Exhibit 4.2
GEORGIA POWER
COMPANY
TO
THE BANK OF NEW YORK
MELLON,
TRUSTEE
THIRTY-EIGHTH SUPPLEMENTAL
INDENTURE
DATED AS OF FEBRUARY 10,
2009
SERIES 2009A 5.95% SENIOR NOTES
DUE FEBRUARY 1, 2039
TABLE OF CONTENTS
1
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Series 2009A Senior Notes
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2
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SECTION 101.
Establishment
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2
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SECTION 102. Definitions
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2
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SECTION 103. Payment of Principal
and Interest
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3
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SECTION 104.
Denominations
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4
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SECTION 105. Global
Securities
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4
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SECTION 107. Redemption at the
Company’s Option
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5
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Miscellaneous Provisions
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5
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SECTION 201. Recitals by
Company
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5
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SECTION 202. Ratification and
Incorporation of Original Indenture
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6
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SECTION 203. Executed in
Counterparts
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6
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EXHIBIT A Form of Series 2009A Note
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EXHIBIT B Certificate of Authentication
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_________________________
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.
THIS THIRTY-EIGHTH SUPPLEMENTAL
INDENTURE is made as of the 10th day of February, 2009, by and
between GEORGIA POWER COMPANY, a Georgia corporation, 241 Ralph
McGill Boulevard, N.E., Atlanta, Georgia 30308-3374 (the
“Company”), and THE BANK OF NEW YORK MELLON, a New York
banking corporation, 101 Barclay Street, Floor 8W, New York, New
York 10286 (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, 1998
(the “Original Indenture”), with The Bank of New York
Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank)), 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
Thirty-Eighth 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 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 Thirty-Eighth
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 2009A 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 2009A 5.95% Senior Notes due February 1, 2039 (the
“Series 2009A Notes”).
There are to be authenticated and
delivered $500,000,000 principal amount of Series 2009A Notes, and
such principal amount of the Series 2009A Notes may be increased
from time to time pursuant to Section 301 of the Original
Indenture. All Series 2009A 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 2009A
Notes. Any such additional Series 2009A Notes will have the same
interest rate, maturity and other terms as those initially issued.
No Series 2009A Notes shall be authenticated and delivered in
excess of the principal amount as so increased except as provided
by Sections 203, 303, 304, 907 or 1107 of the Original
Indenture. The Series 2009A Notes shall be issued in definitive
fully registered form.
The Series 2009A 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 2009A Notes shall be The Depository
Trust Company.
The form of the Trustee’s
Certificate of Authentication for the Series 2009A Notes shall be
in substantially the form set forth in Exhibit B hereto.
Each Series 2009A 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.
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The Series 2009A Notes will not have
a sinking fund.
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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.
“Comparable Treasury
Issue” means the United States Treasury security selected by
an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series 2009A Notes to be redeemed that
would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the
Series 2009A Notes.
“Comparable Treasury
Price” means, with respect to any Redemption Date, (i) the
average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the
Company
obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such
quotations.
“Independent Investment
Banker” means an independent investment banking institution
of national standing appointed by the Company.
“Interest Payment Dates”
means February 1 and August 1 of each year, commencing
August 1, 2009.
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“Original Issue Date”
means February 10, 2009.
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“Reference Treasury
Dealer” means a primary United States Government securities
dealer in New York City appointed by the Company.
“Reference Treasury Dealer
Quotation” means, with respect to a Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company,
of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and
quoted in writing to the Company by such Reference Treasury Dealer
at 5:00 p.m. on the third Business Day in New York City preceding
such Redemption Date).
“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).
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“Stated Maturity”
means February 1, 2039.
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“Treasury Yield” means,
with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
SECTION 103. Payment of Principal
and Interest . The principal of the Series 2009A Notes shall be
due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Series 2009A Notes shall bear interest at
the rate of 5.95% 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 2009A Notes are
registered on the Regular Record Date for such Interest Payment
Date, provided that interest payable at the Stated Maturity
of principal or on a Redemption Date 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 2009A 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 2009A 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 2009A 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
2009A Notes will include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for the Series
2009A 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 2009A Notes 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.
Payment of the principal and
interest due at the Stated Maturity or earlier redemption of the
Series 2009A Notes shall be made upon surrender of the Series 2009A
Notes at the Corporate Trust Office of the Trustee. The principal
of and interest on the Series 2009A 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. Denominations .
The Series 2009A Notes may be issued in denominations of $1,000, or
any integral multiple thereof.
SECTION 105. Global
Securities . The Series 2009A Notes will be issued in the form
of one or more Global Securities registered in the name of the
Depositary (which shall be The Depository Trust Company) or its
nominee. Except under the limited circumstances described below,
Series 2009A Notes represented by one or more Global Securities
will not be exchangeable for, and will not otherwise be issuable
as, Series 2009A 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 2009A 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.
Subject to the procedures of the
Depositary, a Global Security shall be exchangeable for Series
2009A 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 2009A Notes. Any Global Security
that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series 2009A Notes register
