Exhibit 4.2
GEORGIA POWER COMPANY
TO
JPMORGAN CHASE BANK,
TRUSTEE
TWENTY-THIRD SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 20, 2004
SERIES W 6% SENIOR NOTES
DUE AUGUST 15, 2044
TABLE OF CONTENTS1
PAGE
ARTICLE 1...............................................................1
Series W Senior Notes...............................................1
SECTION 101. Establishment.........................................1
SECTION 102. Definitions...........................................2
SECTION 103. Payment of Principal and Interest.....................3
SECTION 104. Denominations.........................................4
SECTION 105. Global Security.......................................4
SECTION 106. Transfer..............................................5
SECTION 107. Redemption............................................5
SECTION 108. Mandatory Redemption..................................5
ARTICLE 2...............................................................6
Special Insurance Provisions........................................6
SECTION 201. Supplemental Indentures...............................6
SECTION 202. Events of Default and Remedies........................6
SECTION 203. Insurance Policy Payment Procedures...................7
SECTION 203. Application of Term "Outstanding" to Series W
Notes......................................................8
SECTION 204. Concerning the Special Insurance Provisions...........8
ARTICLE 3...............................................................8
Miscellaneous Provisions............................................8
SECTION 301. Recitals by Company...................................8
SECTION 302. Ratification and Incorporation of Original
Indenture..................................................8
SECTION 303. Executed in Counterparts..............................8
1This 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 TWENTY-THIRD SUPPLEMENTAL INDENTURE is made as of the 20th day of
August, 2004, by and between GEORGIA POWER COMPANY, a Georgia corporation, 241
Ralph McGill Boulevard, N.E., Atlanta, Georgia 30308-3374 (the "Company"), and
JPMORGAN CHASE BANK, a New York banking corporation, 4 New York Plaza, New York,
New York 10004 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Note Indenture,
dated as of January 1, 1998 (the "Original Indenture"), with JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as heretofore supplemented;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as heretofore supplemented and as further
supplemented by this Twenty-Third Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Senior Notes may at
any time be established by the Board of Directors of the Company in accordance
with the provisions of the Original Indenture and the terms of such series may
be described by a supplemental indenture executed by the Company and the
Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of
Senior Notes;
WHEREAS, additional Senior Notes of other series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Indenture as at
the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery
of this Twenty-Third Supplemental Indenture and to make it a valid and binding
obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Series W Senior Notes
SECTION 101. Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
Series W 6% Senior Notes due August 15, 2044 (the "Series W Notes").
There are to be authenticated and delivered $125,000,000 principal amount
of Series W Notes, and such principal amount of the Series W Notes may be
increased from time to time pursuant to Section 301 of the Original Indenture.
All Series W 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 issuance of
additional Series W Notes. Any such additional Series W Notes will have the same
interest rate, maturity and other terms, including the benefit of an insurance
policy, as those initially issued. No Series W Notes shall be authenticated and
delivered in excess of the principal amount as so increased except as provided
by Sections 203, 303, 304, 907 or 1107 of the Original Indenture. The Series W
Notes shall be issued in definitive fully registered form.
The Series W Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Series W Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series W
Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series W 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 102. Definitions. The following defined terms used herein shall,
unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Due for Payment" means, when referring to the principal of a Series W
Note, the Stated Maturity and does not refer to any earlier date on which
payment is due by reason of call for redemption, acceleration or other
advancement of maturity and means, when referring to interest on a Series W
Note, the stated date for payment in interest.
"Fiscal Agent" means U.S. Bank Trust National Association, New York, New
York, or its successor.
"Insurance Agreement" means that certain Insurance Agreement, dated as of
August 20, 2004, by and between the Company and the Insurer.
"Insurer" means Financial Guaranty Insurance Company, a New York stock
insurance company, or any successor thereto.
"Interest Payment Dates" means February 15, May 15, August 15 and November
15 of each year, commencing November 15, 2004.
"Mandatory Redemption Event" means the Company's failure to comply with (i)
Section 1.02 of the Insurance Agreement, the continuance of such failure for a
period in excess of 10 days after receipt by the Company of written notice
thereof from the Insurer and the receipt by the Trustee of notice thereof in
accordance with Section 108 hereof; or (ii) Section 3.01 or Section 3.02 of the
Insurance Agreement, the continuance of such failure for a period in excess of
30 days after receipt by the Company of written notice thereof from the Insurer
and the receipt by the Trustee of notice thereof in accordance with Section 108
hereof.
"Nonpayment" means the failure by the Company to provide sufficient funds
to the Paying Agent for payment in full of all principal or interest on the
Series W Notes Due for Payment and includes any payment of principal or interest
(as applicable) made to a Holder of the Series W Notes by or on behalf of the
Company which has been recovered from such Holder pursuant to the United States
Bankruptcy Code by a trustee in bankruptcy in accordance with a final,
nonappealable order of a court having competent jurisdiction.
"Original Issue Date" means August 20, 2004.
"Policy" means the surety bond issued by the Insurer that guarantees
payment of principal of and interest on the Series W Notes Due for Payment.
"Regular Record Date" means, with respect to each Interest Payment Date,
the close of business on the 15th calendar day preceding such Interest Payment
Date (whether or not a Business Day).
"Stated Maturity" means August 15, 2044.
SECTION 103. Payment of Principal and Interest. The principal of the Series
W Notes shall be due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Series W Notes shall bear interest at the rate of 6% per
annum until paid or duly provided for. Interest shall be paid quarterly in
arrears on each Interest Payment Date to the Person in whose name the Series W
Notes are registered on the Regular Record Date for such Interest Payment Date,
provided that interest payable at the Stated Maturity of principal or on a
Redemption Date as provided herein will be paid to the Person to whom principal
is payable. Any such interest that is not so punctually paid or duly provided
for will forthwith cease to be payable to the Holders on such Regular Record
Date and may either be paid to the Person or Persons in whose name the Series W
Notes are registered at the close of business on a Special Record Date for the
payment of such defaulted interest to be fixed by the Trustee, notice whereof
shall be given to Holders of the Series W Notes not less than ten (10) days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange, if
any, on which the Series W Notes shall be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series W Notes will include interest accrued to
but excluding the respective Interest Payment Dates. Interest payments for the
Series W Notes shall be computed and paid on the basis of a 360-day year of
twelve 30-day months. In the event that any date on which interest is payable on
the Series W Notes is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), with the
same force and effect as if made on the date the payment was originally payable.
Payment of the principal and interest due at the Stated Maturity or earlier
redemption of the Series W Notes shall be made upon surrender of the Series W
Notes at the Corporate Trust Office of the Trustee. The principal of and
interest on the Series W Notes shall be paid in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payments of interest (including interest on any
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer or other electronic transfer at such place and to such account
at a banking institution in the United States as may be designated in writing to
the Trustee at least sixteen (16) days prior to the date for payment by the
Person entitled thereto. Regardless of any other arrangement agreed to between
the Company and the Paying Agent, the Company shall deposit with the Paying
Agent sufficient funds for the principal payment due at the Stated Maturity no
later than one Business Day prior to the Stated Maturity.
SECTION 104. Denominations. The Series W Notes may be issued in
denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series W Notes will be issued in the
form of one or more Global Securities registered in the name of the Depositary
(which shall be The Depository Trust Company) or its nominee. Except under the
limited circumstances described below, Series W Notes represented by one or more
Global Securities will not be exchangeable for, and will not otherwise be
issuable as, Series W Notes in definitive form. The Global Securities described
above may not be transferred except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series W Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
Subject to the procedures of the Depositary, a Global Security shall be
exchangeable for Series W Notes registered in the names of persons other than
the Depositary or its nominee only if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global
Security and no successor Depositary shall have been appointed by the Company,
or if at any time the Depositary ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, at a time when the Depositary
is required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Company, in each case within 90 days
after the Company receives such notice or becomes aware of such cessation, (ii)
the Company in its sole discretion determines that such Global Security shall be
so exchangeable, or (iii) there shall have occurred an Event of Default with
respect to the Series W Notes. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Series W Notes registered in
such names as the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer or
exchange of Series W 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.
The Company shall not be required (a) to issue, transfer or exchange any
Series W Notes, except to the Insurer, during a period beginning at the opening
of business fifteen (15) days before the day of the mailing of a notice pursuant
to Section 1104 of the Original Indenture identifying the serial numbers of the
Series W Notes to be called for redemption, and ending at the close of business
on the day of the mailing, or (b) to transfer or exchange any Series W Notes
theretofore selected for redemption in whole or in part, except the unredeemed
portion of any Series W Note redeemed in part.
SECTION 107. Redemption. The Series W Notes shall be subject to redemption
at the option of the Company, in whole or in part, without premium or penalty,
at any time or from time to time on or after August 20, 2009, at a Redemption
Price equal to 100% of the principal amount to be redeemed plus accrued but
unpaid interest to the Redemption Date.
In the event of redemption of the Series W Notes in part only, a new Series
W Note or Notes for the unredeemed portion will be issued in the name or names
of the Holders thereof upon the surrender thereof.
The Series W Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series W Notes shall, with respect
to the principal thereof, be divisible by $25.
SECTION 108. Mandatory Redemption. Upon the occurrence of a Mandatory
Redemption Event, the Company shall redeem the Series W Notes, in whole but not
in part, prior to the Stated Maturity upon not less than 30 nor more than 60
days' notice at a Redemption Price equal to 100% of the principal amount plus
accrued and unpaid interest to the Redemption Date. A Mandatory Redemption Event
will be deemed to have occurred at the time that the Trustee receives written
notice from the Insurer of the occurrence of a Mandatory Redemption Event and
such notice shall constitute the notice required by Section 1102 of the Original
Indenture and shall not be required to be evidenced by a Board Resolution.
Subject to the notice requirements set forth herein, the Company shall redeem
the Series W Notes (i) on August 20, 2009 if the Mandatory Redemption Event
occurs on or prior to June 21, 2009 or (ii) if the Mandatory Redemption Event
occurs after June 21, 2009, within 60 days after the occurrence of the Mandatory
Redemption Event, but in no event earlier than August 20, 2009. Any notice of
redemption required to be given by the Trustee in connection with a redemption
required by this Section 108 need not be given earlier than 15 days after the
date the Trustee receives notice of a Mandatory Redemption Event pursuant to
this Section 108.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
ARTICLE 2
Special Insurance Provisions
SECTION 201. Supplemental Indentures. The consent of the Insurer shall be
required with respect to any indenture or indentures supplemental to the
Original Indenture requiring the consent of the Holders of the Series W Notes
pursuant to Section 902 of the Original Indenture. The Company shall deliver to
any rating agency rating the Series W Notes notice of each such indenture or
indentures supplemental to the Original Indenture and a copy thereof at least 15
days in advance of its execution and provide the Insurer with a full transcript
of all proceedings related to the execution of any such indenture or indentures
supplemental to the Original Indenture.
SECTION 202. Events of Default and Remedies. Subject to Section 107 of the
Original Indenture and to the Trust Indenture Act, including, without
limitation, Sections 316(a)(1) and 317(a) thereof, if an Event of Default with
respect to the Series W Notes occurs and is continuing, the Insurer shall be
entitled to control and direct the enforcement of all rights and remedies
granted to the Holders of the Series W Notes or the Trustee for the benefit of
the Holders of the Series W Notes under the Indenture, including, without
limitation, (i) the right to accelerate the principal of the Series W Notes as
provided in Section 502 of the Original Indenture, and (ii) the right to annul
any such declaration of acceleration, and the Insurer shall also be entitled to
approve any waiver of an Event of Default with respect to the Series W Notes,
the obligation of the Trustee to comply with any such direction to be subject to
compliance with the conditions set forth in Sections 512 and 603(e) of the
Original Indenture (as if references in those Sections to Holders were
references to the Insurer) and the protections provided to the Trustee by
Section 601(c)(3) of the Original Indenture shall be applicable with respect to
any direction from the Insurer given pursuant hereto (as if references in said
Section to Holders were references to the Insurer). The Insurer shall be
entitled to notify the Trustee and the Company of a default referred to in
Section 501(4) of the Original Indenture relating to the Series W Notes as if it
were the Holder of at least 25% in principal amount of the Outstanding Series W
Notes, provided that such notice shall otherwise conform to the requirements of
said Section 501(4).
The Trustee and the Company shall give the Insurer immediate notice of any
default in the payment of the principal of or interest on the Series W Notes
(the obligation of the Trustee to give such notice to be deemed satisfied if the
Paying Agent shall have provided the notice required by Section 203(a) hereof).
The Trustee and the Company shall give the Insurer notice of any event which
with the giving of notice or the passage of time would constitute an Event of
Default with respect to the Series W Notes within 30 days of the Trustee's or
the Company's knowledge thereof, provided that the Trustee shall not be deemed
to have knowledge thereof unless a Responsible Officer of the Trustee assigned
to its Corporate Trust Office shall have actual knowledge thereof or unless the
Trustee shall have received written notice thereof from the Company or the
Holders of at least 25% in principal amount of the Series W Notes then
Outstanding.
No effect shall be given to payments made under the Policy in determining
whether an Event of Default with respect to the Series W Notes has occurred or
is continuing.
SECTION 203. Insurance Policy Payment Procedures. (a) If the Paying Agent
does not have sufficient funds for any payment of principal or interest Due for
Payment by reason of the Company's Nonpayment, then any Holder of the Series W
Notes or the Paying Agent will notify the Insurer and the Fiscal Agent named
herein or any successor thereto the identity of which shall have been evidenced
to the Trustee by written notice from the Insurer by telephonic or telegraphic
notice, subsequently confirmed in writing, or written notice by registered or
certified mail. The Insurer shall make such payment to the Fiscal Agent on the
date on which such principal or interest is Due for Payment or within one
Business Day (as defined in the Policy) after receipt of the notice of
Nonpayment, whichever is later, and the Fiscal Agent shall make such payments in
accordance with the Policy. In addition to the foregoing:
(i) The Paying Agent shall provide the Insurer and the Fiscal Agent with a
list of the Holders entitled to receive principal or interest payments from the
Insurer under the terms of the Policy and shall make arrangements for the
Insurer and the Fiscal Agent to disburse such amount Due for Payment on any
Series W Note to the Holder or the Paying Agent.
(ii) The Paying Agent shall, at the same time that it provides the Insurer
with the list of Holders, notify the Holders entitled to receive payment of
principal or interest on the Series W Notes from the Insurer (A) as to the fact
of such entitlement, (B) that the Insurer will remit to them or the Paying Agent
all or part of the interest payments Due for Payment, (C) that, except as
provided in paragraph (b) below, in the event that the Holder is entitled to
receive full payment of principal from the Insurer, such Holder must tender the
Series W Note to the Insurer or the Paying Agent with an instrument of transfer
executed in the name of the Insurer and (D) that, except as provided in
paragraph (b) below, in the event that such Holder is entitled to receive
partial payment of principal from the Insurer, such Holder must tender its
Series W Note for payment to the Paying Agent which shall note on such Series W
Note the portion of principal paid by the Paying Agent, and then, with an
acceptable form of assignment executed in the name of the Insurer, to the Fiscal
Agent which will then pay the unpaid portion of principal to the Holder subject
to the terms of the Policy.
(b) In the event that the Trustee has notice that any payment of principal
of or interest on a Series W Note has been recovered from a Holder pursuant to
the United States Bankruptcy Code by a trustee in bankruptcy in accordance with
the final, nonappealable order of a court having competent jurisdiction, the
Trustee shall notify the Insurer of such recovery in accordance with the notice
requirements of Section 203(a) hereof and notify all Holders that in the event
that any Holder's payment is so recovered, such Holder will be entitled to
payment from the Insurer to the extent of such recovery. The Paying Agent shall
furnish to the Insurer its records evidencing the payments of principal of and
interest on the Series W Notes which have been made by the Paying Agent and
subsequently recovered from the Holders, and the dates on which such payments
were made.
(c) The Insurer shall, to the extent it makes payment of principal of or
interest on the Series W Notes, become subrogated to the rights of the
recipients of such payments in accordance with the terms of the Policy and, to
evidence such subrogation, (i) in the case of subrogation as to claims for past
due interest, the Trustee shall note the Insurer's rights as subrogee on the
Security Register maintained by the Trustee upon receipt from the Insurer of
proof of the payment of interest thereon to the Holder of such Series W Notes
and (ii) in the case of subrogation as to claims for past due principal, the
Trustee shall note the Insurer's rights as subrogee on the Security Register for
the Series W Notes maintained by the Trustee, as Security Registrar, upon
receipt of proof of the payment of the principal thereof to the Holders of such
Series W Notes. Notwithstanding anything in this Twenty-Third Supplemental
Indenture or the Series W Notes to the contrary, the Paying Agent shall make
payment of such past due interest and past due principal directly to the Insurer
to the extent that the Insurer is a subrogee with respect thereto.
SECTION 204. Application of Term "Outstanding" to Series W Notes. In the
event that the principal and/or interest due on the Series W Notes shall be paid
by the Insurer pursuant to the Policy, the Series W Notes shall remain
Outstanding for all purposes of the Indenture, shall not be considered defeased
or otherwise satisfied and shall not be considered paid by the Company, and the
Indenture and all covenants, agreements and other obligations of the Company to
the Holders of the Series W Notes shall continue to exist and such covenants,
agreements and other obligations shall run to the benefit of the Insurer, and
the Insurer shall be subrogated to the rights of such Holders to the extent of
each such payment.
SECTION 205. Concerning the Special Insurance Provisions. The provisions of
this Article 2 shall apply notwithstanding anything in the Indenture to the
contrary, but only so long as the Policy shall be in full force and effect and
the Insurer is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Twenty-Third
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series W Notes and of this Twenty-Third Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 302. Ratification and Incorporation of Original Indenture. As
heretofore supplemented and as supplemented hereby, the Original Indenture is in
all respects ratified and confirmed, and the Original Indenture as heretofore
supplemented and as supplemented by this Twenty-Third Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Twenty-Third Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
ATTEST: GEORGIA POWER COMPANY
By:/s/Wayne Boston By:/s/C.B. Harreld
Wayne Boston C.B. Harreld
Assistant Secretary Executive Vice President, Treasurer, Chief
Financial Officer and Assistant Secretary
ATTEST: JPMORGAN CHASE BANK, as Trustee
By: /s/Nicholas Sberlati By: /s/Carol Ng
Nicholas Sberlati Carol Ng
Trust Officer Vice President
EXHIBIT A
FORM OF SERIES W NOTE
NO. ____ CUSIP NO. 373334 49 9
GEORGIA POWER COMPANY
SERIES W 6% SENIOR NOTE
DUE AUGUST 15, 2044
Principal Amount: $____________
Regular Record Date: 15th calendar day prior to
Interest Payment Date (whether
or not a Business Day)
Original Issue Date: August 20, 2004
Stated Maturity: August 15, 2044
Interest Payment Dates: February 15, May 15, August 15 and
November 15
Interest Rate: 6% per annum
Authorized Denominations: $25 or any integral multiple
thereof
Initial Redemption Date: August 20, 2009
Georgia Power Company, a Georgia corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of
___________________________DOLLARS ($___________) on the Stated Maturity shown
above (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, quarterly in arrears on
each Interest Payment Date as specified above, commencing on November 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 (and without any interest
or other payment in respect of any such delay), with the same force and effect
as if made on the date the payment was originally payable. A "Business Day"
shall mean any day other than a Saturday or a Sunday or a day on which banking
institutions in New York City are authorized or required by law or executive
order to remain closed or a day on which the Corporate Trust Office of the
Trustee is closed for business.
Payment of the principal of and interest due at the Stated Maturity or
earlier redemption of the Series W Notes shall be made upon surrender of the
Series W Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series W Notes shall be paid in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payment of interest (including interest on an
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer or other electronic transfer at such place and to such account
at a banking institution in the United States as may be designated in writing to
the Trustee at least 16 days prior to the date for payment by the Person
entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
GEORGIA POWER COMPANY
By:
------------------------
Name:
----------------------
Title:
---------------------
Attest:
{Seal of GEORGIA POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------------------
Authorized Officer
(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 January 1, 1998, as supplemented (the "Indenture"),
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures incidental
thereto reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes issued thereunder and of the terms upon
which said Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof as Series W 6% Senior Notes due
August 15, 2044 (the "Series W Notes") which is unlimited in aggregate principal
amount. Capitalized terms used herein for which no definition is provided herein
shall have the meanings set forth in the Indenture.
The Series W Notes (i) shall, at any time or, from time to time, on or
after August 20, 2009 upon not less than 30 nor more than 60 days' notice to the
holders thereof, be subject to optional redemption at the option of the Company,
in whole or in part, at a Redemption Price equal to 100% of the principal amount
of the Series W Notes to be redeemed plus accrued and unpaid interest on the
Series W Notes to the Redemption Date and (ii) shall be subject to mandatory
redemption, upon not less than 30 nor more than 60 days' notice, in whole but
not in part, at a Redemption Price equal to 100% of the principal amount of the
Series W Notes to be redeemed plus accrued and unpaid interest to the Redemption
Date upon the occurrence of the Company's failure to comply with (x) Section
1.02 of the Insurance Agreement, dated as of August 20, 2004 (the "Insurance
Agreement"), by and between the Company and Financial Guaranty Insurance Company
(the "Insurer"), the continuance of such failure for a period in excess of 10
days after receipt by the Company of written notice thereof from the Insurer and
the receipt by the Trustee of notice thereof, or (y) Section 3.01 or Section
3.02 of the Insurance Agreement, the continuance of such failure for a period in
excess of 30 days after receipt by the Company of written notice thereof from
the Insurer and the receipt by the Trustee of notice thereof (each, a "Mandatory
Redemption Event"). Subject to the notice requirements of the Indenture, the
Company shall redeem the Series W Notes (i) on August 20, 2009 if the Mandatory
Redemption Event occurs on or prior to June 21, 2009 or (ii) if the Mandatory
Redemption Event occurs after June 21, 2009, within 60 days after the occurrence
of the Mandatory Redemption Event, but in no event earlier than August 20, 2009.
The Series W Notes will not have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the 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 rates, 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 $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
STATEMENT OF INSURANCE
Financial Guaranty Insurance Company (the "Insurer") has issued a
surety bond containing the following provisions with respect to the Series W
Notes, such surety bond being on file at the principal corporate trust office of
Trustee, as paying agent for the Series W Notes (the "Paying Agent"):
The Insurer hereby unconditionally and irrevocably agrees to pay for
disbursement to the Holders that portion of the principal of and interest on the
Series W Notes which is then Due for Payment and which the Company shall have
failed to provide. Due for Payment means, with respect to principal, the stated
maturity thereof, and does not refer to any earlier date on which the payment of
principal of the Series W Notes is due by reason of call for redemption,
acceleration or other advancement of maturity and means, with respect to
interest, the stated date for payment of such interest.
Upon receipt of telephonic or telegraphic notice, subsequently
confirmed in writing, or written notice by registered or certified mail, from a
Holder or the Paying Agent to the Insurer that the required payment of principal
or interest has not been made by the Company to the Paying Agent, the Insurer on
the due date of such payment or within one Business Day (as defined in the
surety bond) after receipt of notice of such nonpayment, whichever is later,
will make a deposit of funds, in an account with U.S. Bank Trust National
Association, or its successor as its agent (the "Fiscal Agent"), sufficient to
make the portion of such payment not paid by the Company. Upon presentation to
the Fiscal Agent of evidence satisfactory to it of the Holder's right to receive
such payment and any appropriate instruments of assignment required to vest all
of such Holder's right to such payment in the Insurer, the Fiscal Agent will
disburse such amount to the Holder.
As used herein the term "Holder" means the person other than the
Company or the borrower(s) of note proceeds who at the time of nonpayment of a
Series W Note is entitled under the terms of such Series W Note to payment
thereof.
The surety bond is non-cancellable for any reason.
Financial Guaranty Insurance Company
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
-------------------- -------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular without
alteration or enlargement, or any change whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
------------------------
Authorized Officer