Exhibit 4.5
TRUST AGREEMENT
THIS TRUST AGREEMENT is made as of January 30, 1997, by and between
Southern Company Capital Funding, Inc., a Delaware corporation, as Depositor
(the "Depositor"), and Bankers Trust (Delaware), duly organized and existing in
the State of Delaware, as Trustee (the "Trustee"). The Depositor and the Trustee
hereby agree as follows:
1. The trust created hereby shall be known as "Southern Company Capital
Trust II", 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.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. 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 created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The Trustee
is hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State substantially in the form attached hereto
or in such other form as the Trustee may approve.
3. The Depositor and the Trustee and certain other parties will enter
into an amended and restated Trust Agreement satisfactory to each such party and
having substantially the terms described in the Offering Memorandum (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Capital 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 of 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.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to prepare and distribute one or
more offering memoranda on behalf of the Trust, including any necessary or
desirable supplements or amendments thereto (the "Offering Memorandum"),
relating to the Capital Securities and Common Securities of the Trust and
certain other securities; (ii) 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 Capital Securities under, or to obtain
for the Capital Securities an exemption from, the securities or "Blue Sky" laws
of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable; (iii) to execute, deliver and perform on behalf of the
Trust an underwriting or purchase agreement with the Depositor and the
underwriter or underwriters or purchaser or purchasers of the Capital Securities
of the Trust and (iv) to execute on behalf of the Trust any and all documents,
papers and instruments as may be desirable in connection with any of the
foregoing. The Trustee further hereby ratifies and approves all actions having
previously been taken with respect to the foregoing. In the event that any
filing or distribution referred to in clause (i) or (ii) above is required by
the rules and regulations of any applicable governmental agency, self-regulatory
organization or other person or organization to be executed on behalf of the
Trust by the Trustee, Bankers Trust (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 Bankers Trust (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 such rules and regulations.
5. This Trust Agreement may be executed in one or more counterparts.
6. 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
Business 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.
7. This Trust Agreement shall be construed in accordance with and governed
by the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
SOUTHERN COMPANY CAPITAL FUNDING, INC.,
as Depositor
By:
Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
BANKERS TRUST (DELAWARE),
as Trustee
By:
Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
