Exhibit 4.2
THE SOUTHERN
COMPANY
TO
WELLS FARGO BANK, NATIONAL
ASSOCIATION, TRUSTEE.
THIRD SUPPLEMENTAL
INDENTURE
DATED AS OF AUGUST 21,
2008
SERIES 2008A FLOATING RATE SENIOR
NOTES
DUE AUGUST 20, 2010
TABLE OF CONTENTS
1
|
|
SECTION 101.Establishment
|
1
|
|
|
SECTION 102.Definitions
|
2
|
|
|
SECTION 103.Payment of Principal and
Interest
|
3
|
|
|
SECTION 104.Determination of Interest
|
4
|
|
|
SECTION 105.Denominations
|
5
|
|
|
SECTION 106.Global Securities
|
5
|
|
|
Miscellaneous Provisions
|
6
|
|
|
SECTION 201.Recitals by Company
|
6
|
|
|
SECTION 202.Ratification and Incorporation of
Original Indenture
|
6
|
|
|
SECTION 203.Executed in Counterparts
|
6
|
|
EXHIBIT A
|
Form of Series 2008A Note
|
|
EXHIBIT B
|
Certificate of Authentication
|
_________________________
1
Table of Contents does not
constitute part of the Indenture or have any bearing upon the
interpretation of any of its terms and provisions.
i
THIS
THIRD SUPPLEMENTAL INDENTURE is made as of the 21st day of August,
2008, by and between THE SOUTHERN COMPANY, a Delaware corporation,
30 Ivan Allen Jr. Boulevard, N.W., Atlanta, Georgia 30308 (the
“Company”), and WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, 7000 Central Parkway, Suite 550,
Atlanta, Georgia 30328 (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Company has heretofore
entered into a Senior Note Indenture, dated as of January 1, 2007
(the “Original Indenture”), with the Trustee, as
heretofore supplemented;
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture,
as heretofore supplemented and as further supplemented by this
Third Supplemental Indenture, is herein called the
“Indenture”;
WHEREAS, under the Original
Indenture, a new series of Senior Notes may at any time be
established pursuant to a supplemental indenture executed by the
Company 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 Third Supplemental
Indenture and to make it a valid and binding obligation of the
Company 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 2008A 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 2008A Floating Rate Senior Notes due August 20, 2010 (the
“Series 2008A Notes”).
There are to be authenticated and
delivered $600,000,000 principal amount of Series 2008A Notes, and
such principal amount of the Series 2008A Notes may be increased
from time to time
pursuant to Section 301 of the
Original Indenture. All Series 2008A 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 2008A
Notes. Any such additional Series 2008A Notes will have the same
interest rate, maturity and other terms as those initially issued.
No Series 2008A 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 2008A Notes shall be issued in definitive fully registered
form.
The Series 2008A 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 2008A Notes shall be The Depository
Trust Company.
The form of the Trustee’s
Certificate of Authentication for the Series 2008A Notes shall be
in substantially the form set forth in Exhibit B hereto.
Each Series 2008A 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 2008A 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.
“Calculation Agent”
means Wells Fargo Bank, National Association, or its successor
appointed by the Company, acting as calculation agent for the
Series 2008A Senior Notes.
“Interest Determination
Date” means the second London Business Day immediately
preceding the first day of the relevant Interest Period.
“Interest Payment Dates”
means the 20th day of February, May, August and November,
commencing November 20, 2008; provided, however, in the event that
any Interest Payment Date (other than the Interest Payment Date
that is the Stated Maturity) would otherwise be a day that is not a
Business Day, the Interest Payment Date will be the next succeeding
Business Day.
“Interest Period” means
the period commencing on an Interest Payment Date (or, with respect
to the initial Interest Period only, commencing on the Original
Issue Date) and ending on the day before the next succeeding
Interest Payment Date.
“LIBOR” means, with
respect to any Interest Period, the rate (expressed as a percentage
per annum) for deposits in U.S. dollars for a three-month period
commencing on the first day of that Interest Period and ending on
the next Interest Payment Date that appears on Reuters LIBOR01 Page
as of 11:00 a.m. (London time) on the Interest Determination Date
for that
2
Interest Period. If such rate does
not appear on the Reuters LIBOR01 Page as of 11:00 a.m. (London
time) on the Interest Determination Date for that Interest Period,
LIBOR will be determined on the basis of the rates at which
deposits in U.S. dollars for the Interest Period and in a principal
amount of not less than $1,000,000 are offered to prime banks in
the London interbank market by four major banks in the London
interbank market (which may include affiliates of one or more of
the underwriters of the Series 2008A Notes) selected by the
Calculation Agent (after consultation with the Company), at
approximately 11:00 a.m., London time on the Interest Determination
Date for that Interest Period. The Calculation Agent will request
the principal London office of each such bank to provide a
quotation of its rate. If at least two such quotations are
provided, LIBOR with respect to that Interest Period will be the
arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR with respect to that Interest Period will be
the arithmetic mean of the rates quoted by three major banks in New
York City (which may include affiliates of one or more of the
underwriters of the Series 2008A Notes) selected by the Calculation
Agent (after consultation with the Company), at approximately 11:00
a.m., New York City time, on the first day of that Interest Period
for loans in U.S. dollars to leading European banks for that
Interest Period and in a principal amount of not less than
$1,000,000. However, if fewer than three banks selected by the
Calculation Agent to provide quotations are quoting as described
above, LIBOR for that Interest Period will be the same as LIBOR as
determined for the previous Interest Period.
“London Business Day”
means a day that is a Business Day and a day on which dealings in
deposits in U. S. dollars are transacted, or with respect to any
future date are expected to be transacted, in the London interbank
market.
|
|
“Original Issue Date”
means August 21, 2008.
|
“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, whether or not a Business Day.
“Reuters LIBOR01 Page”
means the display designated as Reuters LIBOR01 on the Reuters 3000
Xtra (or such other page as may replace the Reuters LIBOR01 Page on
that service, or such other service as may be nominated as the
information vendor, for the purpose of displaying rates or prices
comparable to the London Interbank Offered rate for U.S. dollar
deposits).
“Stated Maturity” means
August 20, 2010; provided that if the Stated Maturity is not a
Business Day, the principal and interest due on that date will be
payable on the next succeeding Business Day, and no interest shall
accrue for the intervening period.
SECTION 103. Payment of Principal
and Interest . The principal of the Series 2008A Notes shall be
due at Stated Maturity. The unpaid principal amount of the Series
2008A Notes shall bear interest at the rates set quarterly pursuant
to Section 104 hereof until paid or duly provided for. Interest
shall be paid quarterly in arrears on each Interest Payment Date to
the Person in whose name the Series 2008A 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
3
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 2008A 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,
notice whereof shall be given to Holders of the Series 2008A 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 2008A 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
2008A Notes will include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for the Series
2008A Notes shall be computed and paid on the basis of the actual
number of days elapsed over a 360-day year.
Payment of the principal and
interest due at the Stated Maturity of the Series 2008A Notes shall
be made upon surrender of the Series 2008A Notes at the Corporate
Trust Office of the Trustee. The principal of and interest on the
Series 2008A 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 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 sixteen
(16) days prior to the date for payment by the Person entitled
thereto.
SECTION 104. Determination of
Interest. The Series 2008A Notes will bear
interest for each Interest Period at a per annum rate determined by
the Calculation Agent, subject to the maximum interest rate
permitted by New York or other applicable state law, as such law
may be modified by United States law of general application. The
interest rate applicable during each Interest Period will be equal
to LIBOR on the Interest Determination Date for such Interest
Period plus 0.70%. Promptly upon such determination, the
Calculation Agent will notify the Company and the Trustee, if the
Trustee is not then serving as the Calculation Agent, of the
interest rate for the new Interest Period. The interest rate
determined by the Calculation Agent, absent manifest error, shall
be binding and conclusive upon the beneficial owners and Holders of
the Series 2008A Notes, the Company and the Trustee.
Upon the request of a Holder of the
Series 2008A Notes, the Calculation Agent will provide to such
Holder the interest rate in effect on the date of such request and,
if determined, the interest rate for the next Interest
Period.
Accrued interest on a Series 2008A
Note for any period shall be calculated by multiplying the
principal amount of such Series 2008A Note by an accrued interest
factor. The accrued interest factor shall be computed by adding the
interest factor calculated for each day in the period for which
accrued interest is being calculated. The interest factor
(expressed as a decimal
4
rounded upwards if necessary) shall
be computed by dividing the interest rate (expressed as a decimal
rounded upwards if necessary) applicable to such date by
360.
All percentages resulting from any
calculation of the interest rate on the Series 2008A Notes shall be
rounded, if necessary, to the nearest one-hundred thousandth of a
percentage point, with five one-millionths of a percentage point
rounded upwards, and all dollar amounts used in or resulting from
such calculation shall be rounded to the nearest cent (with
one-half cent being rounded upwards).
SECTION 105. Denominations .
The Series 2008A Notes may be issued in the denominations of
$1,000, or any integral multiple thereof.
SECTION 106. Global
Securities . The Series 2008A Notes will be issued in the form
of one or more Glob
