account or as
broker or agent for others deal in Bonds and may do anything any
other Bondholder may do to the same extent as if the Remarketing
Agent were not serving as such.
Section 9.15 Eligibility of Remarketing Agent. The
initial Remarketing Agent appointed under this Indenture is
Lehman Brothers Inc. The Remarketing Agent will be a bank, trust
company or member of the National Association of Securities
Dealers, Inc. organized and doing business under the laws of the
United States or any state or the District of Columbia, will have
a combined capital stock, surplus and undivided profits of at
least $15,000,000 as shown in its most recent published annual
report, will be a Participant in the Securities Depository and
will be authorized by law to perform all the duties imposed upon
it by this Indenture. Any successor Remarketing Agent shall be
rated at least Baa3/P-3 or otherwise qualified by Moody's
Investors Service, Inc. or have an equivalent rating of another
rating agency.
Section 9.16 Replacement of Remarketing Agent. The
Remarketing Agent may resign by notifying the Issuer, Trustee and
Company. Such resignation will take effect on the day a
successor Remarketing Agent appointed in accordance with this
Section has accepted the appointment or, if no successor has so
accepted, 30 days after notice of resignation has been sent. The
Company may remove the Remarketing Agent at any time by an
instrument signed by the Company and filed with the Remarketing
Agent, the Issuer and the Trustee at least 30 days prior to the
44<PAGE>
effective date of such removal (which will not in any event occur
prior to the appointment of a successor Remarketing Agent). A
new Remarketing Agent may be appointed by the Company upon the
resignation or removal of the Remarketing Agent. The Trustee
shall promptly notify the Bondholders of any change in the
Remarketing Agent.
Section 9.17. Compensation of Remarketing Agent. The
Remarketing Agent will not be entitled to any compensation from
the Issuer, the Trustee or any property held under this Indenture
but must make separate arrangements with the Company for
compensation.
Section 9.18. Successor Remarketing Agent. If the
Remarketing Agent consolidates with, merges or converts into, or
transfers all or substantially all its assets (or, in the case of
a bank or trust company, its corporate trust assets) to another
corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Remarketing Agent,
provided that such successor shall be eligible under the
applicable provisions in this Article.
ARTICLE X
AMENDMENTS OF AND SUPPLEMENTS TO INDENTURE
Section 10.01. Without Consent of Bondholders. The Issuer
and the Trustee may amend or supplement this Indenture or the
Bonds without notice to or consent of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal
defect or omission,
(b) to grant to the Trustee for the benefit of the
Bondholders additional rights, remedies, powers or
authority,
(c) to subject to this Indenture additional
collateral or to add other agreements of the Issuer,
(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture Act of 1939, as
amended, or any similar federal statute at the time in
effect, or to permit the qualification of the Bonds for sale
under the securities laws of any state of the United States,
(e) to authorize different authorized denominations
of the Bonds and to make correlative amendments and
modifications to this Indenture regarding exchangeability of
Bonds of different authorized denominations, redemptions of
portions of Bonds of particular authorized denominations and
similar amendments and modifications of a technical nature,
45<PAGE>
(f) to increase or decrease the number of days
specified for the giving of notices in Section 2.02 and to
make corresponding changes to the period for notice of
redemption of the Bonds; provided that no decreases in any
such number of days shall become effective except while the
Bonds bear interest at a Daily Rate or a Weekly Rate and
until 30 days after the Trustee has given notice to the
owners of the Bonds,
(g) to provide for an uncertificated system of
registering the Bonds or to provide for the change to or
from a Book-Entry System for the Bonds,
(h) to evidence the succession of a new Trustee or
the appointment by the Trustee or the Issuer of a co-
trustee, or
(i) to make any change (including a change in Section
4.01 to reflect any amendment to the Code or interpretations
by the Internal Revenue Service of the Code) that does not
materially adversely affect the rights of any Bondholder.
Section 10.02. With Consent of Bondholders. If an amendment
of or supplement to this Indenture or the Bonds without any
consent of Bondholders is not permitted by the preceding Section,
the Issuer and the Trustee may enter into such amendment or
supplement without prior notice to any Bondholders but with the
consent of the holders of at least a majority in aggregate
principal amount of the Bonds then outstanding. However, without
the consent of each Bondholder affected, no amendment or
supplement may (a) extend the maturity of the principal of, or
interest on, any Bond or the First Mortgage Bonds, (b) reduce the
principal amount of, or rate of interest on, any Bond or the
First Mortgage Bonds, (c) effect a privilege or priority of any
Bond or Bonds over any other Bond or Bonds, (d) reduce the
percentage of the principal amount of the Bonds required for
consent to such amendment or supplement, (e) impair the exclusion
from federal gross income of interest on any Bond, (f) eliminate
the holders' rights to tender the Bonds, or any mandatory
redemption of the Bonds, extend the due date for the purchase of
Bonds tendered by the holders thereof or call for mandatory
redemption or reduce the purchase or redemption price of such
Bonds, (g) create a lien ranking prior to or on a parity with the
lien of this Indenture on the property described in the Granting
Clause of this Indenture or (h) deprive any Bondholder of the
lien created by this Indenture on such property. In addition, if
moneys or Government Obligations have been deposited or set aside
with the Trustee pursuant to Article VII for the payment of Bonds
and those Bonds shall not have in fact been actually paid in
full, no amendment to the provisions of that Article shall be
made without the consent of the holder of each of those Bonds
affected.
46<PAGE>
Section 10.03. Effect of Consents. Any consent received
pursuant to Section 10.02 will bind each Bondholder delivering
such consent and each subsequent holder of a Bond or portion of a
Bond evidencing the same debt as the consenting holder's Bond.
Section 10.04. Notation on or Exchange of Bonds. If an
amendment or supplement changes the terms of a Bond, the Trustee
may require the holder to deliver it to the Trustee. The Trustee
may place an appropriate notation on the Bond about the changed
terms and return it to the holder. Alternatively, if the
Trustee, the Issuer and the Company determine, the Issuer in
exchange for the Bond will issue and the Trustee will
authenticate a new Bond that reflects the changed terms.
Section 10.05. Signing by Trustee of Amendments and
Supplements. The Trustee will sign any amendment or supplement
to the Indenture or the Bonds authorized by this Article if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing an amendment
or supplement, the Trustee will be entitled to receive and
(subject to Section 9.01) will be fully protected in relying on
an Opinion of Counsel stating that such amendment or supplement
is authorized by this Indenture.
Section 10.06. Company Consent Required. An amendment or
supplement to this Indenture or the Bonds shall not become
effective unless the Company delivers to the Trustee its written
consent to the amendment or supplement.
Section 10.07. Notice to Bondholders. The Trustee shall
cause notice of the execution of each supplement or amendment to
this Indenture or the Agreement to be mailed to the Bondholders.
The notice will at the option of the Trustee, either (i) briefly
state the nature of the amendment or supplement and that copies
of it are on file with the Trustee for inspection by Bondholders
or (ii) enclose a copy of such amendment or supplement.
ARTICLE XI
AMENDMENTS OF AND SUPPLEMENTS TO THE AGREEMENT
OR FIRST MORTGAGE BONDS
Section 11.01. Without Consent of Bondholders. The Issuer
may enter into, and the Trustee may consent to, any amendment of
or supplement to the Agreement or the Note, or may waive
compliance by the Company of any provision of the Agreement or
the Note, and the Trustee, as holder of the First Mortgage Bonds,
may consent to any amendment of or supplement to the Company
Indenture or the First Mortgage Bonds, in each case without
notice to or consent of any Bondholder, if the amendment,
supplement or waiver is required or permitted (a) by the
47<PAGE>
provisions of the Agreement or this Indenture, (b) to cure any
ambiguity, inconsistency or formal defect or omission, (c) to
identify more precisely the Project, (d) in connection with any
authorized amendment of or supplement to this Indenture or (e) to
make any change that in the judgment of the Trustee does not
materially adversely affect the rights of any Bondholder.
Section 11.02. With Consent of Bondholders. If an amendment
of or supplement to the Agreement, the Note, the Company
Indenture or the First Mortgage Bonds without any consent of
Bondholders is not permitted by the foregoing Section, the Issuer
may enter into, and/or the Trustee may consent to (as the case
may be), such amendment or supplement, or may waive compliance by
the Company of any provision of the Agreement, without notice to
any Bondholder but with the consent of the holders of at least a
majority in aggregate principal amount of the Bonds then
outstanding. However, without the consent of each Bondholder
affected thereby, no amendment, supplement or waiver may result
in anything described in the lettered clauses of Section 10.02.
Section 11.03. Consents by Trustee to Amendments or
Supplements. The Trustee will consent to any amendment or
supplement to the Agreement, the Note, the Company Indenture or
the First Mortgage Bonds authorized by this Article if the
amendment or supplement does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing a consent to
an amendment or supplement, the Trustee shall be entitled to
receive and (subject to Section 9.01) shall be fully protected in
relying on an Opinion of Counsel stating that such amendment or
supplement is authorized or permitted by this Indenture.
ARTICLE XII
VOTING OF FIRST MORTGAGE BONDS
Section 12.01. Voting of Mortgage Bond Held by the Trustee.
The Trustee, as a holder of First Mortgage Bonds, shall attend
any meeting of bondholders under the Company Indenture 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 the holders 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
48<PAGE>
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 proposal would
so affect the rights of some but less than all the outstanding
Bonds, the consent thereto of the holders of at least 50% in
aggregate principal amount of the Bonds so affected.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Notices. (a) Any notice, request, direction,
designation, consent, acknowledgment, certification, appointment,
waiver or other communication required or permitted by this
Indenture or the Bonds must be in writing except as expressly
provided otherwise in this Indenture or the Bonds.
(b) Any notice or other communication shall be sufficiently
given and deemed given when delivered by hand or mailed by first-
class mail, postage prepaid, addressed as follows: if to the
Issuer, c/o Board of Commissioners of Monroe County, Forsyth,
Georgia 31029; if to the Trustee, to 3350 Cumberland Circle,
Suite 10-681, Atlanta, Georgia 30339, 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 Remarketing Agent, to Lehman Brothers Inc., 3 World
Financial Center, New York, New York 10285, Attention: Municipal
Note Desk. Any addressee may designate additional or different
addresses for purposes of this Section.
Section 13.02. Bondholders' Consents. Any consent or other
instrument required by this Indenture to be signed by Bondholders
may be in any number of concurrent documents and may be signed by
a Bondholder or by the holder's agent appointed in writing.
Proof of the execution of such instrument or of the instrument
appointing an agent and of the ownership of Bonds, if made in the
following manner, shall be conclusive for any purposes of this
Indenture with regard to any action taken by the Trustee under
the instrument:
(a) The fact and date of a person's signing an
instrument may be proved by the certificate of any officer
in any jurisdiction who by law has power to take
acknowledgments within that jurisdiction that the person
signing the writing acknowledged before the officer the
execution of the writing, or by an affidavit of any witness
to the signing.
(b) The fact of ownership of Bonds, the amount or
amounts, numbers and other identification of such Bonds and
49<PAGE>
the date of holding shall be proved by the registration
books kept pursuant to this Indenture.
In determining whether the holders of the required principal
amount of Bonds outstanding have taken any action under this
Indenture, Bonds owned by the Company or any person controlling,
controlled by or under common control with the Company shall be
disregarded and deemed not to be outstanding. In determining
whether the Trustee shall be protected in relying on any such
action, only Bonds which the Trustee knows to be so owned shall
be disregarded.
Any consent or other instrument shall be irrevocable and
shall bind any subsequent owner of such Bond or any Bond
delivered in substitution therefor.
Section 13.03. Appointment of Separate Paying Agent and/or
Tender Agent. If, at any time, the Securities Depository ceases
to hold the Bonds, with the effect that the Bonds are no longer
subject to the Book-Entry System, then the Issuer and the
Trustee, acting at the request of the Company, may appoint one or
more banks or trust companies to act as paying agent and/or
tender agent for the Bonds hereunder. Any such paying agent or
tender agent shall be a bank or trust company organized under the
laws of the United States of America or any state thereof, shall
have a reported capital and surplus of at least $100,000,000 and
a corporate trust office located in New York, New York at which
Bonds may be presented for payment or purchase and shall perform
such duties and responsibilities as may be delegated to it
hereunder. If such a paying agent or tender agent is appointed,
then all references herein to the "Trustee" shall include such
paying agent or tender agent to the extent of the duties
performed by such entity.
Section 13.04. Limitation of Rights. Nothing expressed or
implied in this Indenture or the Bonds shall give any person
other than the Trustee, Issuer, Company, Remarketing Agent and
the Bondholders any right, remedy or claim under or with respect
to this Indenture.
Section 13.05. 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
whatsoever.
Section 13.06. Payments Due on Non-Business Days. If a
payment date is not a Business Day at the place of payment, then
payment may be made at that place on the next Business Day, and
no interest shall accrue for the intervening period.
50<PAGE>
Section 13.07. Governing Law. This Indenture shall be
governed exclusively by and construed in accordance with the
applicable laws of the State.
Section 13.08. Captions. The captions in this Indenture are
for convenience only and do not define or limit the scope or
intent of any provisions or Sections of this Indenture.
Section 13.09. 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.
Section 13.10. Counterparts. This Indenture may be signed
in several counterparts. Each will be an original, but all of
them together constitute the same instrument.
51<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 Bank South, 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
[SEAL] MONROE COUNTY
By: /s/James A. Vaughn
Chairman
Attest:
/s/Marvin T. Carr, Jr.
Secretary
BANK SOUTH, as Trustee
[SEAL] By: /s/Bronwyn B. Fowlkes
Title: Vice President
Attest:
/s/Edward S. Linsley
Title: Vice President<PAGE>
Exhibit A
UNITED STATES OF AMERICA
STATE OF GEORGIA
No. R-1 $40,000,000
DEVELOPMENT AUTHORITY
OF MONROE COUNTY (GEORGIA)
POLLUTION CONTROL REVENUE BOND
(GEORGIA POWER COMPANY PLANT SCHERER PROJECT)
SECOND SERIES 1995
TYPE OF INTEREST
MATURITY DATE DATED DATE CUSIP RATE PERIOD
July 1, 2025 July 13, 1995 610 530 CR 6 Daily
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: $40,000,000
Development Authority of Monroe County (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 sources
described in this Bond, to the Registered Owner identified above,
or registered assigns, on the Maturity Date stated above (or if
this Bond is called for earlier redemption as described herein,
on the redemption date) the principal amount identified above and
to pay interest as provided in this Bond.
1. Indenture; Agreement. This Bond is one of the bonds
(the "Bonds"), limited to $40,000,000 in principal amount, issued
under the Trust Indenture dated as of July 1, 1995 (the
"Indenture"), between the Issuer and Bank South, as trustee (the
"Trustee"). The terms of the Bonds include those in the
Indenture. Bondholders are referred to the Indenture for a
statement of those terms. When used with reference to the Bonds,
the term "principal" includes any premium payable on those Bonds.
Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Indenture.
The Issuer has entered into a Loan Agreement dated as of
July 1, 1995 (the "Agreement") with Georgia Power Company, a
Georgia corporation (the "Company"). Under the provisions of the
Agreement the Issuer has loaned the proceeds of the Bonds of this
series to the Company (the "Loan"). In order to evidence the
Loan and the Company's obligation to repay the same, the Company
53<PAGE>
has executed and delivered its non-negotiable promissory note
(the "Note"). The Note provides for the repayment by the Company
of the Loan, including interest thereon, in installments
sufficient to pay the principal of, purchase price 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
(as hereinafter defined). The Note provides that the payments
thereunder shall be paid directly to the Trustee as assignee of
the Issuer. The Issuer has assigned its rights to such payments
under the Agreement and the Note to the Trustee as security for
the Bonds. The proceeds of the Bonds will be used to refund
certain outstanding revenue bonds issued to finance the interest
of the Company in certain air and water pollution control and
sewage and solid waste disposal facilities (the "Project")
located at the Scherer steam electric generating plant (the
"Plant") in Monroe County, Georgia. The Company has issued its
First Mortgage Bonds, Second Pollution Control Series due July 1,
2025 in the aggregate principal amount of $40,000,000 (the "First
Mortgage Bonds") pursuant to the Indenture dated as of March 1,
1941 from the Company to Chemical Bank, as trustee, as
supplemented and amended (the "Company Indenture"), to evidence
and secure its obligation to pay the amounts due under the Note.
The Indenture, the Agreement and the Note may be amended,
and references to them include any amendments.
The Issuer has established a book-entry only system of
registration for the Bonds (the "Book-Entry System"). Except as
specifically provided otherwise in the Indenture, a Securities
Depository (or its nominee) will be the registered owner of this
Bond. By acceptance of a confirmation of purchase, delivery or
transfer, the Beneficial Owner (if any) of this Bond shall be
deemed to have agreed to this arrangement. If the Securities
Depository (or its nominee) is the registered owner of this Bond,
it shall be treated as the owner of it for all purposes.
2. Source of Payments. The principal of, premium, if any,
and interest on the Bonds are limited obligations of the Issuer
and, as provided in the Indenture, are payable solely and only
from payments derived from the Agreement and the Note, or from
the First Mortgage Bonds, and from any other moneys held by the
Trustee under the Indenture for such purpose. 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 resolutions adopted by the Issuer on August 31,
1994, and July 11, 1995, which resolutions authorize the
execution and delivery of the Agreement and the Indenture. The
Bonds and the interest thereon are limited special obligations of
the Issuer and are payable solely from the revenues and other
amounts derived from the Agreement, Note and First Mortgage Bonds
54<PAGE>
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 Note 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 for the account of the
Issuer and deposited in a special trust account created by the
Issuer and have been duly pledged and assigned for that 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 the Bonds the 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.
3. Interest Rate. Interest on this Bond will be paid at
the lesser of (a) a Daily Rate, a Weekly Rate, a Commercial Paper
Rate or a Long-Term Interest Rate as selected by the Company and
as determined in accordance with the Indenture and (b) 15%.
Interest will initially be payable at a Daily Rate as set forth
in the Indenture. The Company may change the interest rate
determination method from time to time. A change in the method
will result in mandatory redemption of the Bonds (see
"Redemption" below). While there exists an Event of Default
under the Indenture, the interest rate on the Bonds will be the
rate on the Bonds on the day before the Event of Default
occurred, except that if interest on any Bond was then payable at
a Commercial Paper Rate, the interest rate for all Bonds then
bearing interest at a Commercial Paper Rate will be the highest
Commercial Paper Rate then in effect for any Bond.
When interest is payable at a Daily, Weekly or Commercial
Paper Rate, it will be computed on the basis of the actual number
of days elapsed over a year of 365 days (366 in leap years), and
when payable at a Long-Term Interest Rate on the basis of a 360-
day year of twelve 30-day months. Interest on overdue principal
and, to the extent lawful, on overdue premium and interest will
be payable at the rate on the Bonds on the day before the default
occurred.
4. Interest Payment and Record Dates. Interest will
accrue on the unpaid portion of the principal of this Bond from
55<PAGE>
the Dated Date stated above and thereafter from the Interest
Payment Date (as hereinafter defined) next preceding the date of
authentication hereof to which interest has been paid or duly
provided for, unless the date of authentication hereof is an
Interest Payment Date to which interest has been paid or duly
provided for, in which case from the date of authentication
hereof, or unless no interest has been paid or duly provided for
on the Bonds of this series, in which case from said Dated Date;
provided, however, that if the date of authentication is between
the Record Date (as hereinafter defined) for any Interest Payment
Date and such Interest Payment Date, then interest will accrue
from such Interest Payment Date or, if the Company shall default
in payment of the interest due on such Interest Payment Date,
then from the next preceding Interest Payment Date to which
interest has been paid or duly provided for, or if no interest
has been paid or duly provided for, then from said Dated Date.
When interest is payable at the rate in the first column below,
interest accrued during the period (an "Interest Period") shown
in the second column will be paid on the date (an "Interest
Payment Date") in the third column to holders of record on the
date (a "Record Date") in the fourth column:
56<PAGE>
INTEREST
RATE INTEREST PERIOD PAYMENT DATE RECORD DATE
Daily* Calendar month Fifth Last Business
Business Day Day
of the next of the month
month
Weekly * Calendar month First Last Business
Business Day Day
of the next before
month Interest
Payment Date
Commercial From 1 to 365 Day after the Last Business
Paper days last Day
as determined for day of before
each Bond Commercial Interest
pursuant to Paper Period Payment Date
Section
2.02(a)(3) of
the Indenture
("Commercial
Paper
Period")
* If there shall be a change from a Daily Rate or a Weekly
Rate on a day other than the first day of a calendar month, the
then current Interest Period relating to such Daily Rate or
Weekly Rate shall end on the day immediately preceding the date
on which the new interest rate on the Bonds shall become
effective, which date in the case of a change from a Weekly Rate,
shall be the Interest Payment Date for such Interest Period, for
which the Record Date shall be the immediately preceding Business
Day; but in the case of a change from a Daily Rate, the Interest
Payment Date for such Interest Period shall be the fifth Business
Day after the last day of such Interest Period, for which the
Record Date shall be the last Business Day of such Interest
Period. If such new interest rate shall be a Daily Rate or a
Weekly Rate, the first Interest Period relating thereto shall
begin on the effective date of such new interest rate and end on
the last day of the then current calendar month, for which the
Interest Payment Date and the Record Date shall be as prescribed
in this Table.
57<PAGE>
INTEREST
RATE INTEREST PERIOD PAYMENT DATE RECORD DATE
Long-Term** Six-month period Next day Fifteenth of
or (January 1 the
portion thereof or July 1) month before
ending December the
31 or Interest
June 30 Payment
Date
(December 15
or
June 15) ***
"Business Day" is defined in the Indenture. Payment of defaulted
interest will be made to holders of record as of the fifth-to-
last Business Day before payment.
5. Method of Payment. Holders must surrender Bonds to the
Trustee to collect principal at maturity or upon redemption.
(See "Tenders" below for the payment of purchase price of
tendered Bonds.) Interest on Bonds bearing interest at a
Commercial Paper Rate is payable only upon presentation of such
Bonds to the Trustee. Interest on Bonds bearing interest at a
Daily, Weekly or Long-Term Interest Rate will be paid to the
registered holder hereof as of the Record Date by check mailed by
first-class mail on the Interest Payment Date to such holder's
registered address. A holder of $1,000,000 or more in principal
**If there shall be a change from a Long-Term Interest Rate
on a day other than the day after the last day of the then
current Long-Term Interest Rate Period, or if there shall be an
early termination of such Long-Term Interest Rate Period and a
new Long-Term Interest Rate shall be set, such Long-Term Interest
Rate Period shall end on the day immediately preceding the date
on which the new interest rate shall become effective, which date
shall be the Interest Payment Date for such Long-Term Interest
Rate Period, for which the Record Date shall be 15 days prior to
such Interest Payment Date or, if sooner, the first day of such
Long-Term Interest Rate Period. If such new interest rate shall
be a Daily Rate or a Weekly Rate, the first Interest Period
relating thereto shall begin on the effective date of such new
interest rate and end on the last day of the then current
calendar month, for which the Interest Payment Date and the
Record Date shall be as prescribed in this Table.
***If an Interest Payment Date occurs less than 15 days after
the first day of a Long-Term Interest Rate Period, the first day
of such Long-Term Interest Rate Period is the Record Date for
such Interest Payment Date.
58<PAGE>
amount of Bonds may be paid interest at a Daily, Weekly or
Commercial Paper Rate by wire transfer in immediately available
funds to an account in the continental United States if the
holder makes a written request of the Trustee (in form
satisfactory to the Trustee) at least two Business Days before
the Record Date specifying the account address. The notice may
provide that it will remain in effect for later interest payments
until changed or revoked by another written notice. Principal
and interest will be paid in money of the United States that at
the time of payment is legal tender for payment of public and
private debts or by checks or wire transfers payable in such
money. If any payment on the Bonds is due on a non-Business Day,
it will be made on the next Business Day, and no interest will
accrue as a result.
6. Tenders. "Tender" means to require, or the act of
requiring, the Trustee to purchase a Bond at the holder's option
under the provisions of this Section 6 at 100% of the principal
amount plus interest accrued to the date of purchase. During a
Daily Rate Period, if a Bond is tendered after the Record Date
and before the Interest Payment Date for that Interest Period,
the Trustee will pay (but only from funds available therefor as
provided in the Indenture) a purchase price of principal plus
interest accruing after the last day of that Interest Period.
The holder will receive interest for that Interest Period by
check or wire transfer as described in Section 5 above.
Daily Rate Tender. When interest on the Bonds is
payable at a Daily Rate and a Book-Entry System is in
effect, a Beneficial Owner (through its direct Participant
in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable
written notice or an irrevocable telephone notice, promptly
confirmed in writing, to the Trustee (any such telephone
notice to be delivered to a trust officer of the Trustee)
and an irrevocable notice by telephone, telegraph or
facsimile transmission to the Remarketing Agent, in each
case by 11:00 a.m., New York City time, on a Business Day,
stating the principal amount of the Bond (or portion of
Bond) being tendered, payment instructions for the purchase
price and the Business Day (which may be the date the notice
is delivered) the Bond (or portion of Bond) is to be
purchased. The Beneficial Owner shall effect delivery of
such Bonds by causing such direct Participant to transfer
its interest in the Bonds equal to such Beneficial Owner's
interest on the records of the Securities Depository to the
participant account of the Trustee with the Securities
Depository. Any notice received by the Trustee after 11:00
a.m., New York City time, shall be deemed to have been given
on the next Business Day.
59<PAGE>
When interest on the Bonds is payable at a Daily Rate
and a Book-Entry System is not in effect, a holder of a Bond
may tender the Bond (or portion of Bond) by delivering the
notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the
Bond to the Trustee by 1:00 p.m., New York City time, on the
date of purchase (see additional requirements below).
Weekly Rate Tender. When interest on the Bonds is
payable at a Weekly Rate and a Book-Entry System is in
effect, a Beneficial Owner (through its direct Participant
in the Securities Depository) may tender his interest in a
Bond (or portion of Bond) by delivering an irrevocable
written notice or an irrevocable telephone notice, promptly
confirmed in writing, to the Trustee (any such telephone
notice to be delivered to a trust officer of the Trustee)
and an irrevocable notice by telephone, telegraph or
facsimile transmission to the Remarketing Agent, in each
case prior to 5:00 p.m., New York City time on a Business
Day stating the principal amount of the Bond (or portion of
Bond) being tendered, payment instructions for the purchase
price, and the date, which must be a Business Day at least
seven days after the notice is delivered, on which the Bond
(or portion of Bond) is to be purchased. The Beneficial
Owner shall effect delivery of such Bonds by causing such
direct Participant to transfer its interest in the Bonds
equal to such Beneficial Owner's interest on the records of
the Securities Depository to the participant account of the
Trustee with the Securities Depository.
When interest on the Bonds is payable at a Weekly Rate
and a Book-Entry System is not in effect, a holder of a Bond
may tender the Bond (or portion of Bond) by delivering the
notices as described above (which shall include the
certificate number of the Bond), and shall also deliver the
Bond to the Trustee by 1:00 p.m., New York City time, on the
date of purchase (see additional requirements below).
Payment of Purchase Price. The purchase price for a
tendered Bond will be paid in immediately available funds to the
registered owner of the Bond by the close of business on the date
of purchase.
7. Delivery Address; Additional Delivery Requirements.
Notices in respect of tenders and Bonds tendered must be
delivered to the Trustee as follows:
60<PAGE>
Bank South
3350 Cumberland Circle, Suite 10-681
Atlanta, Georgia 30339
Attention: Corporate Trust Department
Telephone: (404) 989-6381
Fax: (404) 989-6259
Notices in respect of tenders shall be delivered to the
Remarketing Agent as follows:
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Attention: Municipal Note Desk
Telephone: (212) 528-1011
Fax: (212) 528-2129
The delivery addresses or telephone numbers of the Trustee or the
Remarketing Agent may be changed by notice mailed by first class
mail to the Bondholders at their registered addresses.
All tendered Bonds must be accompanied by an instrument of
transfer satisfactory to the Trustee, executed in blank by the
registered owner or his duly authorized attorney, with the
signature guaranteed by an eligible guarantor institution.
Limitation on Tenders. No Bonds may be tendered while they
bear interest at a Commercial Paper Rate or a Long-Term Interest
Rate.
Irrevocable Notice Deemed to be Tender of Bond; Undelivered
Bonds. The giving of notice by the registered owner of a Bond as
provided in Section 6 constitutes the irrevocable tender for
purchase of each Bond (or portion) with respect to which such
notice was given, irrespective of whether such Bond was delivered
as provided in Section 6. The determination of the Trustee as to
whether a notice of tender has been properly delivered shall be
conclusive and binding upon the Bondholders.
The Trustee may refuse to accept delivery of any Bond for
which a proper instrument of transfer has not been provided. If
any owner of a Bond who gave notice fails to deliver his Bond to
the Trustee at the place and on the applicable date and time
specified, or fails to deliver his Bond properly endorsed, his
Bond shall constitute an undelivered Bond as described in the
Indenture. BY ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL
AND SURRENDER THIS BOND, PROPERLY ENDORSED, TO THE TRUSTEE AFTER
THE GIVING OF IRREVOCABLE NOTICE OF TENDER FOR PURCHASE AS
DESCRIBED ABOVE.
61<PAGE>
8. Redemptions. As provided below, the Company has the
right to purchase Bonds in lieu of certain redemptions. BY
ACCEPTANCE OF THIS BOND, THE OWNER AGREES TO SELL AND SURRENDER
THIS BOND, PROPERLY ENDORSED, TO THE COMPANY IN LIEU OF
REDEMPTION UNDER THE CONDITIONS DESCRIBED BELOW. All redemptions
and purchases in lieu of redemption will be made in funds
immediately available on the redemption or purchase date and will
be at a redemption or purchase price of 100% of the principal
amount of the Bonds being redeemed or purchased (unless a premium
is required as provided below) plus interest accrued to the
redemption or purchase date, except that interest accruing at a
Daily Rate will be paid on the fifth Business Day following the
redemption or purchase date. Bonds tendered for purchase on a
date after a call for redemption but before the redemption date
will be purchased pursuant to the tender. No purchase of Bonds
by the Company or advance use of any funds to effectuate any such
purchase shall be deemed to be a payment or redemption of the
Bonds or of any portion thereof and such purchase will not
operate to extinguish or discharge the indebtedness evidenced by
such Bonds.
Optional Redemption at a Premium During Long-Term Interest
Rate Period. During any Long-Term Interest Rate Period, if the
Long-Term Interest Rate Period is less than or equal to five
years, the Bonds will not be redeemable pursuant to this
provision during the Long-Term Interest Rate Period.
If the Long-Term Interest Rate Period is greater than five
years, the Bonds will not be redeemable for five years after the
date on which the Bonds begin to bear interest at the Long-Term
Interest Rate. After the five year no-call period, the Bonds may
be redeemed at any time in whole or in part at 102% of their
principal amount. The premium will decline every year on the
anniversary of the date on which the Bonds begin to bear interest
at the Long-Term Interest Rate, by one percentage point until the
Bonds are redeemable without premium.
As an alternative to and in lieu of the foregoing redemption
provisions, if, with respect to any Long-Term Interest Rate
Period, a Favorable Opinion of Tax Counsel is delivered to the
Trustee not later than the date of the establishment of such
Long-Term Interest Rate Period, the Bonds may be redeemed during
such Long-Term Interest Rate Period at the option of the Company
in whole or in part at any time after a no-call period, if any,
established by the Remarketing Agent, at the percentages of their
principal amount, plus accrued interest, as follows: the
Remarketing Agent shall, given the duration of the Long-Term
Interest Rate Period, determine and inform the Trustee and the
Company, on a date which is no later than the establishment of
the Long-Term Interest Rate, the periods during which the Bonds
shall not be subject to redemption (the "Call Protection
Period"), the redemption premium or premiums (the "Call
62<PAGE>
Premiums"), if any, applicable to the redemption of Bonds after
the Call Protection Period, and the period or periods during
which the Call Premiums shall be effective (the "Call Premium
Periods") necessary to establish the Long-Term Interest Rate.
Such Call Protection Period, Call Premiums and Call Premium
Periods shall be established in accordance with optional call
redemption provisions which, in the judgment of the Remarketing
Agent, are generally accepted as the standard features for
obligations such as the Bonds, given the length of the Long-Term
Interest Rate Period.
Extraordinary Optional 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
which results in the imposition of unreasonable burdens or
excessive liabilities with respect to the Project or the
Plant, 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 the 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 the
Plant as an efficient generating facility uneconomical; or
(iii) The Project or the 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 the
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.
Optional Redemption During Daily or Weekly Rate Period.
When interest on the Bonds is payable at a Daily or Weekly Rate,
the Bonds may be redeemed in whole or in part at the option of
the Company, on any Business Day.
Mandatory Redemption at Beginning of a New Long-Term
Interest Rate Period. When the Bonds bear interest at a Long-
Term Interest Rate and a new Long-Term Interest Rate is to be
determined, the Bonds will be redeemed or purchased by the
63<PAGE>
Company in lieu of redemption on the effective date of the new
Long-Term Interest Rate. In the case of a change prior to the
day originally established as the day after the last day of a
Long-Term Interest Rate Period, the Bonds will be redeemed or
purchased at the percentage of their principal amount which would
be payable upon the applicable redemption described under
"Optional Redemption at a Premium During Long-Term Interest Rate
Period" above.
Mandatory Redemption on Each Interest Payment Date During
Commercial Paper Mode. When Bonds bear interest at a Commercial
Paper Rate, each Bond will be redeemed or purchased by the
Company in lieu of redemption on the Interest Payment Date for
such Bond. If Bonds are scheduled to be redeemed under the
following paragraph, the Bonds will be called under, and
redemption will be governed by, that paragraph and not this
paragraph.
Mandatory Redemption Upon a Change in the Method of
Determining the Interest Rate on the Bonds. On the effective
date of the change in the method of determining the interest rate
on the Bonds (the four methods being Daily, Weekly, Commercial
Paper or Long-Term Interest Rates) the Bonds will be redeemed or
purchased by the Company in lieu of redemption on the effective
date of such change. Any such redemption or purchase shall be at
a price equal to 100% of the principal amount of the Bonds,
except that in the case of a change prior to the day originally
established as the day after the last day of a Long-Term Interest
Rate Period, the Bonds will be redeemed or purchased at the
percentage of their principal amount which would be payable upon
the applicable redemption described under "Optional Redemption at
a Premium During Long-Term Interest Rate Period" above.
Notice of Redemption. At least 30 days before each
redemption (except "Mandatory Redemption on Each Interest Payment
Date During Commercial Paper Mode" described above, for which no
notice will be given), the Trustee will mail a notice of
redemption by first-class mail to each Bondholder at the holder's
registered address. Failure to give any required notice of
redemption as to any particular Bonds, or any defect therein,
will not affect the validity of the call for redemption of any
Bonds in respect of which no failure or defect occurs. Any
notice mailed as provided in this paragraph shall be effective
when sent and will be conclusively presumed to have been given
whether or not actually received by the addressee.
Effect of Notice of Redemption. When notice of redemption
is required and given, and when Bonds are to be redeemed without
notice, Bonds called for redemption become due and payable on the
redemption date at the applicable redemption price, subject to
the Company's right to purchase Bonds as provided above; in such
case when funds are deposited with the Trustee sufficient for
64<PAGE>
redemption or for purchase, interest on the Bonds to be redeemed
or purchased ceases to accrue as of the date of redemption or
purchase.
9. Denominations; Transfer; Exchange. The Bonds may be
issued in registered form without coupons in denominations as
follows: (1) when interest is payable at a Daily, Weekly or
Commercial Paper Rate, $100,000 or any integral multiple thereof;
and (2) when interest is payable at a Long-Term Interest Rate,
$5,000 and integral multiples of $5,000 thereafter. A holder may
register the transfer of or exchange Bonds in accordance with the
Indenture. The Trustee may require a holder, among other things,
to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the
Indenture. Except in connection with the purchase of Bonds
tendered for purchase or purchased in lieu of redemption, the
Trustee will not be required to register the transfer of or
exchange any Bond which has been called for redemption or during
the period beginning 15 days before the mailing of notice calling
the Bonds or any portion of the Bonds for redemption and ending
on the redemption date.
10. Persons Deemed Owners. The registered holder of this
Bond shall be treated as the owner of it for all purposes.
11. Funds in Trust; Unclaimed Funds. All moneys which the
Trustee shall have withdrawn from the account of the Company 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.
12. Discharge Before Redemption or Maturity. If the
Company at any time deposits with the Trustee money or Government
Obligations as described in the Indenture sufficient to pay at
redemption or maturity principal of and interest on the
outstanding Bonds, and if the Company also pays all other sums
then payable by the Company under the Indenture, the lien of the
Indenture will be discharged. After discharge, Bondholders must
look only to the deposited money and securities for payment.
65<PAGE>
Government Obligations are securities backed by the faith and
credit of the United States or securities evidencing ownership
interest in such full-faith and credit securities.
13. Amendment, Supplement, Waiver. Subject to certain
exceptions, the Indenture, the Agreement or the Bonds may be
amended or supplemented, and any past default or compliance with
any provision may be waived, with the consent of the holders of a
majority in principal amount of the Bonds then outstanding. Any
such consent shall be irrevocable and shall bind any subsequent
owner of this Bond or any Bond delivered in substitution for this
Bond. Without the consent of any Bondholder, the Issuer may
amend or supplement the Indenture, the Agreement or the Bonds as
described in the Indenture, among other things, to cure any
ambiguity, omission, defect or inconsistency, to provide for
uncertificated Bonds in addition to or in place of certificated
Bonds, to provide for a Book-Entry System for the Bonds or to
make any change that does not materially adversely affect the
rights of any Bondholder.
14. Defaults and Remedies. The Indenture provides that the
occurrences of certain events constitute Events of Default. If
an Event of Default occurs and is continuing, the Bonds may
become or may be declared immediately due and payable, as
provided in the Indenture. An Event of Default and its
consequences may be waived as provided in the Indenture.
Bondholders may not enforce the Indenture or the Bonds except as
provided in the Indenture. Except as specifically provided in
the Indenture, the Trustee may refuse to enforce the Indenture or
the Bonds unless it receives indemnity satisfactory to it.
Subject to certain limitations, holders of a majority in
principal amount of the Bonds then outstanding may direct the
Trustee in its exercise of any trust or power.
15. No Recourse Against Others. A member, director,
officer or employee, as such, of the Issuer shall not have any
liability for any obligations of the Issuer or the Company under
the Bonds or the Indenture or for any claim based on such
obligations or their creation. Each Bondholder by accepting a
Bond waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Bond.
16. Authentication. This Bond shall not be valid or become
obligatory for any purpose or be entitled to any security or
benefit under the Indenture until the certificate of
authentication hereon shall have been duly executed by the
Trustee.
17. Abbreviations. Customary abbreviations may be used in
the name of a Bondholder or an assignee, such as TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN
(= joint tenants with right of survivorship and not as tenants in
66<PAGE>
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
A copy of the Indenture may be inspected at the corporate
trust office of the Trustee located at 3350 Cumberland Circle,
Suite 10-681, Atlanta, Georgia 30339.
67<PAGE>
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts,
conditions and things required to exist, happen and be performed
precedent to and in the execution and delivery of the Indenture
and the issuance of this Bond do exist, have happened and have
been performed in due time, form and manner as required by law.
IN WITNESS WHEREOF the Development Authority of Monroe
County has caused this Bond to be executed in its name by its
Chairman or Vice Chairman by his manual or facsimile signature
and attested by the manual or facsimile signature of its
Secretary or Assistant Secretary and its corporate seal to be
hereunto affixed or printed hereon.
DEVELOPMENT AUTHORITY OF MONROE
COUNTY
By:
Chairman
Attest:
Secretary
68<PAGE>
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.
BANK SOUTH
as Trustee
Date: July 13, 1995 By:
Authorized Signature
STATE OF GEORGIA
COUNTY OF MONROE
The undersigned, Clerk of the Superior Court of Monroe
County, Georgia, hereby certifies that the within Second Series
1995 Bond was validated and confirmed by judgment of the Superior
Court of Monroe County, Georgia rendered on the 19th day of
September, 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
69<PAGE>
The following abbreviations, when used in the inscription on the
face of the within Bond, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM- as tenants UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used though not in list
above.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers
unto ____________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________
________________________________________________________________
(Name and Address of Assignee)
_________________________________________________________________
the within Bond and does hereby irrevocably constitute and
appoint ______________________ attorney to transfer the said Bond
on the books kept for registration thereof with full power of
substitution in the premises.
Dated:_____________________________
Signature guaranteed:
______________________________ ______________________________
NOTICE: The signature to this
Medallion Number:_____________ assignment must correspond
*Signature(s) must be with the name of the
guaranteed by an eligible registered owner as it appears
guarantor institution which is upon the face of the within
a member of a recognized Bond in every particular,
signature guarantee program, without alteration or
i.e. Securities Transfer enlargement or any change
Agents Medallion Program whatever.
(STAMP), or New York Stock
Exchange Medallion Signature
Program (MSP).
70<PAGE>
EXHIBIT E
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 July 1, 1995
Providing among other things for
FIRST MORTGAGE BONDS
First Pollution Control Series due July 1, 2025
Second Pollution Control Series due July 1, 2025
<PAGE>
SUPPLEMENTAL INDENTURE, dated as of July 1, 1995, 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:<PAGE>
"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 two series of bonds under the
Indenture to be designated, respectively, as "First Pollution
Control Series due July 1, 2025" (hereinafter sometimes referred
to as the "new First Series Bonds") and "Second Pollution Control
Series due July 1, 2025" (hereinafter sometimes referred to as
the "new Second Series Bonds") (the new First Series Bonds and
the new Second Series Bonds being hereinafter sometimes referred
to collectively as the "new Bonds"), each of which bonds shall
also bear the descriptive title "First Mortgage Bond", the bonds
of each such series to bear interest as herein provided 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 of each series is to be
substantially in the following form, with appropriate insertions
and deletions, to wit:
-2-<PAGE>
[FORM OF NEW BOND OF EACH SERIES]
GEORGIA POWER COMPANY
FIRST MORTGAGE BOND, _____ POLLUTION CONTROL SERIES
DUE JULY 1, 2025
No. $
Georgia Power Company, a Georgia corporation (hereinafter
called the "Company"), for value received, hereby promises to pay
to Bank South, Atlanta, Georgia (as trustee under a Trust
Indenture dated as of July 1, 1995 of the Development Authority
of Monroe County, relating to the Revenue Bonds (hereinafter
mentioned)), or registered assigns, the principal sum of
_____________________ Dollars on July 1, 2025, and to pay to the
registered owner hereof interest on said sum from the latest
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 the first interest payment date, in which case
from July 13, 1995, at the same rates, until the principal hereof
shall have become due and payable, payable on the same dates, as
the Revenue Bonds pursuant to the Revenue Indenture (hereinafter
mentioned).
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 July 13, 1995 issued
pursuant to Section 3.2 of the Loan Agreement dated as of July 1,
1995 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), _____ Series 1995
(hereinafter referred to as "Revenue Bonds") or there shall be on
deposit with the trustee pursuant to the Trust Indenture dated as
of July 1, 1995 of the Development Authority of Monroe County to
Bank South, Atlanta, Georgia, as trustee, relating to the Revenue
Bonds (hereinafter referred to as the "Revenue Indenture"),
sufficient available funds to pay fully or partially the then due
-3-<PAGE>
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
-4-<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 optional
redemption provisions of the Revenue Bonds and 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 pursuant to such optional redemption
provisions 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 the redemption
premium (if any) payable upon such redemption of Revenue Bonds.
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
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
-5-<PAGE>
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:
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
-6-<PAGE>
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 $45,000,000 principal amount of new First
Series Bonds and $40,000,000 principal amount of new Second
Series 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, 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
-7-<PAGE>
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
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,
-8-<PAGE>
agreements, trusts and uses and purposes expressed in the
Indenture and herein, and it is hereby agreed as follows:
SECTION 1. There are hereby created two 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 of each such series shall mature on the date specified in
the title thereof, and the definitive bonds of each such series
may be issued only as registered bonds without coupons. New
Bonds of each such series 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 of each such
series 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 same rates, payable on
the same dates, as (i) the First Series Monroe Bonds pursuant to
the First Series Monroe Indenture (each as hereinafter defined)
in the case of the new First Series Bonds and (ii) the Second
Series Monroe Bonds pursuant to the Second Series Monroe
Indenture (each as hereinafter defined) in the case of the new
Second Series Bonds. New Bonds of each such series shall be
dated the date of authentication.
The principal of and premium, if any, and interest on the
new Bonds of each such series 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 of each such series may be transferred at the
principal corporate trust office of the Trustee, in the Borough
of Manhattan, The City of New York. New Bonds of each such
series 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 of new Bonds of either of
said series other than for any tax or taxes or other governmental
charge required to be paid by the Company.
-9-<PAGE>
Any or all of the new Bonds of each such series 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 First Series 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 July 13, 1995 issued pursuant to Section 3.2 of the
Loan Agreement dated as of July 1, 1995 between the Development
Authority of Monroe County and the Company, relating to the First
Series 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 1995 (hereinafter referred
to as the "First Series Monroe Bonds") or there shall be on
deposit with the trustee pursuant to the Trust Indenture dated as
of July 1, 1995 of the Development Authority of Monroe County to
Bank South, Atlanta, Georgia, as trustee, relating to the First
Series Monroe Bonds (hereinafter referred to as the "First Series
Monroe Indenture"), sufficient available funds to pay fully or
partially the then due principal of and premium, if any, and
interest on the First Series 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 First Series Bonds shall have been fully
satisfied and discharged unless and until the Trustee shall have
received a written notice from the trustee under the First Series
Monroe Indenture stating (i) that timely payment of principal of
or premium, if any, or interest on the First Series Monroe Bonds
has not been made, (ii) that there are not sufficient available
funds to make such payment and (iii) the amount of funds required
to make such payment.
In addition to the redemption as provided in Section 1
hereof, the new First Series Bonds shall also be redeemable in
whole upon receipt by the Trustee of a written demand for the
-10-<PAGE>
redemption of the new First Series Bonds (hereinafter called
"First Series Redemption Demand") from the trustee under the
First Series Monroe Indenture stating that the principal amount
of all the First Series Monroe Bonds then outstanding under the
First Series Monroe Indenture has been declared immediately due
and payable pursuant to the provisions of Section 8.02 of the
First Series Monroe Indenture, specifying the date from which
unpaid interest on the First Series 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
First Series 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 "First Series Demand
Redemption") and shall mail to the Trustee notice of such date at
least 30 days prior thereto. The date fixed for First Series
Demand Redemption may be any day not more than 180 days after
receipt by the Trustee of the First Series Redemption Demand. If
the Trustee does not receive such notice from the Company within
150 days after receipt by the Trustee of the First Series
Redemption Demand, the date for First Series Demand Redemption
shall be deemed fixed at the 180th day after such receipt. The
Trustee shall mail notice of the date fixed for First Series
Demand Redemption (hereinafter called the "First Series Demand
Redemption Notice") to the trustee under the First Series Monroe
Indenture (and the registered holders of the new First Series
Bonds if other than said trustee) not more than 10 nor less than
5 days prior to the date fixed for First Series Demand
Redemption, provided, however, that the Trustee shall mail no
First Series Demand Redemption Notice (and no First Series Demand
Redemption shall be made) if prior to the mailing of the First
Series Demand Redemption Notice the Trustee shall have received
written notice of rescission of the First Series Redemption
Demand from the trustee under the First Series Monroe Indenture.
First Series Demand Redemption of the new First Series 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 First Series
Demand Redemption as above provided. Anything in this paragraph
contained to the contrary notwithstanding, if, after mailing of
the First Series Demand Redemption Notice and prior to the date
fixed for First Series Demand Redemption, the Trustee shall have
been advised in writing by the trustee under the First Series
Monroe Indenture that the First Series Redemption Demand has been
rescinded, the First Series 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 First Series Bonds and no payments in
-11-<PAGE>
respect thereof as specified in the First Series Demand
Redemption Notice shall be effected or required.
The new First Series Bonds shall also be redeemable in whole
at any time, or in part from time to time (hereinafter called the
"First Series Regular Redemption"), upon receipt by the Trustee
of a written demand (hereinafter referred to as the "First Series
Regular Redemption Demand") from the trustee under the First
Series Monroe Indenture stating: (1) the principal amount of
First Series Monroe Bonds to be redeemed pursuant to the optional
redemption provisions of the First Series Monroe Bonds and the
First Series Monroe Indenture; (2) the date of such redemption
and that notice thereof has been given as required by the First
Series Monroe Indenture; (3) that the Trustee shall call for
redemption on the stated date fixed for redemption of the First
Series Monroe Bonds a principal amount of the new First Series
Bonds equal to the principal amount of First Series Monroe Bonds
to be redeemed; and (4) that the trustee under the First Series
Monroe Indenture, as holder of all the new First Series Bonds
then outstanding, waives notice of such redemption. The Trustee
may conclusively presume the statements contained in the First
Series Regular Redemption Demand to be correct. First Series
Regular Redemption of the new First Series Bonds shall be at the
principal amount thereof and accrued interest thereon to the date
fixed for redemption, together with a premium equal to the
redemption premium (if any) payable upon such redemption of the
First Series Monroe Bonds, and such amount shall become and be
due and, subject to the first paragraph of this Section 2,
payable on the date fixed for such First Series Regular
Redemption, which shall be the date specified pursuant to item
(2) of the First Series Regular Redemption Demand as above
provided.
SECTION 3. The obligation of the Company to make payments
with respect to the principal of and premium, if any, and
interest on the new Second Series 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 July 13, 1995 issued pursuant to Section 3.2 of the
Loan Agreement dated as of July 1, 1995 between the Development
Authority of Monroe County and the Company, relating to the
Second Series 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), Second Series 1995 (hereinafter referred
to as the "Second Series Monroe Bonds") or there shall be on
deposit with the trustee pursuant to the Trust Indenture dated as
-12-<PAGE>
of July 1, 1995 of the Development Authority of Monroe County to
Bank South, Atlanta, Georgia, as trustee, relating to the Second
Series Monroe Bonds (hereinafter referred to as the "Second
Series Monroe Indenture"), sufficient available funds to pay
fully or partially the then due principal of and premium, if any,
and interest on the Second Series 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 Second Series Bonds shall have been fully
satisfied and discharged unless and until the Trustee shall have
received a written notice from the trustee under the Second
Series Monroe Indenture stating (i) that timely payment of
principal of or premium, if any, or interest on the Second Series
Monroe Bonds has not been made, (ii) that there are not
sufficient available funds to make such payment and (iii) the
amount of funds required to make such payment.
In addition to the redemption as provided in Section 1
hereof, the new Second Series Bonds shall also be redeemable in
whole upon receipt by the Trustee of a written demand for the
redemption of the new Second Series Bonds (hereinafter called
"Second Series Redemption Demand") from the trustee under the
Second Series Monroe Indenture stating that the principal amount
of all the Second Series Monroe Bonds then outstanding under the
Second Series Monroe Indenture has been declared immediately due
and payable pursuant to the provisions of Section 8.02 of the
Second Series Monroe Indenture, specifying the date from which
unpaid interest on the Second Series 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 Second Series 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 "Second Series
Demand Redemption") and shall mail to the Trustee notice of such
date at least 30 days prior thereto. The date fixed for Second
Series Demand Redemption may be any day not more than 180 days
after receipt by the Trustee of the Second Series Redemption
Demand. If the Trustee does not receive such notice from the
Company within 150 days after receipt by the Trustee of the
Second Series Redemption Demand, the date for Second Series
Demand Redemption shall be deemed fixed at the 180th day after
such receipt. The Trustee shall mail notice of the date fixed
for Second Series Demand Redemption (hereinafter called the
"Second Series Demand Redemption Notice") to the trustee under
the Second Series Monroe Indenture (and the registered holders of
the new Second Series Bonds if other than said trustee) not more
than 10 nor less than 5 days prior to the date fixed for Second
Series Demand Redemption, provided, however, that the Trustee
-13-<PAGE>
shall mail no Second Series Demand Redemption Notice (and no
Second Series Demand Redemption shall be made) if prior to the
mailing of the Second Series Demand Redemption Notice the Trustee
shall have received written notice of rescission of the Second
Series Redemption Demand from the trustee under the Second Series
Monroe Indenture. Second Series Demand Redemption of the new
Second Series 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 Second Series Demand Redemption as above provided.
Anything in this paragraph contained to the contrary
notwithstanding, if, after mailing of the Second Series Demand
Redemption Notice and prior to the date fixed for Second Series
Demand Redemption, the Trustee shall have been advised in writing
by the trustee under the Second Series Monroe Indenture that the
Second Series Redemption Demand has been rescinded, the Second
Series 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
Second Series Bonds and no payments in respect thereof as
specified in the Second Series Demand Redemption Notice shall be
effected or required.
The new Second Series Bonds shall also be redeemable in
whole at any time, or in part from time to time (hereinafter
called the "Second Series Regular Redemption"), upon receipt by
the Trustee of a written demand (hereinafter referred to as the
"Second Series Regular Redemption Demand") from the trustee under
the Second Series Monroe Indenture stating: (1) the principal
amount of Second Series Monroe Bonds to be redeemed pursuant to
the optional redemption provisions of the Second Series Monroe
Bonds and the Second Series Monroe Indenture; (2) the date of
such redemption and that notice thereof has been given as
required by the Second Series Monroe Indenture; (3) that the
Trustee shall call for redemption on the stated date fixed for
redemption of the Second Series Monroe Bonds a principal amount
of the new Second Series Bonds equal to the principal amount of
Second Series Monroe Bonds to be redeemed; and (4) that the
trustee under the Second Series Monroe Indenture, as holder of
all the new Second Series Bonds then outstanding, waives notice
of such redemption. The Trustee may conclusively presume the
statements contained in the Second Series Regular Redemption
Demand to be correct. Second Series Regular Redemption of the
new Second Series Bonds shall be at the principal amount thereof
and accrued interest thereon to the date fixed for redemption,
together with a premium equal to the redemption premium (if any)
payable upon such redemption of the Second Series Monroe Bonds,
and such amount shall become and be due and, subject to the first
paragraph of this Section 3, payable on the date fixed for such
-14-<PAGE>
Second Series Regular Redemption, which shall be the date
specified pursuant to item (2) of the Second Series Regular
Redemption Demand as above provided.
SECTION 4. 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
of any series shall be outstanding under the Indenture.
SECTION 5. 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 6. 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 7. 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 8. This Supplemental Indenture may be executed in
several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the
same instrument.
SECTION 9. 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.
-15-<PAGE>
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: /s/Judy M. Anderson
Vice President
Attest:
/s/Cherry C. Hudgins
Assistant Corporate Secretary
Signed, sealed and delivered this
6th day of July, 1995 by Georgia
Power Company in the County of
Fulton, State of Georgia, in the
presence of
/s/Angie K. Page
Unofficial Witness
/s/Jane F. Genske
Notary Public, Walton County, Georgia
My Commission Expires August 2, 1996
(signatures continued on next page)<PAGE>
CHEMICAL BANK
By: /s/R. Lorenzen
Senior Trust Officer
Attest:
/s/L. O'Brien
Senior Trust Officer
Signed, sealed and delivered
this 7th day of July, 1995
by Chemical Bank in the County
of New York, State of New York,
in the presence of
/s/K. Salmini
Unofficial Witness
/s/EMILY FAYAN
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New York County
Commission Expires December 31, 1995<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 6th day of July, 1995, personally appeared before me
Jane F. Genske, a Notary Public in and for the State and County
aforesaid, Angie K. Page, 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 Cherry C. Hudgins, Assistant
Corporate Secretary, known to her to be such officers of said
corporation respectively, attest the same, and that she,
deponent, with Jane F. Genske, 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 6th day of )
July, 1995 ) /s/Angie K. Page
/s/Jane F. Genske
Notary Public, Walton County, Georgia
My Commission Expires August 2, 1996<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 7th day of July, 1995, personally appeared before me
Emily Fayan, a Notary Public in and for the State and County
aforesaid, K. Salmini, who made oath and said that he was present
and saw the corporate seal of Chemical Bank affixed to the above
written instrument, that he saw R. Lorenzen, Senior Trust
Officer, with L. O'Brien, Senior Trust Officer, known to him to
be such officers of said corporation respectively, attest the
same, and that he, deponent, with Emily Fayan, 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 7th day of )
July, 1995 ) /s/K. Salmini
/s/EMILY FAYAN
Notary Public, State of New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New York County
Commission Expires December 31, 1995<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 6th day of July, in the year one thousand nine
hundred and ninety-five, 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.
/s/Jane F. Genske
Notary Public, Walton
County, Georgia
My Commission Expires
August 2, 1996<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 7th day of July, in the year one thousand nine
hundred and ninety-five, before me personally came R. Lorenzen,
to me known, who, being by me duly sworn, did depose and say that
he resides at 27 White Street, Valley Stream, New York; that he
is a Senior Trust Officer 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.
/s/EMILY FAYAN
Notary Public, State of
New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New
York County
Commission Expires
December 31, 1995<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF FULTON )
On the 6th day of July, 1995, 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 6th day of July, 1995.
/s/Jane F. Genske
Notary Public, Walton
County, Georgia
My Commission Expires
August 2, 1996<PAGE>
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the 7th day of July, 1995, before me appeared R.
Lorenzen, to me personally known, who, being by me duly sworn,
did say that he is a Senior Trust Officer 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 R. Lorenzen acknowledged said instrument
to be the free act and deed of said corporation.
Given under my hand this 7th day of July, 1995.
/s/EMILY FAYAN
Notary Public, State of
New York
No. 24-4737006
Qualified in Kings County
Certificate filed in New
York County
Commission Expires
December 31, 1995<PAGE>
EXHIBIT F
TROUTMAN SANDERS LLP
600 PEACHTREE STREET, NE, SUITE 5200
ATLANTA, GEORGIA 30308-2216
(404) 885-3000
July 21, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Re: Statement on Form U-1 of
Georgia Power Company
(herein called the "Company")
File No. 70-8443
Ladies and Gentlemen:
We have read the statement on Form U-1, as amended, referred to above
and are furnishing this opinion in connection with the issuance and sale by the
Development Authority of Monroe County (Georgia) of $85,000,000 aggregate
principal amount of its Pollution Control Revenue Bonds (Georgia Power Company
Plant Scherer Project), consisting of $45,000,000 principal amount of First
Series 1995 and $40,000,000 principal amount of Second Series 1995
(collectively, the "Revenue Bonds"), and the related issuance by the Company of
$85,000,000 aggregate principal amount of its First Mortgage Bonds, consisting
of $45,000,000 principal amount of First Pollution Control Series due July 1,
2025 and $40,000,000 principal amount of Second Pollution Control Series due
July 1, 2025 (collectively, the "Collateral Bonds"), and two promissory notes
each dated July 13, 1995 (the "Notes"), in the same principal amounts as the
respective series of Revenue Bonds, to secure and evidence the payment
obligations of the Company with respect to such respective series of Revenue
Bonds.
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 by the Company
have been complied with;
<PAGE>
Securities and Exchange Commission
July 21, 1995
Page 2
(c) the Collateral Bonds and the Notes are valid and binding
obligations of the Company in accordance with their
respective terms; and
(d) the consummation of such transactions by the Company 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 LLP
