Exhibit 1
Alabama Power Capital Trust III
(a Delaware Statutory Business Trust)
1,000 Capital Auction Preferred Securities
(Liquidation Amount $50,000 Per Preferred Security)
UNDERWRITING AGREEMENT
February 18, 1999
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alabama Power Capital Trust III (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(ss.) 3801 et seq.), and Alabama Power Company, an Alabama corporation (the
"Company" and, together with the Trust, the "Offerors"), confirm their agreement
(the "Agreement") with you and the other Underwriter named in Schedule I hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom you are
acting as representative (in such capacity, you shall hereinafter be referred to
as the "Representative"), with respect to the sale by the Trust and the purchase
by the Underwriters, acting severally and not jointly, of the respective numbers
of Capital Auction Preferred Securities (liquidation amount $50,000 per
preferred security) of the Trust ("Preferred Securities") set forth in Schedule
I. The Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to a Preferred Securities Guarantee Agreement (the
"Guarantee Agreement") between the Company and The Chase Manhattan Bank, as
trustee (the "Guarantee Trustee"). The Preferred Securities and the related
Guarantee are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the
Trust to purchase the $51,550,000 aggregate principal amount of Series C Junior
Subordinated Notes (the "Junior Subordinated Notes") to be issued by the
Company. The Preferred Securities and the Common Securities will be issued
pursuant to the Amended and Restated Trust Agreement (the "Trust Agreement"),
among the Company, as Depositor, Xxxxxxx X. Xxxxx, Xx. and J. Xxxxx XxXxxxx (the
"Administrative Trustees"), Chase Manhattan Bank Delaware, a Delaware banking
corporation (the "Delaware Trustee") and The Chase Manhattan Bank, a New York
banking corporation (the "Property Trustee" and, together with the Delaware
Trustee and the Administrative Trustees, the "Trustees"), as trustees, and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Junior Subordinated Notes will be issued pursuant to an indenture,
dated as of January 1, 1997 (the "Base Indenture"), between the Company and The
Chase Manhattan Bank, as trustee (the "Debt Trustee"), and a second supplemental
indenture to the Base Indenture (the "Supplemental Indenture," and together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Debt Trustee.
The Company and the Trust will enter into an Agreement as to
Expenses and Liabilities (the "Agreement as to Expenses and Liabilities")
pursuant to which the Company will guarantee to each person or entity to whom
the Trust may be indebted or liable, the full payment of such obligations. The
Company and the Trust will enter into an Auction Agent Agreement (the "Auction
Agent Agreement") with The Chase Manhattan Bank, as auction agent (the "Auction
Agent"), providing, among other things, that the Auction Agent will follow
certain auction procedures relating to the Preferred Securities.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to
each Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-67453,
000-00000-00, 333-67453-02, and 333-67453-03), in respect of the
Preferred Securities, the Guarantee, the Junior Subordinated Notes and
certain other securities (the "Registered Securities") has been
prepared and filed in accordance with the provisions of the Securities
Act of 1933 (the "1933 Act"), with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to you, and to you for each of the other
Underwriters, has been declared effective by the Commission in such
form (except that copies of the registration statement and any
post-effective amendment delivered to you for each of the other
Underwriters 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 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 Registered
Securities, 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; the Prospectus
as supplemented by a preliminary prospectus supplement dated February
15, 1999 relating to the Preferred Securities, the Guarantee and the
Junior Subordinated Notes, including any documents incorporated by
reference therein as of such date, being hereinafter called the
"Preliminary Supplemented Prospectus"; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the
Preferred Securities, the Guarantee and the Junior Subordinated 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 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 neither the Trust nor the Company makes any
warranty or representation to any Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter through you expressly for use in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus; or (B)
any information set forth in the Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus under the caption "Book-Entry-Only
Issuance -- The Depository Trust Company".
(c) The Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the applicable provisions of the 1933 Act
and the rules and regulations of the Commission thereunder and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Registration Statement, the Prospectus and, to the extent not used
to confirm sales of the Securities, the Preliminary Supplemented
Prospectus, comply, 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 Trust Indenture Act of
1939, as amended (the "1939 Act") 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, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus, and (iii) 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 neither the Company
nor the Trust makes any 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 1939 Act, (B) statements or omissions made in the
Registration Statement, the Preliminary Supplemented Prospectus, or the
Final Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter expressly for use therein or (C) any information set forth
in the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Book-Entry Only Issuance -- The
Depository Trust Company".
(e) 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.
(f) 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.
(g) 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 not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust (it being
understood that any such change involving only the Company shall not
constitute such a change with respect to the Trust).
(h) 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, the Trust Agreement, the
Indenture and the Guarantee Agreement and to purchase, own, and hold
the Common Securities issued by the Trust and to issue and deliver the
Junior Subordinated Notes and the Guarantee.
(i) The Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Registration Statement and Final Supplemented Prospectus and to
enter into and perform its obligations under this Agreement and the
Trust Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Supplemented Prospectus; the Trust is and will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Final
Supplemented Prospectus, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the Trust and will conform in all material
respects to all statements relating thereto contained in the Final
Supplemented Prospectus; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and, on the Closing Date
(as defined herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(k) This Agreement has been duly authorized, executed and delivered by each
of the Offerors.
(l) The Trust Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company
and the Administrative Trustees, and assuming due authorization,
execution and delivery of the Trust Agreement by the Delaware Trustee
and the Property Trustee, the Trust Agreement will, on the Closing
Date, be a valid and binding obligation of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees 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") and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus; and, on the Closing Date, the Trust Agreement will have
been duly qualified under the 1939 Act.
(m) The Guarantee Agreement, the Auction Agent Agreement and the Agreement
as to Expenses and Liabilities have 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 Guarantee Agreement, the Auction Agent Agreement and the Agreement
as to Expenses and Liabilities by the other respective parties thereto,
the Guarantee Agreement, the Auction Agent Agreement and the Agreement
as to Expenses and Liabilities 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 the Enforceability Exceptions,
and each of the Guarantee, the Guarantee Agreement, the Auction Agent
Agreement and the Agreement as to Expenses and Liabilities will conform
in all material respects to all statements relating thereto contained
in the Final Supplemented Prospectus; and, on the Closing Date, the
Guarantee Agreement will have been duly qualified under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; the
issuance of the Preferred Securities is not subject to preemptive or
other similar rights; (subject to the terms of the Trust Agreement)
holders of Preferred Securities will be entitled to the same limitation
of personal liability under Delaware law as extended to stockholders of
private corporations for profit.
(o) 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 Debt 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 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.
(p) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated 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.
(q) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(r) The Junior Subordinated Notes are subordinated and junior in right of
payment to all "Senior Indebtedness" (as defined in the Indenture) of
the Company.
(s) Each of the Administrative Trustees of the Trust is an employee of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(t) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is and, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(u) The execution, delivery and performance by the Offerors of this
Agreement, the Auction Agent Agreement, the Preferred Securities and
the Common Securities, by the Company of the Indenture, the Junior
Subordinated Notes, the Guarantee Agreement, the Trust Agreement, the
Guarantee and the Agreement as to Expenses and Liabilities and the
consummation by the Offerors of the transactions contemplated herein
and therein and compliance by the Offerors with their respective
obligations hereunder and thereunder shall have been duly authorized by
all necessary action (corporate or otherwise) on the part of the
Offerors and do not and will not result in any violation of the charter
or bylaws of the Company, or the Trust Agreement or related Certificate
of Trust 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 Trust or the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Trust or the Company is a party or
by which either of them may be bound or to which any of their
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially
adverse to the Trust or 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 Trust or the Company, or any of their
respective properties.
(v) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions 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
Trust Agreement, the Guarantee Agreement and 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 UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at the price per security
set forth in Schedule II hereto, the number of Preferred Securities set forth in
Schedule I opposite the name of such Underwriter, plus any additional number of
Preferred Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date (as defined below) to the Representative, for
the accounts of the several Underwriters, a commission per Preferred Security as
set forth on Schedule II for the Preferred Securities to be delivered by the
Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 1301
Avenue of the Americas, New York, New York at 9:30 a.m., New York time, on
February 25, 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, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Trust by wire transfer in federal funds at the Closing Date, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. Certificates
for the Preferred Securities shall be in such denominations and registered in
such names as the Representative may request in writing at least two business
days before the Closing Date. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Preferred Securities which
it has agreed to purchase. The Representative, individually and not as
Representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities to be purchased by
any Underwriter whose check has not been received by the Closing Date, but such
payment shall not relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representative not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS.
Each of the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, 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, 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 Offerors will deliver to the Underwriters sufficient conformed
copies of the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case without exhibits)
for distribution to each Underwriter and, from time to time, as many
copies of the Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 0000 Xxx.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Preliminary Supplemented Prospectus and
Final Supplemented Prospectus relating to the offering of the Preferred
Securities 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 Preferred Securities by an Underwriter
or dealer, any event relating to or affecting the Company, or of which
the Company shall be advised in writing by the Underwriters, 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
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
as the case may be, in order to make the Preliminary Supplemented
Prospectus or 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
Preliminary Supplemented Prospectus or 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 Preferred
Securities 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
Preliminary Supplemented Prospectus or Final Supplemented Prospectus
which will supplement or amend the Preliminary Supplemented Prospectus
or 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 Preliminary
Supplemented Prospectus or 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 Preferred Securities 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 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 Xxxxx
Xxxxxxxxxx LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities and, to the extent required or
advisable, the Guarantee and the Junior Subordinated 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 neither of the Offerors shall 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 earning statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 0000 Xxx) 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, neither the
Trust nor the Company will, 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 Preferred Securities, any
security convertible into or exchangeable into or exercisable for
Preferred Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes or
equity securities substantially similar to the Preferred Securities
(except for the Junior Subordinated Notes and the Preferred Securities
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 incident to the performance
of each Offeror's 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 Preferred Securities to the
Underwriters, (iii) the fees and disbursements of the Company's, the Auction
Agent's and the Trust's counsel and accountants, (iv) the qualification of the
Preferred Securities and, to the extent required or advisable, the Guarantee and
the Junior Subordinated 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 Preliminary
Supplemented Prospectus, the Final Supplemented Prospectus, and any amendments
or supplements thereto, (vi) the 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 Debt Trustee, including the fees and disbursements of counsel for the Debt
Trustee in connection with the Indenture and the Junior Subordinated Notes, (ix)
the fees and expenses of the Auction Agent, the Delaware Trustee, the Property
Trustee and the Guarantee Trustee, including the fees and disbursements of
counsel for the Delaware Trustee in connection with the Trust Agreement and the
related Certificate of Trust, (x) the fees and disbursements of Delaware counsel
to the Trust, (xi) any fees payable in connection with the rating of the
Preferred Securities and Junior Subordinated Notes, (xii) the fees and expenses
incurred in connection with the listing, if applicable, of the Preferred
Securities and the Junior Subordinated Notes on the New York Stock Exchange,
(xiii) the cost and charges of any transfer agent or registrar and (xiv) the
cost of qualifying the Preferred Securities 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 Preferred Securities, including fees and disbursements of
their counsel, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for
the Preferred Securities 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
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
and any such supplement, shall have been filed in the manner and within
the time period required by Rule 424.
(b) Orders of the Alabama Commission and 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 Xxxxx & Xxxxxxx LLP,
general counsel for the Company, substantially in the form
attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of Xxxxxxxx Xxxxxxx LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule III-B.
(3) The opinion, dated the Closing Date, of Xxxxxxxx, Xxxxxx &
Finger P.A., Delaware counsel to the Trust, substantially in
the form attached hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of Xxxxxxxx, Xxxxxx &
Finger P.A., Delaware counsel to Chase Manhattan Bank
Delaware, as Delaware Trustee under the Trust Agreement,
substantially in the form attached hereto as Schedule V.
(5) The opinion, dated the Closing Date, of Cravath, Swaine &
Xxxxx, counsel to the Auction Agent, the Property Trustee, the
Guarantee Trustee and the Debt Trustee, substantially in the
form attached hereto as Schedule VI.
(6) The favorable opinion, dated as of the Closing Date, of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, substantially in
the form attached hereto as Schedule VII.
(7) 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 Trust or
the Company, whether or not arising in the ordinary course of
business, and the Representative shall have received a
certificate of the President or any Vice President of the
Company and a certificate of the Administrative Trustees of
the Trust, 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 Trust
and the Company have complied with all agreements and
satisfied all conditions on their respective parts 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.
(8) On this Closing Date, the Representative shall have received
from Xxxxxx Xxxxxxxx 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 a
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 Xxxxxx
Xxxxxxxx LLP make no representations as to the sufficiency of
such procedures for the Underwriters' purposes), nothing came
to their attention that caused them to believe that: (1) any
material modifications should be made to the unaudited
condensed financial statements, if any, incorporated in the
Prospectus, for them to be in conformity with generally
accepted accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the
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 Dividend Requirements (Pre-Income Tax
Basis) set forth in the Prospectus do not agree with the
amounts set forth in or derived from the unaudited financial
statements for the same period or were not determined on a
basis substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the 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 on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges
and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis) 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.
(9) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Preferred Securities 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 Offerors,
in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in
form and substance to the Representative and Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters.
(10) On the Closing Date, the Representative shall receive a
certificate of an officer of the Company certifying that a
Special Event (as defined in the Final Supplemented
Prospectus) shall not have occurred and be continuing.
(11) That no amendment or supplement to the Registration Statement,
the Preliminary Supplemented Prospectus 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 0000 Xxx) shall be unsatisfactory
in form to Xxxxx Xxxxxxxxxx LLP or shall contain information
(other than with respect to an amendment or supplement
relating solely to the activity of any Underwriter or
Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of
the Preferred Securities.
(12) The Company and the Trust shall have performed their
respective 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 Representative by notice to the Offerors 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 OFFERORS.
The obligations of the Offerors 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
Underwriters. 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 Offerors jointly and severally agree 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 the
Underwriters 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, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus or, if
the Offerors 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,
the Preliminary Supplemented 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, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or through the
Representative on behalf of, any Underwriter for use therein and except
that this indemnity with respect to the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus, if the Offerors 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 Preferred Securities to any person if a copy of the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented
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,
the Preliminary Supplemented 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 Offerors
on account of its agreement contained in this Section 7, to notify the
Offerors in writing of the commencement thereof but the omission of
such Underwriter so to notify the Offerors of any such action shall not
release the Offerors 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 the Underwriters or any such person
controlling such Underwriters and such Underwriter shall notify the
Offerors of the commencement thereof as above provided, the Offerors
shall be entitled to participate in (and, to the extent that they shall
wish, including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect 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 controlling person unless the employment of such
counsel has been authorized in writing by the Offerors 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) The Company agrees to indemnify the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under
Section 7(a) hereunder.
(c) 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, the Trust and each other
Underwriter and each person, if any, who controls the Offerors or any
such other Underwriter 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 Offerors 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, the Preliminary Supplemented 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 Offerors by, or through the Representative
on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors 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 Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the Offerors,
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 to New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, (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 judgement of
the Representative, the marketability of the Preferred Securities shall have
been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Offerors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable to perform their
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, for the reasonable fees and disbursements
of Xxxxx Xxxxxxxxxx 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 Preferred Securities
and, upon such reimbursement, the Offerors shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Preferred Securities that it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of 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:
(a) if the number of Defaulted Securities does not exceed 10% of the
Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Preferred
Securities, 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 Offerors 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 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxx Xxxxxx, Registration; notices to the Offerors shall be directed
to the Company at 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention:
Corporate Secretary.
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Trust, 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 Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees 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 Trust and
the Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By:
Title:
ALABAMA POWER CAPITAL TRUST III
By: Alabama Power Company, as Depositor
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXXX, SACHS & CO.
By:
Xxxxxxx, Xxxxx & Co.
For itself and as Representative of the other Underwriter named in Schedule I
hereto.
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Xxxxxxx, Sachs & Co. 750
Xxxxxx Brothers Inc. 250
TOTAL 1,000
SCHEDULE II
Initial public offering price per Preferred Security
(and purchase price per security to be paid by the
several Underwriters): $50,000.
Compensation per Preferred Security to be paid by the
Company to the several Underwriters in respect of
their commitments: $437.50 per Preferred Securities.
Schedule III-A
[Letterhead of XXXXX & XXXXXXX LLP]
___________ __, 1999
Xxxxxxx, Sachs & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alabama Power Capital Trust III
____Capital Auction Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the
"Company") in connection with (i) its formation of Alabama Power Capital Trust
III (the "Trust"), a Delaware statutory business trust, pursuant to the Amended
and Restated Trust Agreement, dated as of __________ __, 1999, among the Company
and the trustees named therein (the "Trust Agreement"); (ii) the Trust's
issuance and sale of Capital Auction Preferred Securities evidencing
approximately a 97% undivided interest in the assets of the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately a 3% undivided interest in the assets of the
Trust; (iv) the Company's issuance and sale to the Trust of approximately
$_________ of its Series C ____% Junior Subordinated Notes (the "Notes") due
________ __, 20__ pursuant to a Subordinated Note Indenture, dated as of
___________ __, 199_, by and between the Company and The Chase Manhattan Bank,
as trustee, as supplemented by the Second Supplemental Indenture, dated as of
________ __, 1999 (collectively, the "Indenture"); (v) the Agreement as to
Expenses and Liabilities dated as of _____ 1, 1999 between the Company and the
Trust (the "Agreement as to Expenses and Liabilities"); (vi) the Auction Agent
Agreement, dated as of ____ __, 1999, among the Company, the Trust and The Chase
Manhattan Bank, as auction agent (the "Auction Agent Agreement") and (vii) its
issuance of a guarantee (the "Guarantee") of the Preferred Securities pursuant
to a Guarantee Agreement, dated as of _________ __, 199_ (the "Guarantee
Agreement"), between the Company and The Chase Manhattan Bank, as trustee. The
Preferred Securities are being sold to you today pursuant to the terms of an
Underwriting Agreement, dated February __, 1999, among the Company, the Trust
and the underwriters named in Schedule I thereto (the "Underwriters") for whom
you are acting as Representative (the "Underwriting Agreement"). This opinion is
being delivered to you as Representative 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, as amended, on Form S-3 (Nos. ________, _________,
________ and ________) pertaining to the Preferred Securities (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 February __, 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, 1997, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended and the Current Reports on
Form 8-K of the Company dated (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
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 Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth.
The Trust Agreement, the Indenture, the Guarantee Agreement, the
Auction Agent Agreement and the Underwriting Agreement are herein referred to as
the "Agreements."
We are of the opinion, relying as to matters of New York law
upon the opinion dated hereof rendered to you by Xxxxx Xxxxxxxxxx LLP, and as to
matters of Delaware law upon the opinion dated hereof rendered to you by
Xxxxxxxx, Xxxxxx & Finger P.A., 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 delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities have been obtained; such orders are sufficient for
the issuance and the delivery of the Notes and the Guarantee
and the issuance and sale of the Preferred Securities; the
issuance and delivery of the Notes and the Guarantee and the
issuance and sale of the Preferred Securities 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 delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities 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 Chase Manhattan Bank, as trustee
thereunder, 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.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by The Chase Manhattan Bank,
as trustee thereunder, in the manner provided in the Indenture
and delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed and
delivered by the Company and 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 Guarantee 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 Guarantee Agreement conforms as to legal matters
in all material respects to the description thereof in the
Final Supplemented Prospectus.
7. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization,
execution and delivery by the trustees named therein, the
Trust Agreement constitutes a valid and binding obligation 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 Trust
Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to
or affecting creditor's rights generally, and by general
principles of equity.
8. Each of the Indenture, the Guarantee Agreement and the Trust
Agreement has been duly qualified under the Trust Indenture
Act of 1939, as amended.
9. Neither the Company nor the Trust is and, after giving effect
to the offering and sale of the Preferred Securities, will be
an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended.
10. The statements and legal conclusions contained in the Final
Supplemented Prospectus under the caption "Certain Federal
Income Tax Considerations" are correct in all material
respects.
11. To the best of our knowledge, all of the issued and
outstanding Common Securities of the Trust are directly owned
by the Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right.
12. The execution, delivery and performance by the Trust of the
Underwriting Agreement and the Auction Agent Agreement; the
issuance by the Trust of the Preferred Securities and the
Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the
Trust with its obligations thereunder do not and will not
result in any violation of the Trust Agreement or related
Certificate of Trust, 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 Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to us to which the Trust is a
party or by which it may be bound or to which any of its
properties may be subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise), of the Trust), (B) any existing applicable law,
rule or regulation applicable to the Trust (other than the
securities or blue sky laws of any jurisdiction, as to which
we express no opinion) or (C) any judgment, order or decree
known to us 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 Trust or any of its properties; and the
Trust is not a party to or otherwise bound by any agreement
other than those which are exhibits (or included in exhibits)
to the Registration Statement.
13. The Common Securities have been duly authorized by the Trust
Agreement and (subject to the terms of the Trust Agreement),
when issued and delivered by the Trust to the Company against
payment therefor as described in the Final Supplemented
Prospectus, will be validly issued and (subject to the terms
of the Trust Agreement) fully paid and non-assessable
beneficial interests in the assets of the Trust; and the
issuance of the Common Securities is not subject to preemptive
or other similar rights.
14. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust
Agreement), when delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable beneficial interests in
the assets of the Trust; the holders of the Preferred
Securities will (subject to the terms of the Trust Agreement)
be entitled to the same limitation of personal liability under
Delaware law as is extended to stockholders of private
corporations for profit organized under the general
corporation law of the State of Delaware; the issuance of the
Preferred Securities is not subject to preemptive or other
similar rights; and the Preferred Securities conform as to
legal matters in all material respects to the description
thereof in the Final Supplemented Prospectus.
15. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and
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
Agreement as to Expenses and Liabilities may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Agreement as to Expenses and
Liabilities conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented
Prospectus.
16. The Auction Agent Agreement has been duly authorized, executed
and delivered by the Company.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6, 10, 14 and 15 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 Xxxxxx Xxxxxxxx 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 February __, 1999, 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 its effective date
(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
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.
We are members of the State Bar of Alabama, and we do not
express any opinion herein concerning any law other than the law of the State of
Alabama and the federal law of the United States, and, to the extent set forth
herein, the laws of the States of Delaware 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, except that Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP
may rely on this opinion in giving their opinions pursuant to Section 5(c) of
the Underwriting Agreement insofar as such opinion relates to matters of Alabama
law.
Yours very truly,
XXXXX & XXXXXXX LLP
Schedule III-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
__________ __, 199_
Xxxxxxx, Sachs & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Alabama Power Capital Trust III
Capital Auction Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the
"Company") in connection with (I) its formation of Alabama Power Capital Trust
III, a Delaware statutory business trust (the "Trust"), pursuant to the Amended
and Restated Trust Agreement dated as of __________, 199_ among the Company and
the trustees named therein (the "Trust Agreement"); (II) the Trust's issuance
and sale of Capital Auction Preferred Securities evidencing approximately 97%
undivided beneficial interests in the assets of the Trust (the "Preferred
Securities"); (III) the Trust's issuance and sale of Common Securities
evidencing approximately 3% undivided beneficial interests in the assets of the
Trust; (IV) the Company's issuance and sale to the Trust of $___________
aggregate principal amount of its Series C ___% Junior Subordinated Notes due
________ __, 20__ (the "Notes") pursuant to a Subordinated Note Indenture dated
as of __________, 199_, by and between the Company and The Chase Manhattan Bank,
as trustee, as supplemented by the Second Supplemental Indenture dated as of
__________ __, 199_ (collectively, the "Indenture"); (V) the Agreement as to
Expenses and Liabilities dated as of ____ 1, 1999 between the Company and the
Trust (the "Agreement as to Expenses and Liabilities"); (VI) the Auction Agent
Agreement, dated as of _____, 1999, between the Company, the Trust and The Chase
Manhattan Bank, as auction agent (the "Auction Agent Agreement") and (VII) its
issuance of a guarantee (the "Guarantee") of the Preferred Securities pursuant
to a Guarantee Agreement dated as of __________, 199_ (the "Guarantee
Agreement") between the Company and The Chase Manhattan Bank, as trustee. The
Preferred Securities are being sold to you today pursuant to the terms of an
Underwriting Agreement dated __________, 199_ (the "Underwriting Agreement"),
among the Company, the Trust and the underwriters named in Schedule I thereto
(the "Underwriters") for whom you are acting as Representative. This opinion is
being delivered to you as Representative pursuant to Section 5(c)(2) of the
Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meaning set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. ________, ________, ________ and
________) filed by the Company and the Trust under the Securities Act of 1933,
as amended (the "Act"), as it became effective under the Act; and the prospectus
of the Company and the Trust dated _______ ___, 199_, as supplemented by a final
prospectus supplement dated __________, 199_ (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, 1997,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended and the
Current Reports on Form 8-K of the Company dated (the "Exchange Act Documents"),
each as filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
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 Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, the Indenture, the Guarantee Agreement,
the Auction Agent Agreement 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 Xxxxx &
Xxxxxxx LLP, relying as to matters of New York law upon the opinion dated the
date hereof rendered to you by Xxxxx Xxxxxxxxxx LLP and as to matters of
Delaware law upon the opinion dated the date hereof rendered to you by Xxxxxxxx,
Xxxxxx & Finger P.A., 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 delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 Debt
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.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed and delivered by
the Company and 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 Guarantee Agreement 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 Guarantee Agreement conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the Trust Agreement has
been duly qualified under the Trust Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
9. The Preferred Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust; and the Preferred Securities conform as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
10. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and 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 Agreement as to Expenses and Liabilities
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Agreement as to Expenses and
Liabilities conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
11. The Auction Agent Agreement has been duly authorized,
executed and delivered by the Company.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6, 9 and 10 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 Xxxxxx
Xxxxxxxx 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 its effective date (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 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.
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 Delaware 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,
XXXXXXXX XXXXXXX LLP
Schedule IV
[Letterhead of XXXXXXXX, XXXXXX & FINGER]
__________ __, 199_
Xxxxxxx, Xxxxx & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alabama Power Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Alabama Power
Company, an Alabama corporation (the "Company"), and Alabama Power Capital Trust
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. This opinion is being furnished to you pursuant to Section 5(c)(3)
of the Underwriting Agreement, dated __________, 199_ (the "Underwriting
Agreement"), among the Company, the Trust, Xxxxxxx, Sachs & Co. and the other
Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated November 27, 1996 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on November 27, 1996;
(b) The Trust Agreement of the Trust, dated as of _________, 199_, among the
Company and the trustees of the Trust named therein, as amended and restated
pursuant to an Amended and Restated Trust Agreement, (including Exhibits C and E
thereto) dated as of ________ __, 199_, among the Company, the trustees of the
Trust named therein (the "Trustees"), and the holders, from time to time, of the
undivided beneficial interests in the assets of the Trust (collectively, the
"Trust Agreement");
(c) The Underwriting Agreement;
(d) The Prospectus, dated __________ __, 199_ (the "Prospectus"), as
supplemented by the Prospectus Supplement dated __________, 199_ (the
"Prospectus Supplement"), relating to the Capital Auction Preferred Securities
of the Trust representing preferred undivided beneficial interests in the assets
of the Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities");
(e) A Certificate of Good Standing for the Trust, dated ___________ __, 199_,
obtained from the Secretary of State; and
(f) The Auction Agent Agreement, dated _______ __, 1999, among the Trust, the
Company and The Chase Manhattan Bank, as auction agent (the "Auction Agent
Agreement").
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business
Trust Act, 12 Del. C. ss. 3801, et seq. (the "Business Trust
Act"), and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of
the Trust as a business trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property
and conduct its business, all as described in the Prospectus
and the Prospectus Supplement, (ii) execute and deliver, and
to perform its obligations under, the Underwriting Agreement
and the Auction Agent Agreement, (iii) issue and perform its
obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided
beneficial interests in the assets of the Trust. Subject to
the qualifications set forth in paragraph 6 below, the
Preferred Securities are fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
Under the Business Trust Act and the Trust Agreement, the
Trust Securities are not subject to any preemptive or other
similar rights.
4. Under the Business Trust Act and the Trust Agreement, the
Underwriting Agreement and the Auction Agent Agreement have
been duly authorized by all necessary trust action on the part
of the Trust.
5. No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is
required to be obtained by the Trust solely as a result of the
issuance and sale of the Preferred Securities.
6. The Persons to whom Preferred Securities are to be issued by
the Trust (collectively, the "Preferred Security Holders"), as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the
Trust Agreement, to (i) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred
Securities Certificates and (ii) provide security or indemnity
in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust
Agreement. We also note that the Company, in its capacity as
Depositor and not in its capacity as a Holder, has undertaken
certain payment obligations as set forth in the Trust
Agreement.
7. The Trust Agreement constitutes a valid and binding obligation
of the Company, and is enforceable against the Company, in
accordance with its terms.
8. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the
transactions contemplated by the Underwriting Agreement, the
Trust Agreement and the Auction Agent Agreement and compliance
by the Trust with its obligations thereunder do not violate
(i) any of the provisions of the Certificate or the Trust
Agreement or (ii) any applicable Delaware law or Delaware
administrative regulation.
9. We have reviewed the statements in the Prospectus under the
caption "The Trusts" and the statements in the Prospectus
Supplement under the caption "Alabama Power Capital Trust III"
and, insofar as they contain statements of Delaware law, such
statements are fairly presented.
The opinion expressed in paragraph 7 above is subject, as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions related to indemnification. In
addition, in connection with the opinion expressed in paragraph 7 above, to the
extent that Section [10.05] of the Trust Agreement provides that the Trust
Agreement is governed by New York law, we express no opinion concerning Section
[10.05] of the Trust Agreement or the effect of Section [10.05] of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of Xxxxx & Xxxxxxx LLP, Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP
relying as to matters of Delaware law upon this opinion in connection with
opinions to be rendered by them pursuant to the Underwriting Agreement. Except
as stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
XXXXXXXX, XXXXXX & FINGER
Schedule V
[Letterhead of Xxxxxxxx, Xxxxxx & Finger]
__________ __, 199_
Xxxxxxx, Xxxxx & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Alabama Power Capital Trust III
c/o Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Re: Alabama Power Capital Trust III
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank Delaware, a
Delaware banking corporation ("CMBD"), in connection with the formation of
Alabama Power Capital Trust III, a business trust existing under the laws of the
State of Delaware (the "Trust") pursuant to the Trust Agreement, dated as of
__________, 199_, by and between CMBD, not in its individual capacity but solely
as trustee (the "Trustee"), and Alabama Power Company (the "Company"), as
amended and restated pursuant to an Amended and Restated Trust Agreement dated
as of __________ __, 199_, among the Company, the Trustee, the other trustees
named therein and the holders from time to time of the undivided beneficial
interests in the assets of the Trust (collectively, the "Trust Agreement"). This
opinion is being delivered to you pursuant to Section 5(c)(4) of the
Underwriting Agreement, dated as of ___________ __, 199_ (the "Underwriting
Agreement"), among Xxxxxxx, Xxxxx & Co., the several Underwriters named in
Schedule I thereto, Alabama Power Company and the Trust, pursuant to which the
Capital Auction Preferred Securities of the Trust will be sold. All capitalized
terms used herein and not otherwise defined shall have the respective meanings
set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the corporations or entities
referred to herein as we have deemed necessary or appropriate for the purposes
of the opinions expressed herein. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon the representations and
warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. CMBD is duly incorporated, validly existing in good
standing as a banking corporation under the laws of
the State of Delaware and has the power and authority
to execute, deliver and perform its obligations under
the Trust Agreement.
2. The Trust Agreement has been duly authorized,
executed and delivered by CMBD and constitutes a
legal, valid and binding obligation of CMBD,
enforceable against CMBD, in accordance with its
terms.
3. The execution and delivery of, and performance of the
terms of, the Trust Agreement by CMBD, does not
conflict with or constitute a breach of, or default
under, the charter or by-laws of CMBD.
4. No consent, approval or authorization of, or
registration, declaration or filing with, any court
or governmental agency or body having jurisdiction in
the premises is required under Delaware law for the
execution, delivery or performance by CMBD of the
Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice law in the State of Delaware and
we do not hold ourselves out as being experts on the law of
any other jurisdiction. The foregoing opinions are limited to
the laws of the State of Delaware and the federal laws of the
United States of America governing the banking and trust
powers of CMBD (except that we express no opinion with respect
to (i) state securities or blue sky laws and (ii) federal
securities laws, including, without limitation, the Securities
Act of 1933, as amended, the Securities Exchange Act of 1934,
as amended, the Trust Indenture Act of 1939, as amended, and
the Investment Company Act of 1940, as amended), and we have
not considered and express no opinion on the laws, rules and
regulations of any other jurisdiction.
(B) The foregoing opinions regarding enforceability are subject to
(i) applicable bankruptcy, insolvency, moratorium,
receivership, reorganization, fraudulent conveyance and
similar laws relating to and affecting the rights and remedies
of creditors generally, (ii) principles of equity (regardless
of whether considered and applied in a proceeding in equity or
at law), and (iii) the effect of federal or state securities
laws on the enforceability of provisions relating to
indemnification or contribution.
(C) We have assumed the due authorization, execution and delivery
by each of the parties thereto, other than CMBD, of the Trust
Agreement, and that each of such parties has the full power,
authority and legal right to execute, deliver and perform such
document.
(D) We have assumed that all signatures (other than those of CMBD)
on documents examined by us are genuine, that all documents
submitted to us as originals are authentic, and that all
documents submitted to us as copies or specimens conform with
the originals, which facts we have not independently verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
XXXXXXXX, XXXXXX & FINGER
Schedule VI
[Letterhead of Cravath, Swaine & Xxxxx]
__________ __, 199_
Xxxxxxx, Sachs & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Alabama Power Capital Trust III
c/o Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Alabama Power Company
Alabama Power Capital Trust III
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Subordinated Note Indenture, dated as of
________ ______, 199_, as heretofore supplemented (the "Original Indenture"),
between Alabama Power Company (the "Company") and the Bank, as Trustee, (b) the
Second Supplemental Indenture, dated as of ___________ (together with the
Original Indenture, herein called the "Indenture"), between the Company and the
Bank, as Trustee, (c) the Guarantee Agreement, dated as of __________ ______,
199_ (the "Guarantee Agreement"), between the Company, as Guarantor, and the
Bank, as Trustee, and (d) the Amended and Restated Trust Agreement, dated as of
_________ ______, 199_ (the "Trust Agreement") among the Company, the Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and
Xxxxxxx X. Xxxxx, Xx. and J. Xxxxx XxXxxxx, as Administrative Trustees, and (e)
the Auction Agent Agreement, dated as of February __, 199 (the "Auction Agent
Agreement"), among Alabama Power Capital Trust III, the Company and the Bank, as
Auction Agent.
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, the Guarantee
Agreement, the Trust Agreement, the Auction Agent Agreement 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,
the Guarantee Agreement and the Trust Agreement, has duly
executed and delivered the Indenture, the Guarantee Agreement
and the Trust Agreement, and, insofar as the laws governing
the trust powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the other
parties thereto, each of the Indenture, the Guarantee
Agreement and the Trust Agreement 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 subject, as to enforceability,
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, the Guarantee Agreement and the Trust Agreement do
not conflict with or constitute a breach of the charter or
bylaws of the Bank;
(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, the
Guarantee Agreement or the Trust Agreement or the performance
by the Bank of its duties thereunder, except such as have been
obtained, taken or made; and
(v) the Bank has the corporate power and authority to execute,
deliver and perform its duties under the Auction Agent
Agreement, has duly executed and delivered the Auction Agent
Agreement, and, insofar as the laws governing the corporate
powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the other
parties thereto, the Auction Agent Agreement 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.
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 & XXXXX
Schedule VII
[Letterhead of XXXXX XXXXXXXXXX LLP]
__________ __, 199_
Xxxxxxx, Xxxxx & Co.,
as Representative
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alabama Power Capital Trust III
Capital Auction Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Alabama Power Company
(the "Company") of Alabama Power Capital Trust III (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and restated trust agreement
dated __________, 199_ among the Company and the trustees named therein (the
"Trust Agreement"); (ii) the Trust's issuance and sale of Preferred Securities
evidencing approximately a 97% undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of $___________ of its Series C ___%
Junior Subordinated Notes (the "Notes") pursuant to a Subordinated Note
Indenture dated as of __________, 199_, by and between the Company and
____________, as trustee, as supplemented by the Second Supplemental Indenture
dated as of __________ __, 199_ (collectively, the "Indenture"); (v) the
Agreement as to Expenses and Liabilities dated as of _____ 1, 1999 between the
Company and the Trust (the "Agreement as to Expenses and Liabilities"); and (vi)
the Company's issuance of a guarantee (the "Guarantee") of the Preferred
Securities pursuant to a Guarantee Agreement dated as of __________, 199_ (the
"Guarantee Agreement") between the Company and ____________________, as trustee,
we have acted as counsel to you and the other underwriters named in the Schedule
I (the "Underwriters") of the Underwriting Agreement dated __________ __, 199_,
among the Company, the Trust and the Underwriters for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(6) 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. 33- _______) pertaining to the
Preferred Securities (the "Registration Statement"), filed under the Securities
Act of 1933, as amended (the "Act"), and the prospectus dated , as supplemented
by a final supplemental prospectus 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, 1997, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended and the Current Reports on Form 8-K of the
Company, dated (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
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 Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, Indenture, Guarantee Agreement 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
laws of the State of Alabama upon the opinion of Xxxxx & Xxxxxxx LLP dated the
date hereof and addressed to you, as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Alabama upon the opinion
of Xxxxxxxx Xxxxxxx LLP dated the date hereof and addressed to you, and as to
all matters covered hereby which are governed by or dependent upon the laws of
the State of Delaware upon the opinion of Xxxxxxxx, Xxxxxx & Finger P.A., dated
the date hereof and addressed to you and a form of which is attached as Schedule
IV to the Underwriting Agreement, 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 delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities have been obtained; such orders are sufficient for
the issuance and delivery of the Notes and the Guarantee and
the issuance and sale of the Preferred Securities; the
issuance and delivery of the Notes and the Guarantee and the
issuance and sale of the Preferred Securities 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 delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities 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 Debt 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.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Debt Trustee in the
manner provided in the Indenture and delivered against payment
therefor, 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); the Notes
conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and 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 Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally or general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to
legal matters in all material respects to the description
thereof in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the Trust
Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended.
8. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust
Agreement), when delivered to and paid for the Underwriters
pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable beneficial interests in
the assets of the Trust; and the Preferred Securities conform
as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
9. The Agreement as to Expenses and Liabilities has been duly
authorized, executed and delivered by the Company and
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
Agreement as to Expenses and Liabilities may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principals of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Agreement as to Expenses and
Liabilities conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented
Prospectus.
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,
5, 6, 8 and 9 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 Xxxxxx Xxxxxxxx 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 its
effective date (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
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.
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 laws of the States of Delaware, Georgia and 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 Xxxxx & Xxxxxxx LLP and Xxxxxxxx Xxxxxxx LLP may rely on
this opinion in giving their opinions pursuant to Section 5(c) of the
Underwriting Agreement, insofar as such opinions relate to matters of New York
law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
