Exhibit 4(g)1
SOUTHERN POWER COMPANY
TO
THE BANK OF NEW YORK,
AS TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JULY 8, 2003
$575,000,000
4.875% SENIOR NOTES, SERIES C DUE JULY 15, 2015
4.875% SENIOR NOTES, SERIES D DUE JULY 15, 2015
TABLE OF CONTENTS1
Article I Additional Definitions.............................................2
Section 101. Definitions...................................2
Article II 2015 Notes........................................................7
Section 201. Establishment. ..............................7
Section 202. Aggregate Principal Amount....................7
Section 203. Payment of Principal and Interest.............7
Section 204. Denominations.................................8
Section 205. Global Securities and Certificated
Securities....................................8
Section 206. Form of Securities...........................10
Section 207. Transfer and Exchange........................11
Article III.................................................................15
Section 301. Optional Redemption..........................15
Article IV Covenants........................................................15
Section 401. Reporting Obligations........................15
Section 402. Limitation on Asset Sales....................16
Section 403. Limitation on Liens. :......................16
Section 404. Restrictions on Subsidiary Indebtedness......18
Section 405. Minimum Contract Maintenance Covenant........18
Article V Additional Events of Default......................................18
Section 501. Additional Events of Default.................18
Article VI Covenant Defeasance..............................................19
Section 601. Defeasance of Certain Obligations............19
Article VII Miscellaneous Provisions........................................20
Section 701. Amendment of Original Indenture..............20
Section 702. Recitals by Company..........................20
Section 703. Ratification and Incorporation of
Original Indenture...........................20
Section 704. Executed in Counterparts.....................20
Section 705. Legends......................................20
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.
THIS SECOND SUPPLEMENTAL INDENTURE is made as of the 8th day of July,
2003, between SOUTHERN POWER COMPANY, a corporation duly organized and existing
under the laws of the state of Delaware (herein called the "Company"), having
its principal office at 270 Peachtree Street, N.W., Atlanta, Georgia 30303 and
THE BANK OF NEW YORK, a banking corporation, duly organized and existing under
the laws of the state of New York, having its principal corporate trust office
at 101 Barclay Street, 21 West, New York, New York 10286, as Trustee (herein
called 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 June 1, 2002, as amended (the "Original Indenture"), with
the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as further
supplemented by this Second Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of unsecured senior
debentures, notes or other evidences of indebtedness (the "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 series of
Senior Notes to be designated the "4.875% Senior Notes, Series C due July 15,
2015" (the "Series C Notes") and a series of Senior Notes to be designated the
"4.875% Senior Notes, Series D due July 15, 2015" (the "Series D Notes"; and
together with the Series C Notes the "2015 Notes"), the form and substance of
the 2015 Notes and the terms, provisions and conditions thereof to be set forth
as provided in the Original Indenture and this Second Supplemental Indenture;
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 Second 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 I
Additional Definitions
Section 101. 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.
"Additional Interest" shall have the meaning assigned to it in the
Registration Rights Agreement.
"Additional Interest Event" shall have the meaning assigned to it in
the Registration Rights Agreement.
"Affiliate Subordinated Indebtedness" means the Southern Subordinated
Note and any other borrowings by the Company from Southern, or an affiliate of
Southern, provided that such borrowings are subordinated on terms substantially
similar to the terms of subordination set forth in the Southern Subordinated
Note.
"Asset Sale" means any sale, lease, sale and leaseback transfer,
conveyance or other disposition of any assets including by way of the issue by
the Company or any of its Subsidiaries of equity interests in such Subsidiaries
which own any assets, except (a) in the ordinary course of business to the
extent that such property is worn out or is no longer useful or necessary in
connection with the operation of the Company's business or sale of inventory,
(b) if, prior to such conveyance or disposition, each Rating Agency provides a
Ratings Reaffirmation of the 2015 Notes after giving effect to such transaction,
or (c) sale and leaseback or similar transfers of assets (other than Existing
Assets, except as provided herein).
"Clearstream" means Clearstream Banking, Societe Anonyme, or any
successor securities clearing agency.
"Consolidated Tangible Assets" means, at any date of determination, the
total assets of the Company and its Subsidiaries determined in accordance with
GAAP, excluding, however, from the determination of total assets (a) goodwill,
organizational expenses, research and product development expenses, trademarks,
trade names, copyrights, patents, patent applications, licenses and rights in
any thereof, and other similar intangibles, (b) all deferred charges or
unamortized debt discount and expenses, (c) all reserves carried and not
deducted from assets, (d) securities which are not readily marketable, (e) cash
held in sinking or other analogous funds established for the purpose of
redemption, retirement or prepayment of capital stock or other equity interests
or debt, (f) any write-up in the book value of any assets resulting from a
revaluation thereof subsequent to March 31, 2003, and (g) any items not included
in clauses (a) through (f) above which are treated as intangibles in conformity
with GAAP, plus the aggregate net book value of all asset sales or dispositions
made by the Company and any of its Subsidiaries since the Original Issue Date of
the 2015 Notes to the extent that the proceeds thereof or other consideration
received therefor are not invested or reinvested in a Permitted Business, or are
not retained by the Company or its Subsidiaries.
"Contracted Operating Cash Flow" means the projection done at the end
of each fiscal quarter of the next four fiscal quarters of the Company's and its
Subsidiaries' (other than Unrestricted Subsidiaries) total cash flow available
for debt service from fixed-price capacity power contracts, each contract having
a term from initial commencement to expiry of at least five years; provided,
however, that up to 12.5% of the Contracted Operating Cash Flows may be derived
from fixed-price capacity power contracts that have contract terms of at least
two years but less than five years from initial commencement to expiry. The
projection shall be consistent with financial reporting procedures of the
Company. The term fixed-price capacity power contracts includes any power
contract that states the base capacity price on a per unit basis (for example,
in dollars per megawatt) and which may allow for adjustments to that base price
that are generally encompassed within the Company's or the electric generation
industry's commercial expectations for a power contract of a similar duration
(including but not limited to adjustments to accommodate changed capacity
purchase levels, variations in expected or actual construction costs or
demonstrated capability levels, changes in equipment or law and force majeure);
provided, however, that a power contract will not be considered to be a
fixed-price capacity power contract if a material portion of the capacity price
varies based upon a market index for electric capacity or energy, fuel, weather
or other factor that is external to the facility and the transaction between the
Company and its customer. The method of calculating the energy price shall not
be considered in assessing whether a power contract is a fixed-price capacity
power contract.
"Distribution Compliance Period," with respect to the 2015 Notes, means
the period of 40 consecutive days beginning on and including the later of (i)
the day on which such 2015 Notes are first offered to Persons other than
distributors (as defined in Regulation S under the Securities Act) in reliance
on Regulation S and (ii) the Original Issue Date.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Euroclear" means Euroclear Bank S.A., as operator of the Euroclear System
or any successor securities clearing agency.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer Registration Statement" shall have the meaning assigned
to it in the Registration Rights Agreement.
"Existing Assets" means the following generating facilities of the
Company and its Subsidiaries: (i) Dahlberg Units 1-10; (ii) Wansley 6 and
Wansley 7; (iii) Franklin 1 and Franklin 2; (iv) Harris 1 and Harris 2; (v)
Stanton A; and (vi) McIntosh 10 and McIntosh 11.
"GAAP" means U.S. generally accepted accounting principles.
"Global Securities" means global certificates representing the 2015
Notes as described in Section 205.
"Holder" means a registered holder of a 2015 Note.
"Indebtedness" of any person means (i) all indebtedness of such person
for borrowed money, (ii) all obligations of such person evidenced by bonds,
debentures, notes, or other similar instruments, (iii) all obligations of such
person to pay the deferred purchase price of property or services (other than
trade accounts obtained on normal commercial terms in the ordinary course of
business or practice), (iv) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (v) all capital lease obligations of such person that
are required to be accounted for as a capital lease in accordance with GAAP,
(vi) all obligations of the type referred to in clauses (i) through (v) above of
other persons which such person is responsible for as guarantor, and (vii) all
Indebtedness of the type referred to in clauses (i) through (vi) above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any lien or security interest on
property.
"Institutional Accredited Investor" has the meaning set forth in
Section 205(a) hereof.
"Interest Payment Dates" mean January 15 and July 15 of each year.
"Make-Whole Premium" means, with respect to the 2015 Notes, a
computation as of a date not more than five days prior to the redemption date of
the following:
(i) the average life of the remaining scheduled payments of
principal in respect of outstanding 2015 Notes (the "Remaining Average
Life") as of the redemption date;
(ii) the yield to maturity for the United States treasury
security having an average life equal to the Remaining Average Life and
trading in the secondary market at the price closest to the principal
amount thereof (the "Primary Issue") (subject to extrapolation if no
United States treasury security has an average life equal to the
Remaining Average Life); and
(iii) the discounted present value of the then-remaining
scheduled payments of principal and interest (but excluding that
portion of any scheduled payment of interest that is actually due and
paid on the redemption date) in respect of outstanding 2015 Notes as of
the redemption date using a discount factor equal to the sum of (x) the
yield to maturity for the Primary Issue, plus (y) 25 basis points.
The amount of Make-Whole Premium in respect of 2015 Notes to be
redeemed shall be an amount equal to (x) the discounted present value of such
2015 Notes to be redeemed determined in accordance with clause (iii) above,
minus (y) the unpaid principal amount of such 2015 Notes; provided, however,
that the Make-Whole Premium shall not be less than zero.
"Original Issue Date" means July 8, 2003.
"Owner" means each Person who is the beneficial owner of a Global
Security as reflected in the records of the Depository or, if a Depository
participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Depository (directly or indirectly, in
accordance with the rules of such Depository).
"Permanent Regulation S Global Security" has the meaning set forth in
Section 205(b).
"Permitted Business" means a business that is the same as or similar
to our business as of the date that the 2015 Notes are issued under the
Indenture, or any business reasonably related thereto.
"QIBs" means qualified institutional buyers as defined in Rule 144A.
"Rating Agencies" mean Moody's Investors Service, Inc. and Standard &
Poor's Ratings Services.
"Ratings Reaffirmation" means a reaffirmation by a rating agency of the
higher of its minimum investment grade rating or the then current credit ratings
(as applicable) of any of the 2015 Notes outstanding, giving effect to the
transaction giving rise to such request for such reaffirmation.
"Recourse Indebtedness" means all Indebtedness (other than Affiliate
Subordinated Indebtedness) of the Company and its Subsidiaries (other than
Unrestricted Subsidiaries).
"Registered Exchange Offer" shall have the meaning assigned to it in
the Registration Rights Agreement
"Registration Rights Agreement" means the Registration Rights
Agreement, dated July 8, 2003 among the Company, Citigroup Global Markets Inc.
and Lehman Brothers Inc. relating to the registration of the 2015 Notes under
the Securities Act.
"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.
"Regulation S" means Regulation S under the Securities Act and any
successor regulation thereto.
"Rule 144" means Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Securities and Exchange Commission.
"Rule 144A Global Security" means any Series C Note that is to be
traded pursuant to Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository), or any successor Person thereto and
shall initially be the Trustee.
"Shelf Registration Statement" shall have the meaning assigned to it in
the Registration Rights Agreement.
"Southern" means The Southern Company.
"Southern Subordinated Note" means the subordinated promissory note,
dated June 20, 2003, issued by the Company to Southern, as amended.
"Stated Maturity" means July 15, 2015.
"Subsidiary" means any corporation or other entity of which sufficient
voting stock or other ownership or economic interests having ordinary voting
power to elect a majority of the board of directors (or equivalent body) are at
the time directly or indirectly held by the Company.
"Temporary Regulation S Global Security" has the meaning set forth in
Section 205(b).
"Total Capitalization" means the sum of (a) the aggregate of the
capital stock and other equity accounts (including retained earnings and
paid-in-capital) of the Company and its Subsidiaries (other than Unrestricted
Subsidiaries; provided, however, that retained earnings of Unrestricted
Subsidiaries shall be included); (b) all Recourse Indebtedness; and (c)
Affiliate Subordinated Indebtedness.
"Total Operating Cash Flow" means the projection done at the end of
each fiscal quarter of the next four fiscal quarters of the Company and its
Subsidiaries' (other than Unrestricted Subsidiaries) total cash flow available
for debt service, as projected consistent with the Company's financial reporting
procedures.
"Transfer Restricted Security" shall have the meaning assigned to it in
the Registration Rights Agreement.
"Unrestricted Subsidiary" means any Subsidiary of the Company all the
Indebtedness of which (a) is nonrecourse to the Company or any of its
Subsidiaries (other than any other Unrestricted Subsidiary), other than with
respect to stock or other ownership interest of the Company or any of its
Subsidiaries in such Subsidiary, and (b) is not secured by any property of the
Company or any of its Subsidiaries (other than the property of, or stock or
other ownership interest in, an Unrestricted Subsidiary).
"U.S. Government Obligations" means securities that are (i) direct and
unconditional obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by, and acting as an agency or instrumentality of, the
United States of America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America, which, in
either case are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company
subject to federal or state supervision or examination with a combined capital
and surplus of at least $100,000,000 as custodian with respect to any such U.S.
Government Obligations or a specific payment of interest on or principal of any
such U.S. Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of interest on
or principal of the U.S. Government Obligation evidenced by such depository
receipt.
Article II
2015 Notes
Section 201. Establishment. The Series C Notes shall be designated as the
Company's "4.875% Senior Notes, Series C due July 15, 2015" and the Series D
Notes shall be designated as the Company's "4.875% Senior Notes, Series D due
July 15, 2015". The Series C Notes and the Series D Notes shall be treated for
all purposes under the Indenture as a single class or series of Senior Notes.
Section 202. Aggregate Principal Amount. The Trustee shall authenticate and
deliver (i) Series C Notes for original issue on the Original Issue Date in the
aggregate principal amount of $575,000,000 and (ii) Series D Notes from time to
time thereafter for issue only in exchange for Series C Notes pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement or pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement, in each case upon a Company Order for
authentication and delivery thereof and satisfaction of Sections 301 and 302 of
the Original Indenture. The aggregate principal amount of the 2015 Notes shall
be initially limited to $575,000,000. All 2015 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 2015 Notes. Any such additional 2015
Notes will have the same interest rate, maturity and other terms as those
initially issued. No further Series C Notes shall be authenticated and delivered
except as provided by Sections 203, 302, 303, 907 or 1107 of the Original
Indenture. The Series C Notes shall be issued in definitive fully registered
form.
The form of the Trustee's Certificate of Authentication for the 2015
Notes shall be in substantially the form set forth in Exhibit B hereto.
Each 2015 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.
Section 203. Payment of Principal and Interest. The principal of the 2015 Notes
shall be due at Stated Maturity (unless earlier redeemed). The unpaid principal
amount of the 2015 Notes shall bear interest at the rate of 4.875% per annum
until paid or duly provided for. Interest shall be paid semi-annually in arrears
on each Interest Payment Date to the Person in whose name the 2015 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.
The initial Interest Payment Date shall be January 15, 2004. 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 2015 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 2015 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 2015
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 2015 Notes will include interest accrued
to, but excluding, the respective Interest Payment Dates. Interest payments for
the 2015 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 2015 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 2015 Notes shall be made upon surrender of the 2015
Notes at the Corporate Trust Office of the Trustee, 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.
Additional Interest shall accrue on the Transfer Restricted Securities
over and above the interest rate set forth herein at a rate of 0.50% per annum
from and including the date on which any Additional Interest Event shall occur
to, but excluding, the date on which all such Additional Interest Events have
been cured or, if earlier, the date on which the Transfer Restricted Securities
may first be resold in reliance on Rule 144(k). All Additional Interest shall be
paid to the Holders of Transfer Restricted Securities in the same manner and at
the same time as regular payments of interest on the 2015 Notes. In the event
that more than one Additional Interest Events occurs at the same time, the
maximum increase in the interest rate shall be 0.50% per annum.
Section 204. Denominations. The 2015 Notes may be issued in denominations
of $100,000 and integral multiples of $1,000 in excess thereof.
Section 205. Global Securities and Certificated Securities.
(a) General. The Series C Notes will be resold initially only to (i)
QIBs in reliance on Rule 144A under the Securities Act ("Rule 144A"), (ii)
institutional "accredited investors" as such term is defined in Rule
501(a)(1), (2),(3) and (7) of Regulation D under the Securities Act (each,
an "Institutional Accredited Investor") and (iii) Persons other than U.S.
Persons (as defined in Regulation S) in reliance on Regulation S under the
Securities Act ("Regulation S"). Series C Notes may thereafter be
transferred to, among others, QIBs, purchasers in reliance on Regulation S,
and Institutional Accredited Investors in each case, subject to the
restrictions on transfer set forth herein.
(b) Global Securities.
(i) Form. Series C Notes initially resold pursuant to Rule
144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form
(collectively, the "Rule 144A Global Security") and Series C
Notes initially resold pursuant to Regulation S shall be issued
initially in the form of one or more temporary global securities
in definitive, fully registered form (collectively, the
"Temporary Regulation S Global Security"), in each case without
interest coupons and with the global securities legend and
restricted securities legend set forth in Exhibit A hereto, which
shall be deposited on behalf of the purchasers of the Series C
Notes represented thereby with the Securities Custodian, and
registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the
Trustee as provided in the Indenture. Except as set forth in this
Section 205, beneficial ownership interests in the Temporary
Regulation S Global Security (x) will not be exchangeable for
interests in the Rule 144A Global Security, the permanent global
security (the "Permanent Regulation S Global Security"), or any
other security without a legend containing restrictions on
transfer of such security prior to the expiration of the
Distribution Compliance Period and (y) then may be exchanged for
interests in a Rule 144A Global Security or the Permanent
Regulation S Global Security only upon certification that
beneficial ownership interests in such Temporary Regulation S
Global Security are owned either by non-U.S. persons or U.S.
persons who purchased such interests in a transaction that did
not require registration under the Securities Act.
The Rule 144A Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are
collectively referred to herein as "Global Securities". The aggregate
principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the
Trustee and the Depository or its nominee as hereinafter provided.
(ii) Book-Entry Provisions. This Section shall apply only to
a Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.05(b)(ii), authenticate and deliver initially
one or more Global Securities that (a) shall be registered in the
name of the Depository for such Global Security or Global
Securities or the nominee of such Depository and (b) shall be
delivered by the Trustee to such Depository or pursuant to such
Depository's instructions or held by the Trustee as custodian for
the Depository.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global
Security, and the Company, the Trustee and any agent of the Company or
the Trustee shall be entitled to treat the Depository as the absolute
owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices
of such Depository governing the exercise of the rights of a holder of
a beneficial interest in any Global Security.
To the extent a notice or other communication to the
beneficial owners of the 2015 Notes is required under the Indenture,
unless and until Certificated Securities shall have been issued to such
owners, the Trustee shall give all such notices and communications
specified herein to be given to such owners to the Depository, and
shall have no obligations to such Owners.
(c) Certificated Securities. Series C Notes sold to Institutional
Accredited Investors shall be issued initially in the form of a fully
registered, certificated Series C Note ("Certificated Securities").
Except as provided in this Section 205, owners of beneficial interests
in Global Securities shall not be entitled to receive physical
delivery of Certificated Securities.
Global Securities shall be exchangeable for Certificated Securities if
(i) the Depository (x) notifies the Company that it is unwilling or unable to
continue as Depository for the Global Securities and the Company thereupon fails
to appoint a successor Depository within 90 days after receipt of such notice or
(y) has ceased to be a clearing agency registered under the Exchange Act and the
Company thereupon fails to appoint a successor Depository within 90 days after
it becomes aware of such cessation or (ii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default under the Indenture and payment of
principal and interest has been accelerated. The Trustee shall notify the
Depository (in the case of (ii)) and the Holders of any such event. Upon
surrender to the Trustee of the typewritten certificate or certificates
representing the Global Securities by the Depository, accompanied by
registration instructions, the Trustee shall execute and authenticate the
certificates in accordance with the instructions of the Depository. Neither the
Security Registrar nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Certificated Securities, the
Trustee shall recognize the Holders of the Certificated Securities as Holders.
The Certificated Securities shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Company, as
evidenced by the execution thereof by the Company, and shall bear the legend set
forth on Exhibit A hereto unless the Company informs the Trustee that such
legend is no longer required.
Section 206. Form of Securities. The Global Securities and Certificated
Securities shall be substantially in the form attached as Exhibit A thereto.
Section 207. Transfer and Exchange
(a) General. The 2015 Notes may not be transferred except in compliance
with the legend contained in Exhibit A unless otherwise determined by
the Company in accordance with applicable law. No service charge will
be made for any transfer or exchange of 2015 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.
(b) Transfer and Exchange of Global Securities.
(i) If a holder of a beneficial interest in the Rule 144A Global
Security wishes at any time to exchange its interest in the Rule 144A
Global Security for an interest in the Permanent Regulation S Global
Security, or to transfer its interest in the Rule 144A Global Security
to a person who wishes to take delivery thereof in the form of an
interest in the Permanent Regulation S Global Security, such holder
may, subject to the rules and procedures of the Depository and to the
requirements set forth in the following sentence, exchange or cause
the exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in the Permanent Regulation S Global
Security. Upon receipt by the Trustee, as transfer agent, of (1)
instructions given in accordance with the Depository procedures from
or on behalf of a holder of a beneficial interest in the Rule 144A
Global Security, directing the Trustee, as transfer agent, to credit
or cause to be credited a beneficial interest in the Permanent
Regulation S Global Security in an amount equal to the beneficial
interest in the Rule 144A Global Security to be exchanged or
transferred, (2) a written order given in accordance with the
Depository's procedures containing information regarding the Euroclear
or Clearstream account to be credited with such increase and the name
of such account, and (3) a certificate in the form of Exhibit C hereto
given by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S under the
Securities Act, the Trustee, as transfer agent, shall promptly deliver
appropriate instructions to the Depository, its nominee, or the
custodian for the Depository, as the case may be, to reduce or reflect
on its records a reduction of the Rule 144A Global Security by the
aggregate principal amount of the beneficial interest in such Rule
144A Global Security to be so exchanged or transferred from the
relevant participant, and the Trustee, as transfer agent, shall
promptly deliver appropriate instructions to the Depository, its
nominee, or the custodian for the Depository, as the case may be,
concurrently with such reduction, to increase or reflect on its
records an increase of the principal amount of such Permanent
Regulation S Global Security by the aggregate principal amount of the
beneficial interest in such Rule 144A Global Security to be so
exchanged or transferred, and to credit or cause to be credited to the
account of the person specified in such instructions (who may be
Euroclear or Clearstream or another agent member of Euroclear or
Clearstream or both, as the case may be, acting for and on behalf of
them) a beneficial interest in such Permanent Regulation S Global
Security equal to the reduction in the principal amount of such Rule
144A Global Security.
(ii) If a holder of a beneficial interest in the Permanent
Regulation S Global Security wishes at any time to exchange its
interest in the Permanent Regulation S Global Security for an interest
in the Rule 144A Global Security, or to transfer its interest in the
Permanent Regulation S Global Security to a person who wishes to take
delivery thereof in the form of an interest in the Rule 144A Global
Security, such holder may, subject to the rules and procedures of
Euroclear or Clearstream and the Depository, as the case may be, and
to the requirements set forth in the following sentence, exchange or
cause the exchange or transfer or cause the transfer of such interest
for an equivalent beneficial interest in such Rule 144A Global
Security. Upon receipt by the Trustee, as transfer agent, of (1)
instructions given in accordance with the procedures of Euroclear or
Clearstream and the Depository, as the case may be, from or on behalf
of a beneficial owner of an interest in the Permanent Regulation S
Global Security directing the Trustee, as transfer agent, to credit or
cause to be credited a beneficial interest in the Rule 144A Global
Security in an amount equal to the beneficial interest in the
Permanent Regulation S Global Security to be exchanged or transferred,
(2) a written order given in accordance with the procedures of
Euroclear or Clearstream and the Depository, as the case may be,
containing information regarding the account with the Depository to be
credited with such increase and the name of such account, and (3)
prior to the expiration of the Distribution Compliance Period, a
certificate in the form of Exhibit C hereto given by the holder of
such beneficial interest and stating that the person transferring such
interest in such Permanent Regulation S Global Security reasonably
believes that the person acquiring such interest in the Rule 144A
Global Security is a QIB and is obtaining such beneficial interest for
its own account or the account of a QIB in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any
state of the United States or any other jurisdiction, the Trustee, as
transfer agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as the
case may be, to reduce or reflect on its records a reduction of the
Permanent Regulation S Global Security by the aggregate principal
amount of the beneficial interest in such Permanent Regulation S
Global Security to be exchanged or transferred, and the Trustee, as
transfer agent, shall promptly deliver appropriate instructions to the
Depository, its nominee, or the custodian for the Depository, as the
case may be, concurrently with such reduction, to increase or reflect
on its records an increase of the principal amount of the Rule 144A
Global Security by the aggregate principal amount of the beneficial
interest in the Permanent Regulation S Global Security to be so
exchanged or transferred, and to credit or cause to be credited to the
account of the person specified in such instructions a beneficial
interest in the Rule 144A Global Security equal to the reduction in
the principal amount of the Permanent Regulation S Global Security.
After the expiration of the Distribution Compliance Period, the
certification requirement set forth in clause (3) of the second
sentence of this Section 207(b)(ii) will no longer apply to such
exchanges and transfers.
(iii) Any beneficial interest in one of the Global Securities
that is transferred to a person who takes delivery in the form of an
interest in the other Global Securities will, upon transfer, cease to
be an interest in such Global Security and become an interest in the
other Global Securities and, accordingly, will thereafter be subject
to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Security Note for as long as
it remains such an interest.
(iv) Beneficial interests in Temporary Regulation S Global
Securities may be exchanged for interests in Rule 144A Global
Securities or Permanent Regulation S Global Securities if (1) such
exchange occurs in connection with a transfer of securities in
compliance with Rule 144A, and (2) the transferor of the beneficial
interest in the Temporary Regulation S Global Security first delivers
to the Trustee a written certificate (in a form satisfactory to the
Trustee) to the effect that the beneficial interest in the Temporary
Regulation S Global Security is being transferred to a Person (a) who
the transferor reasonably believes to be a QIB (b) purchasing for its
own account or the account of a QIB in a transaction meeting the
requirements of Rule 144A, and (c) in accordance with all applicable
securities laws of the states of the United States and other
jurisdictions.
(v) During the Distribution Compliance Period, beneficial
ownership interests in Temporary Regulation S Global Securities may
only be sold, pledged or transferred through Euroclear or Clearstream
in accordance with the applicable procedures relating to such
institutions and only (i) to the Company, (ii) so long as such
security is eligible for resale pursuant to Rule 144A, to a Person
whom the selling holder reasonably believes is a QIB that purchases
for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A, (iii) in an offshore
transaction in accordance with Regulation S (other than a transaction
resulting in an exchange for interest in a Permanent Regulation S
Global Security), (iv) pursuant to an exemption from registration
under the Securities Act provided by Rule 144 (if applicable) under
the Securities Act or (v) pursuant to an effective registration
statement under the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United States.
(c) Transfer and Exchange of Global Securities and Certificated Securities.
(i) In the event that a Global Security is exchanged for a
Certificated Security as provided in Section 205(c), such Certificated
Security may be exchanged or transferred for one another, subject to
Section 303 of the Original Indenture, only in accordance with such
procedures as are substantially consistent with the provisions of
clauses (b)(i) and (ii) above (including the certification
requirements intended to ensure that such exchanges or transfers
comply with Rule 144, Rule 144A or Regulation S, as the case may be)
and as may be from time to time reasonably adopted by the Company.
(ii) Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, the
Trustee shall cancel such Certificated Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing
instructions and procedures existing of the Depository and the
Securities Custodian, the aggregate principal amount of 2015 Notes
represented by the Rule 144A Global Security or Permanent Regulation S
Global Security, as applicable, to be increased by the aggregate
principal amount of the Certificated Security to be exchanged and
shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A
Global Security or Permanent Regulation S Global Security, as
applicable, equal to the principal amount of the Certificated Security
so canceled. If no Rule 144A Global Securities or Permanent Regulation
S Global Securities, as applicable, are then outstanding, the Company
shall issue and the Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate, a new Rule 144A
Global Security or Permanent Regulation S Global Security, as
applicable, in the appropriate principal amount.
(d) Certificates. In connection with any transfer described in paragraphs
(b) and (c) of this Section 207, the Trustee shall receive a certificate of
transfer in the form attached as Exhibit C hereto. Additionally, upon any
transfer or exchange to an Institutional Accredited Investor, the Company and
the Trustee shall receive a certificate in the form attached as Exhibit D
hereto.
(e) Transfer Restricted Security. Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act, which shall be certified to the
Trustee and Security Registrar upon which each may conclusively rely:
(i) in the case of any Transfer Restricted Security represented by a
Certificated Security, the Security Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Certificated
Security that does not bear the legend set forth in Exhibit A hereto and
rescind any restriction on the transfer of such Transfer Restricted
Security; and
(ii) in the case of any Transfer Restricted Security represented by a
Global Security, such Transfer Restricted Security shall not be required to
bear the legend set forth in Exhibit A hereto if all other interests in
such Global Note have been or are concurrently being sold or transferred
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act.
(f) Registered Exchange Offer. Notwithstanding the foregoing, upon
consummation of the Registered Exchange Offer, the Company shall issue and, upon
receipt of a Company Order in accordance with Section 303 of the Original
Indenture, the Trustee shall authenticate Series D Notes in exchange for Series
C Notes accepted for exchange in the Registered Exchange Offer, which Series D
Notes shall not bear the transfer restriction legend set forth in Exhibit A
hereto and shall not provide for Additional Interest, and the Security Registrar
shall rescind any restriction on the transfer of such Series D Notes, in each
case unless the Holder of such Series C Notes (A) is a broker-dealer tendering
Series C Notes acquired directly from the Company or an "affiliate" (as defined
in Rule 144 under the Securities Act) of the Company for its own account, (B) is
a Person who has an arrangement or understanding with any Person to participate
in the "distribution" (within the meaning of the Securities Act) of the Series D
Notes, (C) is a Person who is an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company or (D) will not be acquiring the Series D Notes
in the ordinary course of such Holder's business. The Company shall identify to
the Trustee such Holders in a written certification signed by an Officer of the
Company and, absent certification from the Company to such effect, the Trustee
shall assume that there are no such Holders.
Article III
Redemption
Section 301. Optional Redemption. The 2015 Notes will be redeemable by the
Company in whole or in part at any time upon not less than 30 nor more than 60
days' notice, at a redemption price of 100% of the principal amount of the 2015
Notes being redeemed plus accrued interest thereto, if any, to the redemption
date, plus the Make-Whole Premium.
In the event of redemption of the 2015 Notes in part only, a
new 2015 Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The 2015 Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section
1104 of the Original Indenture except that any Notice of Redemption shall not
specify the Redemption Price but only the manner of calculation thereof.
Any redemption of less than all of the 2015 Notes shall, with
respect to the principal thereof, be divisible by $1,000.
Article IV
Covenants
Section 401. Reporting Obligations
(a) General. The Company will furnish to the Trustee:
(i) at the time of the delivery of the reports provided for in
Section 704(1) of the Original Indenture, an officer's
certificate to the effect that, to the best of such officer's
knowledge, no default or event of default under the 2015 Notes
or the Indenture has occurred and is continuing or, if any
default or event of default thereunder has occurred and is
continuing, specifying the nature and extent thereof and what
action is being taken or is proposed to be taken in response
thereto; and
(ii) promptly after the Company obtains actual knowledge of the
occurrence thereof, written notice of the occurrence of any
event or condition which constitutes an event of default, and
an Officer's Certificate of the Company specifically stating
that such event of default has occurred and setting forth the
details thereof and the action which is being taken or is
proposed to be taken with respect thereto.
All such information provided to the Trustee as indicated above also
will be provided by the Trustee upon written request to the Trustee (which may
be a single continuing request), to (x) Holders, (y) holders of beneficial
interests in the 2015 Notes or (z) prospective purchasers of the 2015 Notes or
beneficial interests in the 2015 Notes. The Company will furnish to the Trustee,
upon its request, sufficient copies of all such information to accommodate the
requests of such Holders and prospective holders of beneficial interests in the
2015 Notes.
Upon the request of any Holder, any holder of a beneficial interest in
the 2015 Notes, or the Trustee (on behalf of a Holder or a holder of a
beneficial interest in the 2015 Notes), we will furnish such information as is
specified in paragraph (d)(4) of Rule 144A to Holders (and to holders of
beneficial interests in the 2015 Notes), prospective purchasers of the 2015
Notes (and of beneficial interests in the Senior Notes) who are QIBs or
"Institutional Accredited Investors" or to the Trustee for delivery to such
Holder or prospective purchasers of the 2015 Notes or beneficial interests
therein, as the case may be, unless, at the time of such request, the Company is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act.
Section 402. Limitation on Asset Sales. Except for the sale of the Company's
properties and assets substantially as an entirety as described in Article VIII
of the Original Indenture, and other than assets required to be sold to conform
with governmental regulations, the Company will not, and will not permit any of
its Subsidiaries to, consummate any Asset Sale, if the aggregate net book value
of all such Asset Sales consummated during the most recent twelve month period
would exceed 10% of Consolidated Tangible Assets as of the beginning of the
Company's most recently ended full fiscal quarter preceding such Asset Sale;
provided, however, that any such Asset Sale will be disregarded for purposes of
the 10% limitation specified above if the proceeds thereof (i) are, within 18
months of such Asset Sale, invested or reinvested by the Company or any
Subsidiary in a Permitted Business, (ii) are used by the Company or a Subsidiary
to repay Indebtedness of the Company or such Subsidiary or (iii) are retained by
the Company or a Subsidiary; provided, further, to the extent that the Company
engages in a sale-leaseback transaction with the Effingham County Industrial
Development Authority (or other similar governmental entity) for ad valorem tax
abatement opportunities relating to McIntosh 10 and McIntosh 11, such
transaction shall not be deemed to be an Asset Sale for purposes of this Section
402.
Section 403. Limitation on Liens. The Company shall not, and shall not permit
any of its Subsidiaries to, issue, assume, guarantee or permit to exist any
Indebtedness for borrowed money secured by any lien on any property of the
Company or its Subsidiaries, whether owned on the date that the 2015 Notes are
issued or thereafter acquired, without in any such case effectively securing the
outstanding 2015 Notes (together with, if the Company shall so determine, any
other Indebtedness of or guaranteed by the Company ranking equally with the 2015
Notes) equally and ratably with such Indebtedness (but only so long as such
Indebtedness is so secured); provided, however, that the foregoing restriction
shall not apply to the following liens:
(i) liens, if any, in existence on the date the 2015 Notes are
issued;
(ii) pledges or deposits in the ordinary course of business in
connection with bids, tenders, contracts or statutory
obligations or to secure surety or performance bonds;
(iii) liens imposed by law, such as carriers', warehousemen's and
mechanics' liens, arising in the ordinary course of business;
(iv) liens for taxes being contested in good faith;
(v) minor encumbrances, easements or reservations which do not in
the aggregate materially adversely affect the value of the
properties or impair their use;
(vi) liens on any property existing at the time of acquisition
thereof by the Company or any of its Subsidiaries;
(vii) liens on property (other than Existing Assets) securing (a)
all or any portion of the cost of acquiring, constructing,
altering, improving or repairing any real or personal
property or improvements used or to be used in connection
with such property or (b) Indebtedness incurred by the
Company or any of its Subsidiaries prior to, at the time of,
or within one year after the later of the acquisition, the
completion of construction (including any improvements on an
existing property), alteration, improvement, repair or the
commencement of commercial operation of the property, which
Indebtedness is incurred for the purpose of financing or
refinancing all or any part of the purchase price,
construction, improvements, alterations or repairs;
(viii) liens to secure purchase money Indebtedness not in excess of
the cost or value of the property acquired;
(ix) mortgages securing obligations issued by a state, territory or
possession of the United States, or any political subdivision
of any of the foregoing or the District of Columbia, to
finance the acquisition or construction of property, and on
which the interest is not, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includible in gross income of
the holder by reason of Section 103(a)(1) of the Internal
Revenue Code (or any successor to such provision) as in effect
at the time of the issuance of such obligations;
(x) other liens to secure Indebtedness for borrowed money or in
connection with a project financing (including a
sale-leaseback transaction) in an aggregate principal amount
which does not at the time such Indebtedness is incurred
exceed 20% of Consolidated Tangible Assets; or
(xi) liens granted in connection with extending, renewing,
replacing or refinancing (or successive extensions, renewals,
replacements or refinancings) any of the Indebtedness (so long
as there is no increase in the principal amount of the
Indebtedness) described in clauses (i) through (x) above.
In the event that the Company or any of its Subsidiaries shall propose
to pledge, mortgage or hypothecate any property, other than as permitted by
clauses (i) through (xi) of the previous paragraph, the Company shall (prior
thereto) give written notice thereof to the Trustee, who shall give notice to
the Holders, and the Company shall, prior to or simultaneously with such pledge,
mortgage or hypothecation, effectively secure all the 2015 Notes equally and
ratable with such Indebtedness. This covenant does not restrict the Company's
ability or the ability of any of its Subsidiaries to pledge, mortgage,
hypothecate or permit to exist any mortgage, pledge or lien upon any assets
(other than an Existing Asset, except to the extent permitted by clauses (i)
through (xi) above) in connection with project financings or otherwise.
Section 404. Restrictions on Subsidiary Indebtedness. Except to the extent
permitted under Section 403 hereof, the Company shall not permit any Subsidiary
which owns any Existing Asset to create or incur or suffer to exist any
Indebtedness for borrowed money.
Section 405. Minimum Contract Maintenance Covenant. The Company will not declare
or pay any dividends or make any other distributions (except dividends payable
or distributions made in shares of its common stock and dividends payable in
cash in cases where, concurrently with the payment of the dividend, an amount in
cash equal to the dividend is received by the Company as a capital contribution
or as the proceeds of the issue and sale of shares of its common stock) on its
common stock, or purchase or permit any of its Subsidiaries to purchase any
shares of its common stock or make any payment on Affiliate Subordinated
Indebtedness, unless (i) the percentage derived from dividing Contracted
Operating Cash Flows by Total Operating Cash Flows is at least 80%, or (ii) the
ratio of Recourse Indebtedness to Total Capitalization is 60% or less.
Article V
Additional Events of Default
Section 501. Additional Events of Default. In accordance with Section 501 (7) of
the Original Indenture, each of the following events, in addition to those
provided in Section 501 of the Original Indenture, shall be an Event of Default
with respect to the 2015 Notes:
(a) an event of default, as defined in any of the Company's instruments
under which there may be issued, or by which there may be secured or
evidenced, of any Indebtedness of the Company that has resulted in the
acceleration of such Indebtedness, or any default occurring in payment
of any such Indebtedness at final maturity (and after the expiration of
any applicable grace periods), other than such Indebtedness the
principal of which does not individually, or in the aggregate, exceed
$50,000,000; or
(b) one or more final judgments, decrees or orders of any court, tribunal,
arbitrator, administrative or other governmental body or similar entity
for the payment of money is rendered against the Company or any of its
properties in an aggregate amount in excess of $50,000,000 (excluding
the amount covered by insurance) and such judgment, decree or order
remains unvacated, undischarged, unsatisfied and unstayed for more than
60 consecutive days, except while being contested in good faith by
appropriate proceedings.
Article VI
Covenant Defeasance
Section 601. Defeasance of Certain Obligations. The Company may omit to comply
with any term, provision or condition set forth in Sections 402 through 405 of
this Second Supplemental Indenture and Section 501(4) (with respect to Sections
402 through 405) of the Original Indenture and Sections 501(a) and 501(b) of
this Second Supplemental Indenture shall be deemed not to be Events of Default
on the 123rd day after the deposit referred to in subparagraph (a) hereof if:
(a) with reference to this Section 601, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 611 of the
Original Indenture) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
the 2015 Notes, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms (without reinvestment)
will provide not later than one day before the due date of any payment
referred to in clause (x) of this Section 601 money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the
Trustee, (x) the principal of, premium, if any, and each installment
of principal and interest on the Outstanding 2015 Notes at the Stated
Maturity of such principal or installment of principal or interest;
(b) the Company has delivered to the Trustee (i) an Opinion of Counsel to
the effect that Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 601 and will be subject to federal
income tax on the same amount and in the same manner at the same times
as would have been the case if such deposit, defeasance and discharge
had not occurred, and (ii) an Opinion of Counsel to the effect that
the defeasance trust does not constitute an "investment company" under
the Investment Company Act of 1940, as amended, and after the passage
of 123 days following the deposit, the trust fund will not be subject
to the effect of Section 547 of the U.S. Bankruptcy Code or Section 15
of the New York Debtor and Creditor Law;
(c) immediately after giving effect to such deposit on a pro forma basis,
no Event of Default, or event that after the giving of notice or lapse
of time or both would become an Event of Default, shall have occurred
and be continuing on the date of such deposit or during the period
ending on the 123rd day after the date of such deposit, and such
deposit shall not result in a breach or violation of, or constitute a
default under, any other agreement or instrument to which the Company
is a party or by which the Company is bound; and
(d) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (which Opinion of Counsel may be
subject to customary assumptions and exclusions), each stating that
all conditions precedent with respect to such covenant defeasance have
been complied with.
Article VII
Miscellaneous Provisions
Section 701. Amendment of Original Indenture. As permitted by Section 901(9) of
the Original Indenture, Section 502 of the Original Indenture is hereby amended
by deleting the references to "Section 501(7) or Section 501(8)" contained
therein and replacing, in lieu thereof, references to "Section 501(5) or Section
501(6)."
Section 702. Recitals by Company. The recitals in this Second 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 2015 Notes and of this Second Supplemental Indenture as fully and
with like effect as if set forth herein in full.
Section 703. Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this Second Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
Section 704. Executed in Counterparts. This Second 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.
Section 705. Legends. Except as determined by the Company in accordance with
applicable law, each 2015 Note shall bear the applicable legends relating to
restrictions on transfer pursuant to the securities laws in substantially the
form set forth on Exhibit A hereto.
Article I
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized signatories, all as of the
day and year first above written.
SOUTHERN POWER COMPANY
By: /s/ Cliff S. Thrasher
Name: Cliff S. Thrasher
Title: Senior Vice President
Attest:
/s/Wayne Boston
Name: Wayne Boston
Title: Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Elizabeth T. Wagner
Name: Elizabeth T. Wagner
Title: As Agent
Attest:
/s/ Stefan Victory
Name: Stephan Victory
Title: As Agent
EXHIBIT A
FORM OF SERIES [C/D] NOTE
[Rule 144A Global Security]
[Regulation S Global Security]
[Certificated Security]
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OR PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE
COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF NOTES WITHIN THE UNITED STATES
BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE REGISTRATION
REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS MADE OTHERWISE
THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE TRANSFERRED ONLY
IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION
AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE IN ATLANTA, GEORGIA.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIFED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. EACH HOLDER OF THIS NOTE
REPRESENTS TO SOUTHERN POWER COMPANY THAT (a) SUCH HOLDER WILL NOT SELL, PLEDGE
OR OTHERWISE TRANSFER THIS NOTE (WITHOUT THE CONSENT OF SOUTHERN POWER COMPANY)
OTHER THAN (I) TO SOUTHERN POWER COMPANY, (II) IN THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 144A UNDER THE
SECURITIES ACT, (III) IN ACCORDANCE WITH RULE 144 UNDER THE SECURITIES ACT, (IV)
OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT, (V) TO AN INSTITUTIONAL ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE AND
SOUTHERN POWER COMPANY A LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE), (VI) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT SUBJECT IN THE CASE OF CLAUSES (II),
(III), OR (IV) TO THE RECEIPT BY SOUTHERN POWER COMPANY OF AN OPINION OF COUNSEL
OF SUCH OTHER EVIDENCE ACCEPTABLE TO SOUTHERN POWER COMPANY THAT SUCH RESALE,
PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, AND
THAT (b) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE OF THE RESALE RESTRICTIONS REFERRED TO HEREIN AND DELIVER
TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO THE SALE
A COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO (COPIES OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE).
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN
THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR
INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY
REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT
CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF
THE "40-DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE 902(f)
OF REGULATION S UNDER THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN
FORM REASONABLY SATISFACTORY TO THE TRUSTEE THAT SUCH BENEFICIAL INTERESTS ARE
OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED SUCH INTERESTS IN
A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTEREST IN
THIS TEMPORARY REGULATION S GLOBABL SECURITY MAY ONLY BE SOLD, PLEDGED OR
TRANSFERRED THROUGH EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR
SYSTEM OR CLEARSTREAM BANKING, SOCIETE ANONYME AND ONLY (I) TO THE COMPANY, (II)
IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED
STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, OR
(IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH OF CASE (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY
REGULATION S GLOBABL SECURITY WILL NOTIFY ANY PURCHASER OF THIS SECURITY OF THE
RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATIONS S GLOBAL SECURITY MAY BE
EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL SECURITY ONLY IF (1) SUCH EXCHANGE
OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH RULE 144A,
AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE
EFFECT THAT THE REGULATION S GLOBAL SECURITY BEING TRANSFERRED TO A PERSON (A)
WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A (B) PURCHASING FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTEREST IN A RULE 144A GLOBAL SECURITY MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL
SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A
WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT
THAT IF SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF
REGULATION S OR RULE 144 (IF AVAILABLE) AND THAT, IF SUCH TRANSFER OCCURS PRIOR
TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, THE INTEREST
TRANSFERRED WILL BE HELD IMMEDIATELY THEREAFTER THROUGH EUROCLEAR BANK S.A./N.A.
OR CLEARSTREAM BANKING SOCIETE ANONYME.
[Certificated Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
NO. ____ CUSIP NO. _________
SOUTHERN POWER COMPANY
4.875% SENIOR NOTE SERIES [C/D]
DUE JULY 15, 2015
Principal Amount: $575,000,000
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: July 8, 2003
Stated Maturity: July 15, 2015
Interest Payment Dates: January 15 and July 15
Interest Rate: 4.875% per annum
Authorized Denomination: $100,000 and integrals of $1,000 in excess thereof
Southern Power Company, a Delaware corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_____________________________________, or registered assigns, the principal sum
of _________ DOLLARS ($__________) [or such other amount as is indicated on
Schedule A hereto]2 on the Stated Maturity shown above (or upon earlier
redemption), 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, semi-annually in arrears on each Interest Payment
Date as specified above, commencing on January 15, 2004 and on the Stated
Maturity (or upon earlier redemption) 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 or on a Redemption
Date) 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 Stated Maturity or on any Redemption Date
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, 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 or
earlier redemption of this Note shall be made upon surrender of this Note at the
Corporate Trust Office of the Trustee, 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 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.
2 Insert in the Rule 144A Global Security and the Regulation S Global
Security only.
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.
Dated: July __, 2003.
SOUTHERN POWER COMPANY
By:
Name:
Title:
Attest:
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
(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 June 1, 2002, as supplemented (the "Indenture"),
among the Company and The Bank of New York, Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the
Company, 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 4.875% Senior
Notes Series [C/D] due July 15, 2015 initially issued in the aggregate principal
amount of $575,000,000. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
This Note will be redeemable by the Company in whole or in part at any
time upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to 100% of the principal amount of this Note being redeemed plus accrued
interest on the principal amount of this Note, if any, to the redemption date,
plus the Make-Whole Premium.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion will be issued in the name or names of the
Holders thereof upon the surrender thereof.
This Note 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 rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company 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 Trustee and any agent of the Company 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
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 $100,000 and integral multiples of $1,000 in excess
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.
In connection with any transfer of any of the Series C Notes evidenced
by this certificate, the undersigned confirms that such Series C Notes are
being:
CHECK ONE BOX BELOW
(1) exchanged for the undersigned's own account
without transfer; or
(2) transferred to a person whom the undersigned
reasonably believes to be a "qualified institutional
buyer" as defined in Rule 144A under the Securities
Act of 1933 who is purchasing such Series C Notes for
such buyer's own account or the account of a
"qualified institutional buyer" in a transaction
meeting the requirements of Rule 144A under the
Securities Act of 1933 and any applicable securities
laws of any state of the United States or any other
jurisdiction; or
(3) exchanged or transferred pursuant to and in
compliance with Rule 903 or 904 of Regulation S under
the Securities Act of 1933; or
(4) exchanged or transferred to an institutional
"accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act pursuant to Rule 144A (and based upon
an opinion of counsel if the Company or the Trustee
so requests) and, to the knowledge of the transferor
of the Series C Notes, such institutional accredited
investor to whom such Note is to be transferred is
not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company; or
(5) transferred pursuant to another available
exemption from the registration requirements of the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Series C Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3), (4) or (5) is checked, the Company may require, prior to registering any
such transfer of the Series C Notes, such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act; provided, further, that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
Signature
- ---------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Series C Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date:
------------------------------
NOTICE: To be executed by an executive officer.
SCHEDULE A
The initial aggregate principal amount of Series C Notes evidenced by
the Certificate to which this Schedule is attached is $___________. The
notations on the following table evidence decreases and increases in the
aggregate principal amount of Series C Notes evidenced by such Certificate.
Principal Amount of
Series C Notes Remaining
Decrease in Principal Amount Increase in Principal After Such Decrease or Notation by
of Series C Notes Amount of Series C Notes Increase Security Registrar
- -------------------------------------------------------------------------------
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
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
In connection with any transfer of any of the Series C Notes evidenced
by this certificate, the undersigned confirms that such Series C Notes are
being:
CHECK ONE BOX BELOW
(1) exchanged for the undersigned's own account
without transfer; or
(2) transferred to a person whom the undersigned
reasonably believes to be a "qualified institutional
buyer" as defined in Rule 144A under the Securities
Act of 1933 who is purchasing such Series C Notes for
such buyer's own account or the account of a
"qualified institutional buyer" in a transaction
meeting the requirements of Rule 144A under the
Securities Act of 1933 and any applicable securities
laws of any state of the United States or any other
jurisdiction; or
(3) exchanged or transferred pursuant to and in
compliance with Rule 903 or 904 of
Regulation S under the Securities Act of 1933; or
(4) exchanged or transferred to an institutional
"accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act pursuant to Rule 144A (and based upon
an opinion of counsel if the Company or the Trustee
so requests) and, to the knowledge of the transferor
of the Series C Notes, such institutional accredited
investor to whom such Note is to be transferred is
not an "affiliate" (as defined in Rule 144 under the
Securities Act) of the Company; or
(5) transferred pursuant to another available
exemption from the registration requirements of the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Series C Notes evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3) or (4) is checked, the Company may require, prior to registering any such
transfer of the Series C Notes, such legal opinions, certifications and other
information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act; provided, further, that if
box (2) is checked, the transferee must also certify that it is a qualified
institutional buyer as defined in Rule 144A.
Signature
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Series C Note for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date:
------------------------------
NOTICE: To be executed by an executive officer.
EXHIBIT D
FORM OF LETTER TO BE DELIVERED BY
INSTITUTIONAL ACCREDITED INVESTORS
Southern Power Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Citigroup Global Markets Inc.
Lehman Brothers Inc.
as representatives of the several initial
purchasers (collectively, the "Initial Purchasers")
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
and
Citigroup Global Markets Inc.
390 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
We are delivering this letter in connection with an offering of 4.875%
Senior Notes, Series C due July 15, 2015 (the "Notes") issued by Southern Power
Company (the "Company"). We confirm that we understand that the Notes have not
been and will not be registered under the Securities Act of 1933, as amended
(the "Securities Act"), or any other applicable securities law and may not be
offered, sold or otherwise transferred unless registered pursuant to, or exempt
from registration under, the Securities Act or any other applicable securities
law. We also represent and agree as follows:
(i) We are an "institutional accredited investor" within the meaning of
Rule 501(a)(1), (2) or (3) under the Securities Act or an entity in
which all of the equity owners are accredited investors within the
meaning of Rule 501(a)(1), (2) or (3) under the Securities Act (an
"Institutional Accredited Investor");
(ii) (A) any purchase of the Notes by us will be for our own account or for
the account of one or more other Institutional Accredited Investors or
as fiduciary for the account of one or more trusts, each which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion or (B) we are a "bank", within the meaning of Section
3(a)(2) of the Securities Act, or a "savings and loan association" or
other institution described in Section 3(a)(5)(A) of the Securities
Act that is acquiring the Notes as fiduciary for the account of one or
more institutions for which we exercise sole investment discretion;
(iii) in the event that we purchase any of the Notes, we will acquire Notes
having a minimum purchase price of not less than $100,000 for our own
account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Notes, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment in
the Notes;
(v) we are not acquiring the Notes with a view to distribution thereof or
with any present intention of offering or selling any of the Notes,
except inside the United States in accordance with Rule 144A under the
Securities Act or outside the United States in accordance with
Regulation S under the Securities Act, as provided below; provided
that the disposition of our property and the property of any accounts
for which we are acting as fiduciary shall remain at all times within
our control; and
(vi) we acknowledge that (A) we have been afforded an opportunity to
request from the Company and to review, and we have received, all
additional information considered by us to be necessary to verify the
accuracy of the information contained in the offering memorandum
relating to the Notes dated July 1, 2003 (the "Offering Memorandum");
(B) we have not relied on any Initial Purchaser or any person
affiliated with any Initial Purchaser in connection with our
investigation of the accuracy of the information contained in the
Offering Memorandum or our investment decision; and (C) no person has
been authorized to give any information or to make any representation
concerning the Notes other than those contained in the Offering
Memorandum and, if given or made, such other information or
representation should not be relied upon as having been authorized by
any Initial Purchaser.
We understand that the Notes are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the Notes have not been and will not be registered under
the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Notes, that if in the future we decide to
resell, pledge or otherwise transfer such Notes, such Notes may be offered,
resold, pledged or otherwise transferred only (i) in the United States to a
person who we reasonably believe is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (ii) outside the United States in a transaction in
accordance with Rule 904 under the Securities Act, (iii) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available), (iv) to an Institutional Accredited Investor that,
prior to such transfer, furnishes to you and the Company, a signed letter
substantially in the form of this letter or (v) pursuant to an effective
registration statement under the Securities Act, in each of cases described in
(i) through (v), in accordance with any applicable securities laws of any State
of the United States or any other applicable jurisdiction. We understand that
the registrar and transfer agent for the Notes will not be required to accept
for registration of transfer any Notes acquired by us, except upon presentation
of evidence satisfactory to the Company and the transfer agent that the
foregoing restrictions on transfer have been complied with. We further
understand that any Notes acquired by us will be in definitive, certificated
form and that such certificated Notes will bear a legend reflecting the
substance of this paragraph.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgements and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date:____________________________ __________________________________
(Name of Purchaser)
By:________________________________
Name:
Title:
Address: