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) August 13, 1999
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ALABAMA POWER COMPANY
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(Exact name of registrant as specified in its charter)
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.)
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Item 5. Other Events.
On August 13, 1999, Alabama Power Company (the "Company")
entered into an Underwriting Agreement covering the issue and sale by the
Company of $250,000,000 aggregate principal amount of its Series K 7.125% Senior
Notes due August 15, 2004 (the "Series K 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.
333-67453, 333-67453-01, 333-67453-02 and 333-67453-03) of the Company.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated August 13, 1999, among the
Company and Lehman Brothers Inc., BNY Capital Markets, Inc.,
A.G. Edwards & Sons, Inc. and First Union Capital Markets
Corp. as the Underwriters.
4.2 Eleventh Supplemental Indenture to Senior Note
Indenture dated as of August 19, 1999, providing
for the issuance of the Series K Senior Notes.
4.7 Form of Series K Senior Note (included in Exhibit 4.2 above).
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges
plus preferred dividend requirements (pre-income
tax basis).
23 Consent of Balch & Bingham LLP.
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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: August 19, 1999 ALABAMA POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
$250,000,000 Series K 7.125% Senior Notes
due August 15, 2004
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
August 13, 1999
Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Ladies and Gentlemen:
Alabama Power Company, an Alabama corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (the "Underwriters", which term shall
include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom you are acting as representative (the "Representative"), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $250,000,000 principal amount of the Series K
7.125% Senior Notes due August 15, 2004 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of December 1, 1997, as heretofore
supplemented (the "Base Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), as supplemented by an eleventh supplemental
indenture to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos.
333-67453, 333-67453-01, 333-67453-02 and 333-67453-03), in respect of
the Senior Notes and certain other securities has been prepared and
filed in accordance with the provisions of the Securities Act of 1933,
as amended (the "1933 Act"), with the Securities and Exchange
Commission (the "Commission"); such registration statement, as
amended, and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Underwriters, has been
declared effective by the Commission in such form (except that copies
of the registration statement, as amended, and any post-effective
amendment delivered to the Underwriters
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need not include exhibits but shall include all documents incorporated
by reference therein); and no stop order suspending the effectiveness
of such registration statement has been issued and no proceeding for
that purpose has been initiated or, to the best knowledge of the
Company, threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement, included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the 1933
Act, being hereinafter called a "Preliminary Prospectus"); such
registration statement, as it became effective, including the exhibits
thereto and all documents incorporated by reference therein pursuant
to Item 12 of Form S-3 at the time such registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Senior Notes, in the form in which it was
included in the Registration Statement at the time it became
effective, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective
date of the Registration Statement that is incorporated by reference
in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the
Senior Notes in the form in which it is filed with the Commission,
pursuant to Rule 424(b) under the 1933 Act in accordance with Section
3(g) hereof, including any documents incorporated by reference therein
as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of
the 1934 Act and the rules and regulations of the Commission
thereunder, and as of such time of filing, when read together with the
Prospectus, none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus or any further amendment or supplement thereto, when
such documents are filed with the Commission, will comply in all
material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact
or
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omit to state a material fact required to be stated therein or
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 the Underwriters
with respect to: (A) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by the Representative expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series K Senior Notes
- Book-Entry Only Issuance -- The Depository Trust Company".
(c) The Registration Statement and the Prospectus and the Final
Supplemented Prospectus and any further amendments or supplements to
the Registration Statement or the Prospectus, when any such
post-effective amendments are declared effective or supplements are
filed with the Commission, as the case may be, will comply, in all
material respects with the applicable provisions of the 1933 Act, the
1934 Act, the 1939 Act (hereinafter defined) and the General Rules and
Regulations of the Commission thereunder and do not and will not, (i)
as of the applicable effective date as to the Registration Statement
and any amendment thereto and (ii) as of the applicable filing date as
to the Final Supplemented Prospectus and any Prospectus as further
amended or supplemented, contain an untrue statement of a material
fact or omit to state a 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 the Company makes no warranties
or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) (collectively, the "Form T-1") under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or omissions made in
the Registration Statement or the Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by the Representative expressly for use therein or (C)
any information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series K Senior Notes - Book-Entry
Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have
been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except
as otherwise stated therein, there has been no material adverse change
in the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing 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 and to own and
operate the properties used by it in such business, to enter into and
perform its obligations under this Agreement and the Indenture and to
issue and sell the Senior Notes to the Underwriters.
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(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
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(k) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"); (C)
the qualification of the Indenture under the 1939 Act; (D) the
approval of the Alabama Public Service Commission (the "Alabama
Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein setforth, the
Company agrees to sell to each Underwriter, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, the principal amount
of Senior Notes set forth in Schedule I to this Agreement opposite the name
of such Underwriter (plus any additional amount of Senior Notes that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof), at a price equal to 99.568% of the principal amount
thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Troutman Sanders LLP, 600 Peachtree Street,
N.E., Atlanta, Georgia 30308 at 10 A.M., Eastern Daylight Time, on August
19, 1999 (unless postponed in accordance with the provisions of Section 10)
or such other time, place or date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer in federal funds at the Closing Date against
delivery of the Senior Notes to the Underwriters.
The delivery of the Senior Notes shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Representative shall accept such delivery.
The certificate(s) for the Senior Notes 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 Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
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including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representative orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Company will deliver to the Representative
sufficient conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and amendments
thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating to
the offering of the Senior Notes in such quantities as the Underwriters may
from time to time reasonably request. If, during the period (not exceeding
nine months) when the delivery of a prospectus shall be required by law in
connection with the sale of any Senior Notes by an Underwriter, any event
relating to or affecting the Company, or of which the Company shall be
advised in writing by the Representative, shall occur, which in the opinion
of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus, as the
case may be, in order to make the Final Supplemented Prospectus not
misleading in the light of the circumstances when it is delivered, or if
for any other reason it shall be necessary during such period to amend or
supplement the Final Supplemented Prospectus or to file under the 1934 Act
any document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the
Company forthwith will (i) notify the Underwriters to suspend solicitation
of purchases of the Senior Notes and (ii) at its expense, make any such
filing or prepare and furnish to the Underwriters a reasonable number of
copies of a supplement or supplements or an amendment or amendments to the
Final Supplemented Prospectus which will supplement or amend the Final
Supplemented Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Final Supplemented Prospectus is
delivered, not misleading or which will effect any other necessary
compliance. In case any Underwriter is required to deliver a prospectus in
connection with the sale of any Senior Notes after the expiration of the
period specified in the preceding sentence, the Company, upon the request
of such Underwriter, will furnish to such Underwriter, at the expense of
such Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the period
<PAGE>
specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof prior to
such filing to the Representative and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the United
States as the Representative may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a consent to
service of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the Company to
be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any Senior Notes or any security convertible
into or exchangeable into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement).
(f) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to advise
the Representative of such filing and to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements
of the Company's counsel and accountants, (iv) the qualification of
the Senior Notes under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any
blue sky survey (such fees and disbursements of counsel shall not
exceed $3,500), (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the
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printing and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the
Senior Notes, (ix) any fees payable in connection with the rating of
the Senior Notes, (x) the cost and charges of any transfer agent or
registrar, and (xi) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in
connection with their offering of the Senior Notes including fees and
disbursements of their counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings
for that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative, are deemed
acceptable to the Underwriters and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to
the Underwriters and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall
give notice to the other parties to the effect that such order
contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham LLP,
general counsel for the Company, substantially in the form attached hereto
as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine & Moore,
counsel to the Trustee, substantially in the form attached hereto as
Schedule III.
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(4) The opinion, dated as of the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(5) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or financial condition
of the Company, whether or not arising in the ordinary course of business,
and the Underwriters shall have received a certificate of the President or
any Vice President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(6) On the Closing Date, the Underwriters shall have received from
Arthur Andersen LLP a letter dated the Closing Date to the effect that: (A)
they are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the rules and regulations under the 1933
Act; (B) in their opinion, the financial statements 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 1934
Act and the rules and regulations under the 1934 Act; and (C) on the basis
of certain limited procedures performed 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 of the latest available unaudited financial statements
of the Company, if any, as of the calendar quarter 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 Underwriter's 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
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unaudited condensed financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the 1934
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 Dividends 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 calendar quarter 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.
(7) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require for
the purpose of enabling it to pass upon the issuance and sale of the Senior
Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Senior
Notes as herein contemplated shall be satisfactory in form and substance to
the Underwriters and Dewey Ballantine LLP, counsel for the Underwriters.
(8) That no amendment or supplement to the Registration Statement or
the Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to Section 13
or 14 of the 1934 Act) shall be unsatisfactory in form to Dewey Ballantine
LLP or shall contain information (other than with respect to an amendment
<PAGE>
or supplement relating solely to the activity of the Underwriters) which,
in the reasonable judgment of the Representative, shall materially impair
the marketability of the Senior Notes.
(9) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time prior
to the Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Sections 4, 7 and 9(b)
hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the conditions set
forth in the first sentence of Section 5(a) and in Section 5(b). In case
such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof
to the Representative. Any such termination shall be without liability of
any party to any other party except as otherwise provided in Sections 4, 7
and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 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 1933
Act, 1934 Act or otherwise, and to reimburse any such Underwriter 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 any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Final Supplemented Prospectus or, if the Company shall
furnish to the Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the 1934 Act which
are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus
as so amended or supplemented, 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 alleged
untrue statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus or Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Representative for use therein
and except that this indemnity with respect to the Preliminary Prospectus,
<PAGE>
the Prospectus or the Final Supplemented Prospectus, if the Company shall
have furnished any amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling such Underwriter)
on account of any losses, claims, damages, liabilities or actions arising
from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented 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 Underwriter 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 Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus as supplemented or amended at the time of
such confirmation. Each Underwriter 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 7, to
notify the Company in writing of the commencement thereof but the omission
of such Underwriter so to notify the Company of any such action shall not
release the Company from any liability which it may have to such
Underwriter or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 7. In case any such action
shall be brought against an Underwriter or any such person controlling such
Underwriter and such Underwriter 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 Underwriter 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 Underwriter or such 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.
(b) Each Underwriter agrees severally and not jointly, to indemnify
and hold harmless the Company, its directors and such of its officers who
have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act to the same extent and upon the same terms as
the indemnity agreement of the Company set forth in Section 7(a) hereof,
but only with respect to alleged untrue statements or omissions made in the
Registration Statement, the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished
in writing to the Company by the Representative for use therein.
<PAGE>
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by, or on behalf of the Company and
shall survive delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (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 Senior Notes shall have
been materially impaired.
(b) If this Agreement shall be terminated by the Representative
pursuant to subsection (a) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters for the reasonable fees
and disbursements of Dewey Ballantine LLP and for the out of pocket
expenses (in an amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of
the Senior Notes and, upon such reimbursement, the Company shall be
absolved from any further liability hereunder, except as provided in
Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER
If an Underwriter shall fail on the Closing Date to purchase the
Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriters,
or any other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
<PAGE>
(a) if the principal amount of Defaulted Securities does not exceed
10% of the Senior Notes, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all such non-defaulting
Underwriters (or in such other proportions as the Representative may
specify), or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company
shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Final Supplemented Prospectus or in any other
documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Lehman Brothers
Inc., 3 World Financial Center, New York, NY 10285, Attention: Managing
Director, Utilities Investment Banking; notices to the Company shall be
mailed to 600 North 18th Street, 17th floor, Birmingham, Alabama, 35291,
Attention: Corporate Secretary, with a copy to Southern Company Services,
Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and
the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Senior Notes from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
<PAGE>
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City
time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
BY: LEHMAN BROTHERS INC.
As Representative of the other Underwriters named in Schedule I hereto
By:___________________________________________
Title:
<PAGE>
SCHEDULE I
Principal Amount
NAME OF UNDERWRITER of Senior Notes
Lehman Brothers Inc. $137,500,000
BNY Capital Markets, Inc. $37,500,000
A.G. Edwards & Sons, Inc. $37,500,000
First Union Capital Markets Corp. $37,500,000
TOTAL $250,000,000
<PAGE>
Schedule II-A
[Letterhead of Balch & Bingham LLP]
___________ __, 199_
Lehman Brothers Inc.
BNY Capital Markets, Inc.
A.G. Edwards & Sons, Inc.
First Union Capital Markets Corp.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
ALABAMA POWER COMPANY
Series K 7.125% Senior Notes
Due August 15, 2004
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $250,000,000
aggregate principal amount of its Series K 7.125% Senior Notes due August 15,
2004 (the "Notes") pursuant to a Senior Note Indenture dated as of December 1,
1997, by and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the
Eleventh Supplemental Indenture dated as of _______ __, 1999 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated _______ __, 1999 (the "Underwriting Agreement"),
among the Company and you (the "Underwriters"). This opinion is being delivered
to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated December 4, 1998 as supplemented by a final prospectus
supplement dated _______ __, 1999 (the "Final Supplemented Prospectus"), 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, 1998, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 1999 and June 30,
1999 and the Current Reports on Form 8-K of the Company dated February 10, 1999,
February 18, 1999, May 19, 1999 and August 13, 1999 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, 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 organized and is validly existing and in
good standing as a corporation 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 and to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; 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 and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the 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 may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by 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 Final Supplemented Prospectus.
2
<PAGE>
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". In the course of the preparation by the Company of
the Registration Statement, the Final Supplemented 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 Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented 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 Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the 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 Final Supplemented 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 the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998
(including the Exchange Act Documents on file with the Commission as of 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 Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement therein of
a material fact or omits to state a 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
3
<PAGE>
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series K 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 laws of such State
and, to the extent set forth herein, the law of the States of New York and the
federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person 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 the Underwriting
Agreement insofar as such opinion relates to matters of Alabama law.
Yours very truly,
BALCH & BINGHAM LLP
4
<PAGE>
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Lehman Brothers Inc.
BNY Capital Markets, Inc.
A.G. Edwards & Sons, Inc.
First Union Capital Markets Corp.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
ALABAMA POWER COMPANY
Series K 7.125% Senior Notes
Due August 15, 2004
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $250,000,000
aggregate principal amount of its Series K 7.125% Senior Notes due August 15,
2004 (the "Notes") pursuant to a Senior Note Indenture dated as of December 1,
1997, by and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the
Eleventh Supplemental Indenture dated as of _______ __, 1999 (collectively, the
"Indenture"); and (ii) the purchase by you (the "Underwriters") of the Notes
pursuant to the terms of an Underwriting Agreement dated _______ __, 1999, among
the Company and the Underwriters (the "Underwriting Agreement"). This opinion is
being delivered to you pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated December 4, 1998 as supplemented by a final prospectus
supplement dated _______ __, 1999 (the "Final Supplemented Prospectus"), 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, 1998, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 1999 and June 30,
1999 and the Current Reports on Form 8-K of the Company dated February 10, 1999,
February 18, 1999, May 19, 1999 and August 13, 1999 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary 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.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Alabama law upon the opinion 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 Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; 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 and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the 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 may be limited by bankruptcy, insolvency, reorganization,
2
<PAGE>
moratorium and other similar laws relating to or affecting creditors' rights
generally and by 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 Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented 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 Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the 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 Final Supplemented 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 the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998
(including the Exchange Act Documents on file with the Commission as of 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
3
<PAGE>
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a 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 Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series K 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 laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
TROUTMAN SANDERS LLP
4
<PAGE>
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Lehman Brothers Inc.
BNY Capital Markets, Inc.
A.G. Edwards & Sons, Inc.
First Union Capital Markets Corp.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Alabama Power Company
Series K 7.125% Senior Notes
Due August 15, 2004
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 Eleventh
Supplemental Indenture dated as of ____ __, 1999 (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
<PAGE>
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
<PAGE>
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 199_
Lehman Brothers Inc.
BNY Capital Markets, Inc.
A.G. Edwards & Sons, Inc.
First Union Capital Markets Corp.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, NY 10285
ALABAMA POWER COMPANY
Series K 7.125% Senior Notes
Due August 15, 2004
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Alabama Power Company (the "Company") of $250,000,000
of its Series K 7.125% Senior Notes (the "Notes") pursuant to a Senior Note
Indenture dated as of December 1, 1997, by and between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Eleventh Supplemental Indenture dated as of _______
__, 1999 (collectively, the "Indenture"); and (ii) the purchase by you of the
Notes pursuant to the terms of an Underwriting Agreement dated _______ __, 1999,
among the Company and the Underwriters (the "Underwriting Agreement"). This
opinion is being delivered to you pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated December 4, 1998, as supplemented by a final prospectus
supplement dated _________, 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, 1998, the Quarterly Reports on Form 10-Q of the Company for the quarters
ended March 31, 1999 and June 30, 1999 and the Current Reports on Form 8-K of
the Company, dated February 10, 1999, February 18, 1999, May 19, 1999 and August
13, 1999 (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary 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.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Alabama upon the opinion of Balch & Bingham LLP, dated the date
hereof and addressed to you 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 and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; 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 and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the 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 may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
<PAGE>
affecting creditors' rights generally and by 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 Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented 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 to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
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 Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the 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 Final Supplemented 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 the date of filing
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998 (including the Exchange Act Documents on file with the Commission as of
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
<PAGE>
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a 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 Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series K Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company".
We are members of the State Bar 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 solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person 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 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and Balch
& Bingham LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
ALABAMA POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
ELEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 19, 1999
$250,000,000
SERIES K 7.125% SENIOR NOTES
DUE AUGUST 15, 2004
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS1
PAGE
ARTICLE 1
<S> <C>
Series K Senior Notes.............................................................................................4
SECTION 101. Establishment.......................................................................................4
SECTION 102. Definitions.........................................................................................4
SECTION 103. Payment of Principal and Interest...................................................................4
SECTION 104. Denominations.......................................................................................5
SECTION 105. Global Securities...................................................................................5
SECTION 106. Transfer............................................................................................6
SECTION 107. Redemption at the Company's Option..................................................................6
ARTICLE 2Miscellaneous Provisions.................................................................................6
SECTION 201. Recitals by Company.................................................................................6
SECTION 202. Ratification and Incorporation of Original Indenture................................................6
SECTION 203. Executed in Counterparts............................................................................6
</TABLE>
1 This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
<PAGE>
THIS ELEVENTH SUPPLEMENTAL INDENTURE is made as of the 19th
day of August, 1999, 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"), a Sixth Supplemental
Indenture, dated as of September 24, 1998 (the "Sixth Supplemental Indenture"),
a Seventh Supplemental Indenture, dated as of October 15, 1998 (the "Seventh
Supplemental Indenture"), an Eighth Supplemental Indenture, dated as of November
3, 1998 (the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture,
dated as of November 17, 1998 (the "Ninth Supplemental Indenture") and a Tenth
Supplemental Indenture, dated as of May 26, 1999 (the "Tenth Supplemental
Indenture");
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as
supplemented by this Eleventh 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 Eleventh 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:
3
<PAGE>
ARTICLE 1
Series K 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 K 7.125% Senior Notes due August 15, 2004 (the "Series K Notes").
There are to be authenticated and delivered $250,000,000 principal
amount of Series K Notes, and no further Series K Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series K Notes shall be issued in definitive fully
registered form.
The Series K Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Series K Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
K Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series K 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.
"Interest Payment Dates" means February 15 and August 15 of each year.
"Original Issue Date" means August 19, 1999.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the February 1 or August 1, as the case may be,
immediately preceding such Interest Payment Date.
"Stated Maturity" means August 15, 2004.
SECTION 103. Payment of Principal and Interest. The principal of the
Series K Notes shall be due at Stated Maturity. The unpaid principal amount of
the Series K Notes shall bear interest at the rate of 7.125% per annum until
paid or duly provided for. Interest shall be paid semiannually in arrears on
each Interest Payment Date to the Person in whose name the Series K Notes are
registered on the Regular Record Date for such Interest Payment Date, provided
that interest payable at the Stated Maturity of principal as provided herein
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 K Notes are registered at the close
4
<PAGE>
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 K 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 K 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 K Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series K 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 K 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.
Payment of the principal and interest due at the Stated Maturity of the
Series K Notes shall be made upon surrender of the Series K Notes at the
Corporate Trust Office of the Trustee. The principal of and interest on the
Series K Notes shall be paid in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payments of interest (including interest on any Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
or other electronic transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto.
SECTION 104. Denominations. The Series K Notes may be issued in the
denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series K 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 K Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series K 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 K 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 K 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
5
<PAGE>
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 K Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series K 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 K 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.
SECTION 107. Redemption at the Company's Option.
The Series K Notes will not be redeemable at the option of the Company
prior to the Stated Maturity.
The Series K Notes will not have a sinking fund.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Eleventh
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 K Notes and of this Eleventh 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, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture, the Tenth Supplemental Indenture and this Eleventh
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 203. Executed in Counterparts. This Eleventh Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
6
<PAGE>
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:
Trust Officer Vice President
7
<PAGE>
EXHIBIT A
FORM OF SERIES K NOTE
NO. __ CUSIP NO. 010392DN5
ALABAMA POWER COMPANY
SERIES K 7.125% SENIOR NOTE
DUE AUGUST 15, 2004
Principal Amount: $_____________
Regular Record Date: The February 1 or August 1, as
the case may be, immediately
preceding an Interest Payment Date
Original Issue Date: August 19, 1999
Stated Maturity: August 15, 2004
Interest Payment Dates: February 15 and August 15
Interest Rate: 7.125% 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, 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, semiannually in arrears on each Interest Payment Date as
specified above, commencing on February 15, 2000, and on the Stated Maturity 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) 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 the Stated Maturity
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
1
<PAGE>
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 of
the Series K Notes shall be made upon surrender of the Series K Notes at the
Corporate Trust Office of the Trustee. The principal of and interest on the
Series K Notes shall be paid in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
or other electronic transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least 16 days prior to the date for payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
2
<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}
3
<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
4
<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 K 7.125%
Senior Notes due August 15, 2004 (the "Series K Notes") in the aggregate
principal amount of up to $250,000,000. Capitalized terms used herein for which
no definition is provided herein shall have the meanings set forth in the
Indenture.
The Series K Notes will not be redeemable at the option of the Company
prior to the Stated Maturity.
The Series K Notes will not have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
5
<PAGE>
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.
6
<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
<TABLE>
<CAPTION>
Exhibit 12.1
8/17/99
ALABAMA POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1998
and the twelve months ended June, 30 1999
Twelve
Year ended December 31, Months
Ended
----------------------------------------------------------------------- June, 30
1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- -----
------------------------------Thousands of Dollars------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $594,669 $628,304 $627,627 $645,449 $702,409 $664,224
Federal and state income taxes 242,569 186,856 191,167 222,956 141,332 112,208
Deferred income taxes, net (32,536) 32,047 16,715 (12,879) 79,323 100,629
Deferred investment tax credits (4) (75) 0 0 0 0
AFUDC - Debt funds 3,590 7,109 6,517 4,855 4,664 8,445
-------- -------- -------- -------- -------- --------
Earnings as defined $808,288 $854,241 $842,026 $860,381 $927,728 $885,506
======== ======== ======== ======== ======== ========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $180,182 $183,199 $171,689 $169,536 $194,559 $193,076
Interest on interim obligations 5,939 16,917 20,617 22,787 11,012 9,225
Amort of debt disc, premium and expense, net 9,655 20,270 9,520 9,657 42,506 18,115
Other interest charges 19,909 27,064 34,227 57,799 67,129 63,962
-------- -------- -------- -------- -------- --------
Fixed charges as defined $215,685 $247,450 $236,053 $259,779 $315,206 $284,378
======== ======== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES 3.75 3.45 3.57 3.31 2.94 3.11
Note: The above figures have been adjusted to give effect to Alabama Power Company's 50% ownership of Southern Electric
Generating Company.
</TABLE>
<TABLE>
<CAPTION>
Exhibit 12.2
8/17/99
ALABAMA POWER COMPANY
Computation of ratio of
earnings to fixed charges plus
preferred dividend requirements
for the five years ended
December 31, 1998
and the twelve months ended June, 30 1999
Twelve
Months
Year ended December 31, Ended
------------------------------------------------------------------ June 30,
1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- ----
-----------------------------------------Thousands of Dollars---------------------
<S> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 594,669 $ 628,304 $ 627,627 $ 645,449 $ 702,409 $ 664,224
Federal and state income taxes 242,569 186,856 191,167 222,956 141,332 112,208
Deferred income taxes, net (32,536) 32,047 16,715 (12,879) 79,323 100,629
Deferred investment tax credits (4) (75) 0 0 0 0
AFUDC - Debt funds 3,590 7,109 6,517 4,855 4,664 8,445
--------- --------- --------- --------- --------- ---------
Earnings as defined $ 808,288 $ 854,241 $ 842,026 $ 860,381 $ 927,728 $ 885,506
========= ========= ========= ========= ========= =========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 180,182 $ 183,199 $ 171,689 $ 169,536 $ 194,559 $ 193,076
Interest on interim obligations 5,939 16,917 20,617 22,787 11,012 9,225
Amort of debt disc, premium and expense,
net 9,655 20,270 9,520 9,657 42,506 18,115
Other interest charges 19,909 27,064 34,227 57,799 67,129 63,962
--------- --------- --------- --------- --------- ---------
Fixed charges as defined 215,685 247,450 236,053 259,779 315,206 284,378
Tax deductible preferred dividends 1,605 1,605 1,605 1,589 1,236 1,236
--------- --------- --------- --------- --------- ---------
217,290 249,055 237,658 261,368 316,442 285,614
--------- --------- --------- --------- --------- --------
Non-tax deductible preferred dividends 24,630 25,464 24,997 12,997 13,407 14,511
Ratio of net income before taxes to
net income x 1.549 x 1.564 x 1.522 x 1.538 x 1.563 x 1.548
--------- --------- --------- --------- --------- ---------
Pref dividend requirements before
income taxes 38,152 39,826 38,045 19,989 20,955 22,463
---------- --------- --------- --------- ---------- ---------
Fixed charges plus pref dividend
requirements $ 255,442 $ 288,881 $ 275,703 $ 281,357 $ 337,397 $ 308,077
========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 3.16 2.96 3.05 3.06 2.75 2.87
==== ==== ==== ==== ==== ====
Note: The above figures have been adjusted to give effect to Alabama Power Company's 50% ownership of Southern Electric
Generating Company.
</TABLE>
Exhibit 23
August 13, 1999
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption
"Experts" in the Prospectus Supplement of Alabama Power Company (the "Company")
dated August 13, 1999, relating to $250,000,000 aggregate principal amount of
Series K 7.125% Senior Notes due August 15, 2004, and to the filing hereof with
the Securities and Exchange Commission as an exhibit to the Company's Current
Report on Form 8-K dated August 13, 1999.
Very truly yours,
/s/Balch & Bingham LLP
