SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) October 7, 1998
ALABAMA POWER COMPANY
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(Exact name of registrant as specified in its charter)
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Alabama 1-3164 63-0004250
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
600 North 18th Street, Birmingham, Alabama 35291
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (205) 257-1000
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N/A
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(Former name or former address, if changed since last
report.)
<PAGE>
Item 5. Other Events.
On October 7, 1998, Alabama Power Company (the "Company") entered into
a Purchase Contract covering the issue and sale by the Company of $160,000,000
aggregate principal amount of its Series G 5 3/8% Senior Notes due October 1,
2008 (the "Series G Senior Notes"). Said Notes were registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to the shelf
registration statement (Registration Statement Nos. 333-53299, 333-53299-01,
333-53299-02 and 333-53299-03) of the Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Form of Proposal for the purchase of $160,000,000
aggregate principal amount of Series G 5 3/8% Senior
Notes due October 1, 2008, dated October 7, 1998,
submitted by Credit Suisse First Boston Corporation,
with Purchase Contract attached thereto.
4.2 Seventh Supplemental Indenture to Senior Note
Indenture dated as of October 15, 1998, providing for
the issuance of the Series G Senior Notes.
4.7 Form of Series G Senior Note (included in Exhibit 4.2
above).
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: October 13, 1998 ALABAMA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
FORM OF PROPOSAL
For the Purchase of
ALABAMA POWER COMPANY
$160,000,000
SERIES G ___% SENIOR NOTES DUE OCTOBER 1, 2008
Dated: October 7, 1998
ALABAMA POWER COMPANY
c/o Southern Company Services, Inc.
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Ladies and Gentlemen:
Referring to the terms and conditions dated October 2, 1998 (the "Terms
and Conditions"), relating to proposals for the purchase of Series G ___% Senior
Notes due October 1, 2008 (the "Series G Senior Notes") of Alabama Power Company
(the "Company"), the persons, firms and corporations named in Exhibit A attached
hereto (the "Bidders") have submitted and confirm herewith the following
proposal for the purchase of $160,000,000 aggregate principal amount of the
Series G Senior Notes (the "Designated Principal Amount"):
1. The interest rate of the Series G Senior Notes shall be
5-3/8% per annum.
2. The price to be paid to the Company for the Series G Senior
Notes shall be 99.063%* of the Designated Principal Amount thereof,
each of the Bidders hereby offering, severally and not jointly, to
purchase from the Company, at said price and upon the terms and
conditions set forth in the form of purchase contract attached hereto
as Exhibit B (the "Purchase Contract"), the principal amount of Series
G Senior Notes set forth opposite its name in Exhibit A attached
hereto, or the principal amount of Series G Senior Notes to be set
forth opposite its name in Exhibit A attached hereto as provided in
Section 3 of the Terms and Conditions, which together aggregate the
Designated Principal Amount of the Series G Senior Notes. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth
in the Terms and Conditions that, subject to the provisions thereof,
the Company will accept the proposal which results in the lowest
"annual cost of money" to it for the Series G Senior Notes, each of the
Bidders agrees (a) that the offer of such Bidder included in this
proposal shall be irrevocable until three hours after the time fixed
for the submission of proposals, unless sooner rejected by the Company;
(b) that, if this proposal shall be accepted in writing by the Company,
such Bidder, either in person or by the Representative(s) on its
behalf, will forthwith furnish to the Company in writing the
information referred to in Section 8 of the Terms and Conditions; and
(c) that, if this proposal shall be so accepted by the Company, the
Purchase Contract shall thereupon become effective without any separate
execution thereof and shall constitute the agreement between the
Company and the Bidders and, upon performance by the Bidders, and the
Representative(s), of their obligations under Sections 3, 4 and 8 of
the Terms and Conditions, all rights of the Company and of the Bidders
shall be determined solely in accordance with the terms thereof,
subject, however, to such modifications therein (including Exhibit A to
the Form of Proposal) as may be necessary and as are contemplated by
the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company
in its entirety within three hours after the time fixed for the
submission thereof.
5. This proposal may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in
respect of the Series G Senior Notes furnished by the Company to the Bidders
pursuant to the last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
Credit Suisse First Boston Corporation
Name(s) of Representative(s)
By:
Title:
On behalf of and as
Representative(s) of the
persons, firms and
corporations named in
Exhibit A hereto.
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Accepted:
ALABAMA POWER COMPANY
By:
Title:
* May not be less than 98.75%
<PAGE>
EXHIBIT A
The names of the Bidders and the respective principal amounts of the
Series G Senior Notes which they severally offer to purchase are as follows:
Name Principal Amount
Credit Suisse First Boston $80,000,000
Chase Securities Inc. $80,000,000
Total $160,000,000
<PAGE>
EXHIBIT B
ALABAMA POWER COMPANY
PURCHASE CONTRACT
For Purchase of Series G Senior Notes of the Company
AGREEMENT made between Alabama Power Company, a corporation organized
and existing under the laws of the State of Alabama ("Company"), party of the
first part, and the several persons, firms and corporations (the "Purchasers")
named as Bidders in Exhibit A to the Form of Proposal to which this agreement is
attached as Exhibit B (the "Form of Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated
Principal Amount (as defined in the Form of Proposal) of its Series G Senior
Notes due October 1, 2008 (the "Series G Senior Notes"), to be issued under the
Senior Note Indenture dated as of December 1, 1997, as supplemented and as to be
supplemented (the "Indenture"), between the Company and The Chase Manhattan
Bank, as Trustee (the "Trustee"), and to bear interest at the rate per annum
specified in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing
the Form of Proposal (the "Representative") to execute the Form of Proposal on
behalf of the respective Purchasers and to act for the respective Purchasers in
the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement and prospectus relating to the Series G Senior Notes and certain other
securities, and such registration statement has become effective (such
registration statement, as it became effective, including the exhibits thereto
and all documents incorporated by reference in the prospectus at such time
pursuant to Item 12 of Form S-3, being herein called the "Registration
Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form
of Proposal (such prospectus, including all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of
the Form of Proposal, being herein called the "Bidding Prospectus") is to be
supplemented by a prospectus supplement (the "Prospectus Supplement"), including
certain information relating to the Purchasers, the price and the terms of
offering, and the interest rate, maturity date and redemption provisions of the
Series G Senior Notes (the Bidding Prospectus as supplemented by the Prospectus
Supplement being herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set forth,
the Company agrees to sell to the respective Purchasers, severally and not
jointly, and the respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 2 of the Form of
Proposal, the respective principal amounts of Series G Senior Notes set opposite
their names in Exhibit A to the Form of Proposal, which together aggregate the
Designated Principal Amount of the Series G Senior Notes.
2. Payment and Delivery: Payment for the Series G Senior Notes shall be
made to the Company or its order by wire transfer of federal funds, upon the
delivery of the Series G Senior Notes as hereinafter provided to the
Representative for the respective accounts of the Purchasers, against receipt
therefor signed by the Representative on behalf of itself and as agent for the
other Purchasers. Such payment and delivery shall be made at the offices of
Troutman Sanders LLP, 600 Peachtree Street, N.E., Suite 5200, Atlanta, Georgia
30308-2216 (or at such other place as may be agreed upon by the Representative
and the Company) at 10 a.m. New York time on the eighth day (which shall be a
full business day) after this agreement becomes effective (or at such other time
or on such other day as may be agreed upon by the Representative and the
Company), unless postponed in accordance with the provisions of Section 7
hereof. The time at which payment and delivery are to be made is herein
sometimes called the "time of purchase."
Delivery of definitive Series G Senior Notes is expected to be made in
fully registered form, registered in the name of Cede & Co. or other nominee of
The Depository Trust Company ("DTC"). One or more global Series G Senior Notes
certificates will be issued and deposited with DTC or its designee. Such
certificate or certificates will be made available for examination by the
Representative not later than 12:00 noon New York time on the last business day
prior to the time of purchase.
3. Conditions of Purchasers' Obligations: The several obligations of
the Purchasers hereunder are subject to the accuracy of the warranties and
representations on the part of the Company herein contained and to the following
other conditions:
(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Series G Senior Notes and the
legal opinions provided for in Sections 3(b)(1) and (2) hereof shall be
satisfactory in form and substance to Dewey Ballantine LLP, counsel to
the Purchasers, and such counsel shall have been furnished with such
documents and opinions as it may reasonably require to pass upon the
issuance and sale of the Series G Senior Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy of any
representations or warranties, or the fulfillment of any of the
conditions, herein contained.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine LLP:
(1) Opinion of Balch & Bingham LLP, of Birmingham,
Alabama, general counsel for the Company, substantially in the
form attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta,
Georgia, counsel to the Company, substantially in the form
attached hereto as Exhibit 2.
(3) Opinion of Dewey Ballantine LLP, of New York, New
York, substantially in the form attached hereto as Exhibit 3.
(4) Opinion of Cravath, Swaine & Moore, of New York,
New York, counsel to the Trustee, substantially in the form
attached hereto as Exhibit 4.
(5) Letter dated the date of payment and delivery
from Arthur Andersen LLP to the effect that: (A) they are
independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder; (B) in their
opinion, the financial statements and schedules audited by
them and incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (C)
they have performed certain limited procedures through a
specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of
the Company; (ii) performing the procedures specified by the
American Institute of Certified Public Accountants ("AICPA")
for a review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if any,
of the Company incorporated in the Prospectus and on the
latest available unaudited financial statements of the
Company, if any, as of a date subsequent to the date of those
incorporated in the Prospectus; and (iii) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding such unaudited
financial statements or any specified unaudited amounts
derived therefrom (it being understood that the foregoing
procedures do not constitute an audit performed in accordance
with generally accepted auditing standards and they would not
necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Arthur
Andersen LLP make no representations as to the sufficiency of
such procedures for the Purchasers' purposes), nothing came to
their attention that caused them to believe that: (1) any
material modifications should be made to the unaudited
condensed financial statements, if any incorporated in the
Prospectus, for them to be in conformity with generally
accepted accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis) set forth in the Prospectus do not agree with the
amounts set forth in or derived from the unaudited financial
statements for the same period or were not determined on a
basis substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in Registration Statement; (4) as of a specified
date not more than five business days prior to the date of
delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown in the latest
audited balance sheet incorporated in the Prospectus, except
in each case for changes or decreases which (i) the Prospectus
discloses have occurred or may occur, (ii) are occasioned by
the declaration of dividends, (iii) are occasioned by
draw-downs under existing pollution control financing
arrangements, (iv) are occasioned by draw-downs and regularly
scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to
satisfy mandatory or optional redemption provisions relating
thereto, or (vi) are disclosed in such letter; and (5) the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges
Plus Preferred Dividend Requirements (Pre-Income Tax Basis)
for any period subsequent to those set forth in (3) above,
which if available shall be set forth in such letter, do not
agree with the amounts set forth in or derived from the
unaudited financial statements for the same period or were not
determined on a basis substantially consistent with that of
the corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus.
(c) That no amendment or supplement (including the Prospectus
Supplement) to the registration statement or prospectus filed
subsequent to the time this agreement becomes effective (including any
filing made by the Company pursuant to Section 13 or 14 of the Exchange
Act) shall be unsatisfactory in form to Dewey Ballantine LLP or shall
contain information (other than with respect to an amendment or
supplement relating solely to the activity of any Purchaser or
Purchasers) which, in the reasonable judgment of the Representative,
shall materially impair the marketability of the Series G Senior Notes.
(d) That, at or before 8 p.m. New York time on the first
business day after the date this agreement becomes effective, or at
such later time and date as the Representative may from time to time
consent to in writing or by telephone, confirmed in writing, an
appropriate order or orders of the Alabama Public Service Commission
necessary to permit the issue and sale of the Series G Senior Notes
shall be in effect; and that, prior to the time of purchase, no stop
order with respect to the effectiveness of the Registration Statement
shall have been issued under the Securities Act by the Commission or
proceedings therefor initiated or threatened.
(e) That, prior to the time of purchase, there shall have been
no material adverse change in the business, properties or financial
condition of the Company (whether or not arising in the ordinary course
of business) from that set forth in or contemplated by the Prospectus,
and that the Company shall, at the time of purchase, have delivered to
the Representative a certificate to such effect of an executive officer
of the Company. For the purpose of this condition, the sale by the
Company of, or its failure to sell, any issue of other securities shall
not be deemed to be such a change.
(f) That the Company shall have performed such of its
obligations under this agreement as are to be performed at or prior to
the time of purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Purchasers herein contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule 424
under the Securities Act, to file the Prospectus Supplement with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by
the Commission for amendments to the Registration Statement or
Prospectus, including any amendment to any of the documents
incorporated therein by reference pursuant to Item 12 of Form S-3, or
of the issuance of a stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop order should be issued
by the Commission, to make every reasonable effort to obtain the
lifting or removal thereof as soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as
practicable on or after the date this agreement becomes effective, and
from time to time thereafter during such period of time (not exceeding
nine months) after this agreement becomes effective as the Purchasers
are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made
any supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required by law to
deliver a prospectus after the expiration of nine months after the date
this agreement becomes effective, to furnish to such Purchaser, upon
request of the Representative, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement
becomes effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such
Representative consists of two or more persons to one of such persons,
one copy, certified by an officer of the Company, of the registration
statement as initially filed with the Commission, all amendments
thereto and all documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 as of the time of purchase (in each
case, exclusive of exhibits), and to furnish to the Representative
sufficient plain copies of said registration statement and all
amendments thereto (exclusive of exhibits) for distribution of two
each, and all said documents incorporated therein as of the time of
purchase (exclusive of exhibits) for distribution of one each, to the
other Purchasers.
(f) In the event that the Purchasers constitute "underwriters"
within the meaning of Section 2(11) of the Securities Act, then, for
such period of time (not exceeding nine months) after the date this
agreement becomes effective as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing, at
its own expense, to the Purchasers and to dealers (whose names and
addresses are furnished to the Company by the Representative) to whom
Series G Senior Notes may have been sold by the Representative on
behalf of the Purchasers and, upon request, to any other dealers making
such request, either amendments to the Prospectus or supplements
thereto, or (ii) making an appropriate filing pursuant to Section 13 or
14 of the Exchange Act which would supplement or amend the Prospectus,
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need not
be audited) covering a period of at least twelve months beginning not
later than the first day of the Company's fiscal quarter next following
the "effective date" of the Registration Statement as defined in Rule
158(c) under the Securities Act, which earning statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
(h) To use its best efforts to qualify the Series G Senior
Notes for offer and sale under the securities or blue sky laws of such
jurisdictions as the Representative may designate within six months
after the date this agreement becomes effective and to pay filing fees
and disbursements in connection therewith in an amount not exceeding
$3,500 in the aggregate (including filing fees and disbursements paid
or incurred prior to the date this agreement becomes effective),
provided, however, that the Company shall not be required to qualify as
a foreign corporation or to file a consent to service of process or to
file annual reports or to comply with any other requirements deemed by
the Company to be unduly burdensome.
(i) To pay expenses, fees and taxes (other than transfer
taxes) in connection with (1) the preparation and filing of the
Registration Statement and Prospectus, (2) the preparation and
execution of the new supplemental indenture pursuant to which the
Series G Senior Notes are to be issued, (3) the issue and delivery of
the Series G Senior Notes to the Purchasers, and (4) the furnishing of
the opinions, letter and certificates referred to in Section 3 hereof,
except that the Company shall be required to pay the fees and
disbursements (other than filing fees and disbursements referred to in
paragraph (h) of this Section 4) of Dewey Ballantine LLP only in an
event provided in paragraph (j) of this Section 4, the Purchasers
hereby agreeing to pay such fees and disbursements in any other event
and, if such fees should be less than the amount stated by such counsel
to the Representative, to repay the Company the amount of any
reduction.
(j) If the Purchasers shall not take up and pay for the Series
G Senior Notes due to the failure of the Company to comply with any of
the conditions specified in Section 3 hereof, or if this agreement
shall be terminated in accordance with the provisions of Section 7 or 8
hereof, to pay the reasonable fees and disbursements of Dewey
Ballantine LLP, and, if the Purchasers shall not take up and pay for
the Series G Senior Notes due to the failure of the Company to comply
with any of the conditions specified in Section 3 hereof, to reimburse
the Purchasers for their reasonable out-of-pocket expenses, in an
amount not exceeding a total of $10,000, incurred in connection with
the financing contemplated by this agreement.
(k) During the period of 15 days from the date this agreement
becomes effective, without the prior written consent of the
Representative, not to issue or sell directly or indirectly any senior
notes (other than the Series G Senior Notes) or any other long-term
debt of the Company having terms and provisions substantially similar
to the Series G Senior Notes.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the
Purchasers that:
(i) The Registration Statement, when it became
effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and the Bidding Prospectus, on said date, did not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; when the Prospectus Supplement is
filed with the Commission, and at the time of purchase, the
Registration Statement and the Prospectus, as they may be
amended or supplemented, will comply, or be deemed to comply,
in all material respects with the provisions of the Securities
Act and the rules and regulations of the Commission
thereunder, the Registration Statement, as it may be amended
or supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and all documents
incorporated therein by reference pursuant to Item 12 of Form
S-3 as of such dates complied or will comply in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder,
and, on said dates, when read together with the Prospectus, or
the Prospectus as it may be otherwise amended or supplemented,
will not contain an untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, except that the Company makes no
warranty or representation to any Purchaser with respect to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any
Purchaser for use in the Registration Statement or the
Prospectus, or to any statements in or omissions from that
part of the Registration Statement that shall constitute the
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of the Trustee under the Indenture.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this agreement will not violate any of the terms,
conditions or provisions of, or constitute a default under,
any indenture or other contract or agreement to which the
Company is now a party or the charter or by-laws of the
Company or any order of any court or administrative agency
entered in any proceedings to which the Company is now a
party.
(b) The Company agrees to indemnify and hold harmless each of
the Purchasers and each person, if any, who controls any such Purchaser
within the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
otherwise, and to reimburse the Purchasers and such controlling person
or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Bidding Prospectus (if used prior to the date this
agreement becomes effective), or in the Registration Statement, or in
the Prospectus or, if the Company shall furnish to the Purchasers any
amendments or any supplements to the Prospectus, or shall make any
filings pursuant to Section 13 or 14 of the Exchange Act which are
incorporated therein by reference, in the Prospectus as so amended or
supplemented (provided that, if such Prospectus or such Prospectus as
amended or supplemented is used after the expiration of the period of
time specified in Section 4(f) hereof, it shall contain such amendments
or supplements as the Company deems necessary to comply with Section
10(a)(3) of the Securities Act), or arise out of or are based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any such untrue statement or
omission or alleged untrue statement or omission which was made in such
Registration Statement or Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, any Purchaser for use therein and except
that this indemnity with respect to the Bidding Prospectus, and with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the
sale of Series G Senior Notes to any person if a copy of the Prospectus
(exclusive of documents incorporated therein by reference pursuant to
Item 12 of Form S-3), as the same may then be amended or supplemented,
shall not have been sent or given by or on behalf of such Purchaser to
such person with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue statement or
omission or alleged omission was corrected in the Prospectus as amended
or supplemented at the time of such confirmation. Each Purchaser
agrees, within ten days after the receipt by it of notice of the
commencement of any action in respect of which indemnity may be sought
by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 5(b), to notify the Company in
writing of the commencement thereof, but the omission of such Purchaser
so to notify the Company of any such action shall not release the
Company from any liability which it may have to such Purchaser or to
such controlling person otherwise than on account of the indemnity
agreement contained in this Section 5(b). In case any such action shall
be brought against any Purchaser or any such person controlling such
Purchaser and such Purchaser shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled
to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof at its own
expense. In case the Company elects to direct such defense and select
such counsel, any Purchaser or controlling person shall have the right
to employ its own counsel, but, in any such case, the fees and expenses
of such counsel shall be at the expense of such Purchaser or
controlling person unless the employment of such counsel has been
authorized in writing by the Company in connection with defending such
action. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include any statement as to, or an admission
of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its prior
written consent.
The Company's indemnity agreement contained in this Section
5(b), and its covenants, warranties and representations contained in
this agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Series G
Senior Notes hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and to each other Purchaser that the
information furnished in writing to the Company by, or through the
Representative on behalf of, such Purchaser for use in the Registration
Statement or the Prospectus does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection
with such information required to be stated therein or necessary to
make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and such of its officers as shall have signed
the Registration Statement, and each other Purchaser and each person,
if any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and
upon the same terms as the indemnity agreement of the Company set forth
in Section 5(b) hereof, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative
on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser
contained in this Section 6(b), and the warranties and representations
of such Purchaser contained in this agreement, shall remain in full
force and effect regardless of any investigation made by or on behalf
of the Company or other Purchaser or controlling person, and shall
survive the delivery of and payment for the Series G Senior Notes
hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to purchase
or otherwise) to purchase the principal amount of the Series G Senior Notes
which it has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase or
agree to purchase such principal amount of the Series G Senior Notes on the
terms herein set forth; and, if the Representative shall fail to procure a
satisfactory party or parties to purchase or agree to purchase such principal
amount of the Series G Senior Notes on such terms within such period after the
receipt of such notice, then the Company shall be entitled to an additional
period of 24 hours within which to procure another party or parties to purchase
or agree to purchase such principal amount of the Series G Senior Notes on the
terms herein set forth. In any such case, either the Representative or the
Company shall have the right to postpone the time of purchase for a period not
to exceed five full business days from the date determined as provided in
Section 2 hereof, in order that the necessary changes in the Registration
Statement and Prospectus and any other documents and arrangements may be
effected. If the Representative shall fail to procure a satisfactory party or
parties to purchase or agree to purchase such principal amount of the Series G
Senior Notes, and if the Company also does not procure another party or parties
to purchase or agree to purchase such principal amount of the Series G Senior
Notes, as above provided, then this agreement shall terminate. In the event of
any such termination, the Company shall not be under any liability to any
Purchaser (except to the extent, if any, provided in Section 4(j) hereof), nor
shall any Purchaser (other than a Purchaser who shall have failed or refused to
purchase Series G Senior Notes without some reason sufficient to justify, in
accordance with the terms hereof, its termination of its obligations hereunder)
be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Series G Senior Notes, if, after this
agreement becomes effective and prior to the time of purchase, (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgment of the Representative, the marketability of the Series G
Senior Notes shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided
in this Section 8, the Company and each other Purchaser shall be notified
promptly by the Representative by telephone, confirmed in writing. If this
agreement shall not be carried out by any Purchaser for any reason permitted
hereunder, or if the sale of the Series G Senior Notes to the Purchasers as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this agreement and shall not be liable to any Purchaser or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this agreement (except that the Company shall remain liable to
the extent provided in Section 4(j) hereof) and the Purchasers (other than a
defaulting Purchaser) shall be under no liability to the Company nor be under
any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses: if to the Purchasers or the Representative, to the Representative at
the address set forth following its signature in the Form of Proposal, and, if
to the Company, to the Company at 600 North 18th Street, Birmingham, Alabama
35291, Attention: William B. Hutchins, III, Executive Vice President, Chief
Financial Officer and Treasurer, with a copy to Southern Company Services, Inc.,
270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Charles N.
Eldred.
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Purchasers and the Company, its directors and
such of its officers as shall have signed the Registration Statement, and the
controlling persons, if any, referred to in Sections 5 and 6 hereof, and their
respective successors, assigns, executors and administrators, and, subject to
the provisions of Section 7 hereof, no other person shall acquire or have any
right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons,
firms or corporations named in Exhibit A to the Form of Proposal, the term
"Purchasers", as used herein, shall be deemed to mean the several persons, firms
or corporations so named (including any substitute purchaser or purchasers
procured as provided by Section 7 hereof and the Representative hereinafter
mentioned, if so named), and the term "Representative", as used herein, shall be
deemed to mean the person or persons designated as representative or
representatives of the Purchasers by, or in the manner authorized by, the
Purchasers, who, by signing the Form of Proposal, represent that it or they have
been authorized by the Purchasers to execute the Form of Proposal on their
behalf and to act for them in the manner herein provided. In the event that all
the Purchasers execute the Form of Proposal and no one or more of them are
designated to act as representative or representatives, then the term
"Representative" shall be deemed to mean all the persons signing the Form of
Proposal. If the Representative consists of more than one person, the
Representative may act by any one thereof. All obligations of the Purchasers
hereunder are several and not joint. If there shall be only one person, firm or
corporation named in Exhibit A to the Form of Proposal, the term "Purchasers"
and the term "Representative", as used herein, shall mean such person, firm or
corporation.
<PAGE>
EXHIBIT 1
[Letterhead of Balch & Bingham LLP]
[Date]
as the several Purchasers under Purchase Contract effective October __, 1998,
between Alabama Power Company and said Purchasers (the "Purchase Contract") for
the purchase of Alabama Power Company Series G ___% Senior Notes due October 1,
2008 (the "Series G Senior Notes")
c/o
Ladies and Gentlemen:
As counsel to Alabama Power Company (the "Company"), we have
represented the Company in connection with the purchase by you pursuant to the
Purchase Contract of $160,000,000 aggregate principal amount of the Series G
Senior Notes, issued under the Senior Note Indenture dated as of December 1,
1997, between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), as heretofore supplemented and as supplemented by the Seventh
Supplemental Indenture dated as of October __, 1998 (said Indenture, as so
supplemented and amended, being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-53299, 333-53299-01, 333-53299-02 and 333-53299-03) filed by the Company
under the Securities Act of 1933, as amended (the "Act"), as it became effective
under the Act (the "Registration Statement"); the Company's prospectus dated
June 30, 1998, as supplemented by the prospectus supplement dated October __,
1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules
and regulations of the Securities and Exchange Commission (the "Commission")
under the Act, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 1997,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 1998 and June 30, 1998 and the Current Reports on Form 8-K of the Company
dated February 11, 1998, February 20, 1998, April 17, 1998, August 5, 1998,
August 10, 1998, August 11, 1998, September 8, 1998, September 16, 1998 and
October __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series G Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us to express the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of New York law upon the
opinion dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform
its obligations under the Purchase Contract, the Indenture and the
Series G Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's
obligations under the Indenture and the Series G Senior Notes may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture
conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
3. The Series G Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series G Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally
required for the issuance of the Series G Senior Notes have been
obtained; and no other order, consent or other authorization or
approval of any Alabama or United States governmental body (other than
in connection or in compliance with the provisions of the securities or
"blue sky" laws of any jurisdiction, as to which we express no opinion)
is legally required for the issuance of the Series G Senior Notes by
the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above and in the
Prospectus in the second paragraph under the caption "Experts". In the course of
the preparation by the Company of the Registration Statement, the Prospectus and
the Exchange Act Documents, we participated in conferences with certain officers
and employees of the Company, with other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and our participation
in the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
October __, 1998, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Prospectus or the Exchange Act Documents and
with respect to information set forth in the Prospectus under the caption
"Description of the Series G Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Alabama and we do not express any
opinion herein concerning any law other than the law of the State of Alabama and
the federal law of the United States and, to the extent set forth herein, the
law of the State of New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Troutman Sanders LLP and Dewey
Ballantine LLP may rely on this opinion in giving their opinions pursuant to
Section 3(b) of the Purchase Contract insofar as such opinions relate to matters
of Alabama law.
Very truly yours,
BALCH & BINGHAM LLP
<PAGE>
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase Contract effective October __, 1998,
between Alabama Power Company and said Purchasers (the "Purchase Contract") for
the purchase of Alabama Power Company Series G ___% Senior Notes due October 1,
2008 (the "Series G Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the "Company") in
connection with the purchase by you pursuant to the Purchase Contract of
$160,000,000 aggregate principal amount of the Series G Senior Notes, issued
under the Senior Note Indenture dated as of December 1, 1997, between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as heretofore
supplemented and as supplemented by the Seventh Supplemental Indenture dated as
of October __, 1998 (said Indenture, as so supplemented and amended, being
hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-53299, 333-53299-01, 333-53299-02 and 333-53299-03) filed by the Company
under the Securities Act of 1933, as amended (the "Act"), as it became effective
under the Act (the "Registration Statement"); the Company's prospectus dated
June 30, 1998, as supplemented by the prospectus supplement dated October __,
1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules
and regulations of the Securities and Exchange Commission (the "Commission")
under the Act, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 1997,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 1998 and June 30, 1998 and the Current Reports on Form 8-K of the Company
dated February 11, 1998, February 20, 1998, April 17, 1998, August 5, 1998,
August 10, 1998, August 11, 1998, September 8, 1998, September 16, 1998 and
October __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series G Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us to express the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Alabama law upon the
opinion of dated the date hereof rendered to you by Balch & Bingham LLP and
relying as to matters of New York law upon the opinion dated the date hereof
rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform
its obligations under the Purchase Contract, the Indenture and the
Series G Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's
obligations under the Indenture and the Series G Senior Notes may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and the Indenture
conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
3. The Series G Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series G Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally
required for the issuance of the Series G Senior Notes have been
obtained; and no other order, consent or other authorization or
approval of any Alabama or United States governmental body (other than
in connection or in compliance with the provisions of the securities or
"blue sky" laws of any jurisdiction, as to which we express no opinion)
is legally required for the issuance of the Series G Senior Notes by
the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course
of the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with other counsel for the Company and
with representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and our participation
in the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
October __, 1998, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Prospectus or the Exchange Act Documents and
with respect to information set forth in the Prospectus under the caption
"Description of the Series G Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Georgia and we do not express any
opinion herein concerning any law other than the law of the State of Georgia and
the federal law of the United States and, to the extent set forth herein, the
law of the States of Alabama and New York.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
TROUTMAN SANDERS LLP
<PAGE>
EXHIBIT 3
[Letterhead of Dewey Ballantine LLP]
[Date]
as the several Purchasers under Purchase Contract effective October __, 1998,
between Alabama Power Company and said Purchasers (the "Purchase Contract") for
the purchase of Alabama Power Company Series G ___% Senior Notes due October 1,
2008 (the "Series G Senior Notes")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you
pursuant to the Purchase Contract of $160,000,000 aggregate principal amount of
the Series G Senior Notes, issued under the Indenture dated as of December 1,
1997, between Alabama Power Company (the "Company") and The Chase Manhattan
Bank, as Trustee (the "Trustee"), as heretofore supplemented and as supplemented
by the Seventh Supplemental Indenture dated as of October __, 1998 (said
Indenture, as so supplemented and amended, being hereinafter called the
"Indenture").
We have examined the Registration Statement on Form S-3 (File Nos.
333-53299, 333-53299-01, 333-53299-02 and 333-53299-03) filed by the Company
under the Securities Act of 1933, as amended (the "Act"), as it became effective
under the Act (the "Registration Statement"); the Company's prospectus dated
June 30, 1998, as supplemented by the prospectus supplement dated October __,
1998 (the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules
and regulations of the Securities and Exchange Commission (the "Commission")
under the Act, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 1997,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 1998 and June 30, 1998 and the Current Reports on Form 8-K of the Company
dated February 11, 1998, February 20, 1998, April 17, 1998, August 5, 1998,
August 10, 1998, August 11, 1998, September 8, 1998, September 16, 1998 and
October __, 1998 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Series G Senior
Notes, of which we have examined a specimen), and we have made such other and
further investigations as we deemed necessary to enable us to express the
opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Alabama law upon the
opinion of Balch & Bingham LLP, referred to below, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Alabama and has due corporate authority to carry on the public
utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform
its obligations under the Purchase Contract, the Indenture and the
Series G Senior Notes.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's
obligations under the Indenture and the Series G Senior Notes may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and the Indenture
conforms as to legal matters in all material respects to the
description thereof in the Prospectus.
3. The Series G Senior Notes have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the Purchase Contract and subject to the qualifications set forth in
paragraph 2 above, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms; and the Series G Senior Notes conform as
to legal matters in all material respects to the description thereof in
the Prospectus.
4. All orders, consents or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally
required for the issuance of the Series G Senior Notes have been
obtained; and no other order, consent or other authorization or
approval of any Alabama or United States governmental body (other than
in connection or in compliance with the provisions of the securities or
"blue sky" laws of any jurisdiction, as to which we express no opinion)
is legally required for the issuance of the Series G Senior Notes by
the Company in accordance with the terms of the Purchase Contract.
5. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Series G Senior Notes, and the legal opinions
dated the date hereof rendered to you by Balch & Bingham LLP and Troutman
Sanders LLP, counsel for the Company, pursuant to the Purchase Contract, are in
form satisfactory to us.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 2 and 3 above. In the course
of the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with representatives of Arthur Andersen
LLP and with counsel for the Company. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement and the Prospectus and our participation in the conferences referred
to above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of October __, 1998, complied as to form
in all material respects with the requirements of the Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) nothing came to our attention which gives us
reason to believe that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission on such date),
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents and with respect to information set
forth in the Prospectus under the caption "Description of the Series G Senior
Notes - Book-Entry Only Issuance - The Depository Trust Company."
We are members of the Bar of the State of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States and, to the extent set forth
herein, the law of the State of Alabama.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent, except that Balch & Bingham LLP and Troutman
Sanders LLP may rely on this opinion in giving their opinions pursuant to
Section 3(b) of the Purchase Contract insofar as such opinions relate to matters
of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
<PAGE>
EXHIBIT 4
[Letterhead of Cravath, Swaine & Moore]
[Date]
as the several Purchasers under Purchase Contract effective October __, 1998,
between Alabama Power Company and said Purchasers for the purchase of Alabama
Power Company Series G ___% Senior Notes due October 1, 2008
c/o
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (the "Bank") in
connection with (a) the Senior Note Indenture, dated as of December 1, 1997 as
heretofore supplemented (the "Original Indenture"), between Alabama Power
Company (the "Company") and the Bank, as Trustee, and (b) the Seventh
Supplemental Indenture dated as of October __, 1998 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture and certain resolutions adopted by
the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture, and, insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its terms
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of the
Indenture does not conflict with or constitute a breach of the charter or bylaws
of the Bank; and
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture or the performance
by the Bank of its duties thereunder, except such as have been obtained, taken
or made.
We are admitted to practice only in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Exhibit 4.2
ALABAMA POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 15, 1998
$160,000,000
SERIES G 5 3/8% SENIOR NOTES
DUE OCTOBER 1, 2008
<PAGE>
TABLE OF CONTENTS1
PAGE
ARTICLE 1 Series G Senior Notes 4
SECTION 101. Establishment 4
SECTION 102. Definitions 4
SECTION 103. Payment of Principal and Interest 5
SECTION 104. Denominations 6
SECTION 105. Global Securities 6
SECTION 106. Transfer 6
SECTION 107. Redemption at the Company's Option 7
ARTICLE 2 Miscellaneous Provisions 7
SECTION 201. Recitals by Company 7
SECTION 202. Ratification and Incorporation
of Original Indenture 8
SECTION 203. 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.
<PAGE>
THIS SEVENTH SUPPLEMENTAL INDENTURE is made as of the 15th day
of October, 1998, by and between ALABAMA POWER COMPANY, an Alabama corporation,
600 North 18th Street, Birmingham, Alabama 35291 (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, 450 West 33rd Street, New York,
New York 10001 (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 December 1, 1997 (the "Original Indenture"), with the
Trustee, as supplemented by a First Supplemental Indenture, dated as of December
12, 1997 (the "First Supplemental Indenture"), a Second Supplemental Indenture
dated as of February 26, 1998 (the "Second Supplemental Indenture"), a Third
Supplemental Indenture, dated as of April 23, 1998 (the "Third Supplemental
Indenture"), a Fourth Supplemental Indenture, dated as of August 19, 1998 (the
"Fourth Supplemental Indenture"), a Fifth Supplemental Indenture, dated as of
September 17, 1998 (the "Fifth Supplemental Indenture") and a Sixth Supplemental
Indenture, dated as of September 24, 1998 (the "Sixth Supplemental Indenture").
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as
supplemented by this Seventh Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Senior
Notes may at any time be established pursuant to a supplemental indenture
executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a
new series of Senior Notes;
WHEREAS, additional Senior Notes of other series hereafter
established, except as may be limited in the Original Indenture as at the time
supplemented and modified, may be issued from time to time pursuant to the
Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution
and delivery of this Seventh 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:
<PAGE>
ARTICLE 1
Series G 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 G 5 3/8% Senior Notes due October 1, 2008 (the "Series G Notes").
There are to be authenticated and delivered $160,000,000 principal
amount of Series G Notes, and no further Series G Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series G Notes shall be issued in definitive fully
registered form.
The Series G Notes shall be issued in the form of one Global Security
in substantially the form set out in Exhibit A hereto. The Depositary with
respect to the Series G Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
G Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series G 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.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Series G Notes to be redeemed that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Series G Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "H.15(519)" or (ii) if such release (or any
successor release) is not published or does not contain such prices on such
Business Day, the Reference Treasury Dealer Quotation for such Redemption Date.
"Interest Payment Dates" means April 1 and October 1 of each year.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Original Issue Date" means October 15, 1998.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in New York City appointed by the Company and reasonably acceptable to
the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date).
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Stated Maturity" means October 1, 2008.
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
SECTION 103. Payment of Principal and Interest. The principal of the
Series G Notes shall be due at Stated Maturity (unless earlier redeemed). The
unpaid principal amount of the Series G Notes shall bear interest at the rate of
5 3/8% 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 Series G 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 G 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 G 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 G 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 G Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series G 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 G 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 with the same force and effect as if made on the date the
payment was originally payable.
<PAGE>
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Series G Notes shall be made upon surrender of the
Series G Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series G Notes shall be paid in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payments of interest (including interest on any
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Trustee at least
sixteen (16) days prior to the date for payment by the Person entitled thereto.
SECTION 104. Denominations. The Series G Notes may be issued in the
denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series G 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 G Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series G 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 G Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series G 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 G Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series G 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 G 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.
<PAGE>
The Company shall not be required (a) to issue, transfer or exchange
any Series G Notes 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 G 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 G Notes theretofore selected
for redemption in whole or in part, except the unredeemed portion of any Series
G Note redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series G 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 Redemption Prices equal to the greater
of (i) 100% of the principal amount of the Series G Notes being redeemed or (ii)
the sum of the present values of the remaining scheduled payments of principal
of and interest on the Series G Notes being redeemed discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at a discount rate equal to the Treasury Yield plus 12.5
basis points, plus, for (i) and (ii) above, whichever is applicable, accrued
interest on the Series G Notes to the Redemption Date.
The Trustee shall not be responsible for the calculation of the
Redemption Price. The Company shall calculate the Redemption Price and promptly
notify the Trustee thereof.
In the event of redemption of the Series G Notes in part only, a new
Series G 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 G 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 Series G Notes shall, with
respect to the principal thereof, be divisible by $1,000.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Seventh
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 G Notes and of this Seventh Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 202. 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, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, and this Seventh
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 203. Executed in Counterparts. This Seventh 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.
<PAGE>
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: ALABAMA POWER COMPANY
By: By:
Patricia B. Southerland William B. Hutchins, III
Assistant Secretary Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: THE CHASE MANHATTAN BANK, as Trustee
By: By:
Senior Trust Officer Senior Trust Officer
<PAGE>
EXHIBIT A
FORM OF SERIES G NOTE
NO. __ CUSIP NO. 010392DK1
ALABAMA POWER COMPANY
SERIES G 5 3/8%SENIOR NOTE
DUE OCTOBER 1, 2008
- --------------------------------------------------------------------------
Principal Amount: $_____________
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Regular Record Date: 15th calendar day prior to Interest Payment Date
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Original Issue Date: October 15, 1998
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Stated Maturity: October 1, 2008
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Interest Payment Dates: April 1 and October 1
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Interest Rate: 5 3/8% per annum
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
Authorized Denomination: $1,000
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
<PAGE>
Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_______________________________________________, or registered assigns, the
principal sum of _________ DOLLARS ($__________) 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, semi-annually in arrears
on each Interest Payment Date as specified above, commencing on April 1, 1999,
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 the Series G Notes shall be made upon surrender of the
Series G Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series G 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 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.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
ALABAMA POWER COMPANY
By:
Vice President
Attest:
Assistant Secretary
{Seal of ALABAMA POWER COMPANY appears here}
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
<PAGE>
(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 December 1, 1997, as supplemented (the "Indenture"),
between the Company and The Chase Manhattan Bank, 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 G 5 3/8%
Senior Notes due October 1, 2008 (the "Series G Notes") in the aggregate
principal amount of up to $160,000,000. Capitalized terms used herein for which
no definition is provided herein shall have the meanings set forth in the
Indenture.
The Series G 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
Redemption Prices equal to the greater of (i) 100% of the principal amount of
the Series G Notes being redeemed or (ii) the sum of the present values of the
remaining scheduled payments of principal of and interest on the Series G Notes
being redeemed discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at a discount rate
equal to the Treasury Yield plus 12.5 basis points, plus, for (i) and (ii)
above, whichever is applicable, accrued interest on the Series G Notes to the
Redemption Date.
The Trustee shall not be responsible for the calculation of the
Redemption Price. The Company shall calculate the Redemption Price and promptly
notify the Trustee thereof.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof. The Series G 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.
<PAGE>
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 $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same upon surrender of the Note or Notes to be exchanged
at the office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
<PAGE>
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.
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
