Exhibit 4.9-B
AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDED AND RESTATED TRUST AGREEMENT is made as of November 3,
2006, by and among Southern Company Capital Funding, Inc., a Delaware
corporation, as original Depositor ("Capital Funding"), The Southern Company, a
Delaware corporation, as Depositor (the "Depositor"), and The Bank of New York
(Delaware), duly organized and existing in the State of Delaware, as successor
Trustee (the "Trustee"), and amends and restates that certain Trust Agreement,
dated as of June 16, 1999, between Capital Funding and the original trustee (the
"Original Trust Agreement"). Capital Funding, the Depositor and the Trustee
hereby agree as follows:
1. Capital Funding, in its capacity of original Depositor, hereby
transfers and assigns to Depositor all of Capital Funding's right, title and
interest in and to Southern Company Capital Trust VIII (as defined below).
2. The trust continued hereby shall be known as "Southern Company
Capital Trust VIII", in which name the Trustee, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
3. The Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial trust property. The Trustee hereby declares that it will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust continued hereby constitute a statutory trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq.
(the "Statutory Trust Act"), and that this document constitute the governing
instrument of the Trust.
4. The Depositor and the Trustee will enter into another amended and
restated Trust Agreement satisfactory to each such party and substantially in
the form included as an exhibit to the Registration Statement on Form S-3 (the
"1933 Act Registration Statement") referred to below, or in such other form as
the Trustee and the Depositor may approve, to provide for the contemplated
operation of the Trust created hereby and the issuance of the Preferred
Securities and Common Securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. However, notwithstanding the foregoing,
the Trustee may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
5. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in the case of the 1933 Act
Registration Statement and 1934 Act Registration Statement (as herein defined),
on behalf of the Trust, (a) the 1933 Act Registration Statement including
pre-effective or post-effective amendments to such Registration Statement,
relating to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Preferred Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Preferred
Securities required to be filed pursuant to Rule 424 under the 1933 Act, and (c)
a Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the New York Stock
Exchange; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust, may
deem necessary or desirable; and (iv) to execute, deliver and perform on behalf
of the Trust an underwriting agreement with the Depositor and the underwriter or
underwriters of the Preferred Securities of the Trust. The Trustee further
hereby ratifies and approves all actions having previously been taken with
respect to the foregoing. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or Blue Sky laws to be executed on
behalf of the Trust by the Trustee, The Bank of New York (Delaware), in its
capacity as Trustee of the Trust, is hereby authorized and directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that The Bank of New York (Delaware) in its
capacity as Trustee of the Trust shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the New York Stock Exchange or
state securities or Blue Sky laws.
6. This Amended and Restated Trust Agreement may be executed in one or
more counterparts.
7. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Statutory Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware. Subject to the
foregoing the Depositor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days' prior notice to
the Depositor.
8. This Amended and Restated Trust Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware
without regard to its conflicts of law principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed as of the day and year first above
written.
SOUTHERN COMPANY CAPITAL FUNDING, INC.,
as original Depositor
By: /s/Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary
THE SOUTHERN COMPANY,
as Depositor
By: /s/Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Trustee
By: /s/Xxxxxxxx Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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