EXHIBIT 4.2
SOUTHERN COMPANY CAPITAL FUNDING, INC.
AND
THE SOUTHERN COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE.
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 1, 2002
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$400,000,000
SERIES A 5.30% SENIOR NOTES
DUE FEBRUARY 1, 2007
TABLE OF CONTENTS1
ARTICLE 1.....................................................................1
SECTION 101. Establishment..............................................1
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SECTION 102. Definitions................................................2
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SECTION 103. Payment of Principal and Interest..........................2
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SECTION 104. Denominations..............................................3
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SECTION 105. Global Securities..........................................3
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SECTION 106. Transfer...................................................4
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ARTICLE 2.....................................................................4
SECTION 201. Recitals by Company........................................4
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SECTION 202. Ratification and Incorporation of Original Indenture.......4
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SECTION 203. Executed in Counterparts...................................4
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1 This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
FIRST SUPPLEMENTAL INDENTURE is made as of the 1st day of
February, 2002, by and among SOUTHERN COMPANY CAPITAL FUNDING, INC., a Delaware
corporation, 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 (the
"Company"), THE SOUTHERN COMPANY, a Delaware corporation, 000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxx, Xxxxxxx 00000 (the "Guarantor"), and The Bank of New York, a New
York banking corporation, 000 Xxxxxxx Xxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and the Guarantor have heretofore entered
into a Senior Note Indenture, dated as of February 1, 2002 (the "Original
Indenture"), with The Bank of New York;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as supplemented by this First Supplemental
Indenture, is herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Senior Notes may at
any time be established by the Board of Directors of the Company in accordance
with the provisions of the Original Indenture and the terms of such series may
be described by a supplemental indenture executed by the Company, the Guarantor
and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of
Senior Notes;
WHEREAS, additional Senior Notes of other series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Indenture as at
the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this First Supplemental Indenture and to make it a valid and binding
obligation of each of the Company and the Guarantor have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Series A Senior Notes
SECTION 101. Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
Series A 5.30% Senior Notes due February 1, 2007 (the "Series A Notes").
There are to be authenticated and delivered $400,000,000 principal
amount of Series A Notes, and such principal amount of the Series A Notes may be
increased from time to time pursuant to Section 301 of the Indenture. All Series
A Notes need not be issued at the same time and such series may be reopened at
any time, without the consent of any Holder, for issuances of additional Series
A Notes. Any such additional Series A Notes will have the same interest rate,
maturity and other terms as those initially issued. No Series A Notes shall be
authenticated and delivered in excess of the principal amount as so increased
except as provided by Sections 203, 303, 304 or 907 of the Original Indenture.
The Series A Notes shall be issued in definitive fully registered form.
The Series A Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Series A Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
A Notes shall be in substantially the form set forth in Exhibit B hereto. A
notation of the Notes Guaranty shall be set forth on each Series A Note in
substantially the form in Section 1304 of the Original Indenture.
Each Series A Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
The Series A Notes will not be redeemable at the option of the Company
prior to the Stated Maturity and will not have a sinking fund.
SECTION 102. Definitions. The following defined terms used herein
shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means February 1 and August 1 of each year,
commencing August 1, 2002.
"Original Issue Date" means February 1, 2002.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Stated Maturity" means February 1, 2007.
SECTION 103. Payment of Principal and Interest. The principal of the
Series A Notes shall be due at Stated Maturity. The unpaid principal amount of
the Series A Notes shall bear interest at the rate of 5.30% per annum until paid
or duly provided for. Interest shall be paid semiannually in arrears on each
Interest Payment Date to the Person in whose name the Series A Notes are
registered on the Regular Record Date for such Interest Payment Date, provided
that interest payable at the Stated Maturity of principal as provided herein
will be paid to the Person to whom principal is payable. Any such interest that
is not so punctually paid or duly provided for will forthwith cease to be
payable to the Holders on such Regular Record Date and may either be paid to the
Person or Persons in whose name the Series A Notes are registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee ("Special Record Date"), notice whereof shall be
given to Holders of the Series A Notes not less than ten (10) days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Series A Notes shall be listed, and upon such notice as may be required by
any such exchange, all as more fully provided in the Original Indenture.
Payments of interest on the Series A Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series A Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date the
payment was originally payable.
Payment of the principal and interest due at the Stated Maturity of the
Series A Notes shall be made upon surrender of the Series A Notes at the
Corporate Trust Office of the Trustee. The principal of and interest on the
Series A Notes shall be paid in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payments of interest (including interest on any Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least sixteen (16) days prior
to the date for payment by the Person entitled thereto.
SECTION 104. Denominations. The Series A Notes may be issued in
the denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series A Notes will be issued in
the form of one or more Global Securities registered in the name of the
Depositary or its nominee. Except under the limited circumstances described
below, Series A Notes represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Series A Notes in
definitive form. The Global Securities described above may not be transferred
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series A Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series A Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed by the Company, or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when the Depositary is required to be so registered to act as
such Depositary and no successor Depositary shall have been appointed by the
Company, in each case within 90 days after the Company receives such notice or
becomes aware of such cessation, (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable, or (iii) there
shall have occurred an Event of Default with respect to the Series A Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series A Notes registered in such names as the Depositary shall
direct.
SECTION 106. Transfer. No service charge will be made for any transfer
or exchange of Series A Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this First
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series A Notes and of this First Supplemental Indenture
as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture as supplemented by this First Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 203. Executed in Counterparts. This First Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
SOUTHERN COMPANY
CAPITAL FUNDING, INC.
ATTEST:
By:____________________________ By:_____________________________
Xxxxxxx X. Childs Xxxxx X. Xxxxxxxx
Assistant Secretary President and Chief Executive Officer
ATTEST: THE SOUTHERN COMPANY
By:____________________________ By:_____________________________
Xxxxx Xxxxxxxx Xxxx X. Xxxxxx
Secretary and Assistant Treasurer Executive Vice President, Chief
Financial Officer and Treasurer
ATTEST: THE BANK OF NEW YORK,
as Trustee
By:____________________________ By:_____________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
EXHIBIT A
FORM OF SERIES A NOTE
XX. 0 XXXXX XX. 000000XX0
SOUTHERN COMPANY CAPITAL FUNDING, INC.
SERIES A 5.30% SENIOR NOTE
DUE FEBRUARY 1, 2007
Principal Amount: $__________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: February 1, 2002
Stated Maturity: February 1, 2007
Interest Payment Dates: February 1 and August 1
Interest Rate: 5.30% per annum
Authorized Denomination: $1,000
Southern Company Capital Funding, Inc., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to _____________________________________, or registered assigns, the principal
sum of ________________________________ DOLLARS ($__________) on the Stated
Maturity shown above, and to pay interest thereon from the Original Issue Date
shown above, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually in arrears on each Interest Payment
Date as specified above, commencing on the Interest Payment Date next succeeding
the Original Issue Date shown above and on the Stated Maturity at the rate per
annum shown above until the principal hereof is paid or made available for
payment and on any overdue principal and on any overdue installment of interest.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date (other than an Interest Payment Date that is the Stated
Maturity) will, as provided in such Indenture, be paid to the Person in whose
name this Note (the "Note") is registered at the close of business on the
Regular Record Date as specified above next preceding such Interest Payment
Date, provided that any interest payable at the Stated Maturity will be paid to
the Person to whom principal is payable. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note is registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Holders of Notes of
this series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange, if any, on which the Notes of this series shall be
listed, and upon such notice as may be required by any such exchange, all as
more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), with the same force and effect
as if made on the date the payment was originally payable. A "Business Day"
shall mean any day other than a Saturday or a Sunday or a day on which banking
institutions in New York City are authorized or required by law or executive
order to remain closed or a day on which the Corporate Trust Office of the
Trustee is closed for business.
Payment of the principal of and interest due at the Stated Maturity of
the Series A Notes shall be made upon surrender of the Series A Notes at the
Corporate Trust Office of the Trustee. The principal of and interest on the
Series A Notes shall be paid in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
or other electronic transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least 16 days prior to the date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ___________________
SOUTHERN COMPANY CAPITAL
FUNDING, INC.
By:
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Vice President
Attest:
Assistant Secretary
{Seal of SOUTHERN COMPANY CAPITAL FUNDING, INC. appears here}
NOTES GUARANTEE
FOR VALUE RECEIVED, THE SOUTHERN COMPANY, a corporation duly organized
and existing under the laws of the State of Delaware (the "Guarantor", which
term includes any successor Person under the Indenture referred to in the Senior
Notes upon which this notation of the Notes Guarantee is endorsed) hereby
irrevocably and unconditionally guarantees to the Holder of this Senior Note
issued by Southern Company Capital Funding, Inc. (the "Company"), pursuant to
the terms of the Notes Guarantee contained in Article XIII of the Indenture, the
due and punctual payment of the principal of and premium, if any, and interest
on this Senior Note, when and as the same shall become due and payable, whether
at the Stated Maturity, by declaration of acceleration or otherwise, in
accordance with the terms of this Senior Note and the Indenture.
The obligations of the Guarantor to the Holders of the Senior Notes and
to the Trustee pursuant to the Notes Guarantee and the Indenture are expressly
set forth in Article XIII of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Notes Guarantee.
This Notes Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
The Notes Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Senior Note upon which this
notation of the Notes Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
officers.
(SEAL) THE SOUTHERN COMPANY
Attest:
By:
-------------------------------------------------
Name:
Title
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
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Authorized Signatory
(Reverse Side of Note)
This Note is one of a duly authorized issue of Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of February 1, 2002, as supplemented (the "Indenture"),
among the Company, the Guarantor and The Bank of New York, Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures incidental thereto reference is hereby made
for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the Holders
of the Notes issued thereunder and of the terms upon which said Notes are, and
are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof as Series A 5.30% Senior Notes due February 1,
2007 (the "Series A Notes") which is unlimited in aggregate principal amount.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Indenture.
The Series A Notes will not be redeemable by the Company in whole or in
part at any time prior to the Stated Maturity. The Series A Notes will not have
a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Notes at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Notes of each series at the
time Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Guarantor, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same upon surrender of the Note or Notes to be exchanged
at the office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in 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 on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular without alteration or
enlargement, or any change whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------------
Authorized Signatory
