Exhibit 1
Preferred Securities
ALABAMA POWER CAPITAL TRUST I
(a Delaware Trust)
% Trust Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
______________, 1995
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alabama Power Capital Trust I (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. (section) 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 each of the other Underwriters 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 ___% Trust Preferred Securities (liquidation amount $25
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 the Preferred
Securities Guarantee Agreement (the "Guarantee Agreement"),
dated as of ___________ 1995, between the Company and
Chemical Bank, as trustee (the "Guarantee Trustee"). The
Preferred Securities and the related Guarantee are referred
to herein as the "Securities."
The Offerors have filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 33-____) for the registration
under the Securities Act of 1933, as amended (the "1933
Act") of (i) the Preferred Securities, (ii) the Guarantee,
and (iii) the Junior Subordinated Notes (as defined below).
Such registration statement, as it may have been amended
through the time the same first became effective, including
the financial statements, the documents incorporated or
deemed incorporated therein by reference, pursuant to Item
12 of Form S-3 under the 1933 Act, the exhibits thereto and
the information deemed to be part thereof pursuant to Rule
430A(b) of the Commission's General Rules and Regulations
under the 1933 Act (the "1933 Act Regulations"), being
herein called the "Registration Statement", the prospectus
included in the Registration Statement when the same became
effective that omits the information, if any, deemed to be a
part thereof pursuant to Rule 430A(b) of the 1933 Act
Regulations, being herein called the "Preliminary
Prospectus", and the prospectus, including the price and
terms of the offering, the interest rate, maturity date and
certain other information filed with the Commission in
accordance with Rule 430A and pursuant to Rule 424(b) of the
1933 Act Regulations, including all documents then
incorporated or deemed to have been incorporated therein by
reference, being herein called the "Prospectus." Any
reference herein to the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
12 or 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 the
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 documents filed under the 1934
Act, including the financial statements and schedules and
other information contained or incorporated by reference
therein, that are or are deemed to be incorporated by
reference in the Registration Statement, Preliminary
Prospectus or the Prospectus are herein called the
"Incorporated Documents."
The Offerors understand that the Underwriters
propose to make a public offering of the Securities as soon
as the Representative deems advisable after this Agreement
has been executed and delivered. The entire proceeds from
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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 $_____________ of _____% 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, dated as of __________, 1995 (the
"Trust Agreement"), among the Company, as Depositor,
_________________ and _______________ (the "Administrative
Trustees"), Chemical Bank Delaware, a Delaware banking
corporation (the "Delaware Trustee") and Chemical 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 _______________, 1995
(the "Base Indenture"), between the Company and Chemical
Bank, as trustee (the "Debt Trustee"), and a first
supplemental indenture to the Base Indenture, dated as of
___________, 1995 (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.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Offerors jointly and severally represent and warrant to each
Underwriter as follows:
(a) The Registration Statement as heretofore
filed with the Commission, a copy of which as so filed
has been delivered to the Underwriters, has been
declared effective.
(b) No order suspending the effectiveness of the
Registration Statement or otherwise preventing or
suspending the use of the Preliminary Prospectus or the
Prospectus has been issued by the Commission and is in
effect and no proceedings for that purpose are pending
before or, to the knowledge of the Company, threatened
by, the Commission. The Registration Statement, the
Preliminary Prospectus and the Prospectus comply in all
material respects, in form and in substance, with the
provisions of the 1933 Act, 1934 Act, the Trust
Indenture Act of 1939 (the "1939 Act"), the 1933 Act
Regulations, rules and regulations under the 1934 Act
(the "1934 Act Regulations"), and the rules and
regulations under the 1939 Act (the "1939 Act
Regulations"), and neither the Registration Statement
nor the Prospectus contains an untrue statement of a
material fact or omits to state a material fact
required to be stated therein or necessary to make the
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statements therein not misleading; all Incorporated
Documents subsequently filed with the Commission, will
comply in all material respects with the applicable
provisions of the 1934 Act and the 1934 Act Regulations
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 not
misleading, provided, that the foregoing representa-
tions and warranties in this subsection (b) shall not
apply to statements in or omissions from the Registra-
tion Statement or the Prospectus made in reliance upon
information furnished herein or in writing to the
Offerors by the Underwriters or on the Underwriters'
behalf for use in the Registration Statement or
Prospectus; and provided, further, that the foregoing
representations and warranties are given on the basis
that any statement contained in an Incorporated
Document shall be deemed to be modified or superseded
for purposes of the Registration Statement or
Prospectus to the extent that the statement has been
modified or superseded by any statement in a
subsequently filed Incorporated Document or in the
Registration Statement or Prospectus.
(c) 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.
(d) Since the respective dates as of which
information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein,
there has been no material adverse change in the
business, properties or financial condition of the
Company.
(e) Since the respective dates as of which
information is given in the Registration Statement and
the 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.
(f) The Company is a corporation duly organized
and existing under the laws of the State of Alabama,
and has due corporate authority to carry on the public
utility business in which it is engaged and to own and
operate the properties used by it in such business, to
enter into and perform its obligations under this
Agreement, the Trust Agreement, the Indenture and the
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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.
(g) 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
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 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.
(h) 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
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
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 equity.
(i) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(j) 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
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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 Prospectus; and, on the Closing Date, the Trust
Agreement will have been duly qualified under the 1939
Act.
(k) The Guarantee Agreement 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 Guarantee Agreement by the Guarantee
Trustee, the Guarantee Agreement 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 and the Guarantee
Agreement will conform in all material respects to all
statements relating thereto contained in the
Prospectus; and, on the Closing Date, the Guarantee
Agreement will have been duly qualified under the 1939
Act.
(l) 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 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 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.
(m) The Indenture has been duly authorized by the
Company and, on the Closing Date, will have been duly
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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 Prospectus; and, on the
Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(n) The issuance and delivery of the Junior
Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, 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
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 Prospectus.
(o) The Company's obligations under the Guarantee
(i) are subordinate and junior in right of payment to
all liabilities of the Company, except those obliga-
tions 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.
(p) The Junior Subordinated Notes are
subordinated and junior in right of payment to all
"senior indebtedness" (as defined in the Indenture) of
the Company.
(q) 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.
(r) 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").
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(s) The execution, delivery and performance by
the Offerors of this Agreement, the Trust Agreement,
the Preferred Securities, the Common Securities, the
Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee 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.
(t) 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 1933 Act Regulations; (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 Commission; and (E) such
consents, approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase of the Preferred Securities and the
distribution of the Preferred Securities by the
Underwriters.
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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, 1301 Avenue of
the Americas, New York, New, York] or at such other place as
shall be agreed upon by the Representative and the Trust, at
10:00 A.M., New York time, on ___________, 1995 (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
check or checks 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
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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 hereof by check or checks
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 Preliminary Prospectus and Prospectus
and of all amendments thereto (in each case without
exhibits) for distribution to each Underwriter and,
from time to time, as many copies of the Preliminary
Prospectus and 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 Prospectus and Prospectus relating to the
offering of the Preferred Securities in such quantities
as the Underwriters may from time to time reasonably
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request. If, during the period 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 Prospectus or Prospectus, as the
case may be, in order to make the Preliminary
Prospectus or 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 Prospectus or
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 Prospectus or Prospectus which will
supplement or amend the Preliminary Prospectus or
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 Prospectus or
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 Preliminary Prospectus or
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 1934 Act Regulations; provided, that
the Company shall not file such documents or amendments
without also furnishing copies thereof prior to such
filing to the Underwriters and Xxxxx Xxxxxxxxxx.
(c) The Offerors will endeavor, in cooperation
with the Underwriters, to qualify the Preferred
Securities and, to the extent required or advisable,
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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 earnings statement of the Company
(in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) 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) The Offerors will use best efforts to effect
the listing of the Preferred Securities on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the
Junior Subordinated Notes on the exchange on which the
Preferred Securities were then listed.
(f) During a period of 30 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).
SECTION 4. PAYMENT OF EXPENSES. The Company will
pay all expenses incident to the performance of each
Offerors 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
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Company'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
disbursments 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, of the Preliminary Prospectus, and of the
Prospectus and any amendments or supplements to the
Preliminary Prospectus or Prospectus, (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 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 of the Preferred
Securities and, if applicable, the Junior Subordinated Notes
on the New York Stock Exchange, and (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.
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 Prospectus or Prospectus, or any
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supplement thereto, is required pursuant to Rule 424,
the Preliminary Prospectus or Prospectus, and any such
supplement, shall have been filed in the manner and
within the time period required by Rule 424. The
Underwriters shall have received, prior to payment for
the Preferred Securities, the certificate required
under Section 5(c)(7) hereof.
(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, 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, 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, Delaware counsel to Chemical
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 Property
Trustee, the Guarantee Trustee and the Debt Trustee,
14
substantially in the form attached hereto as Schedule
VI.
(6) The favorable opinion, dated as of the
Closing Date, of Xxxxx Xxxxxxxxxx, 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 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 Chairman of the Board, 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 its part to
be performed or satisfied on or prior to the Closing
Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or, to the knowledge of the Company,
threatened by the Commission.
(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 1933
Act Regulations; (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 1934 Act
Regulations, 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
15
incorporated in the Prospectus and of the latest
available unaudited financial statements of the
Company, if any, as of a date subsequent to the date of
those incorporated in the Prospectus; and (iii) making
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters
regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not
constitute an audit performed in accordance with
generally accepted auditing standards and they would
not necessarily reveal matters of significance with
respect to the comments made in such letters, 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
16
(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 period subsequent to those set forth in (3)
above, which if available shall be set forth in such
letter do not agree with the amounts set forth in or
derived from the unaudited financial statements for the
same period or were not determined on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus.
(9) On the Closing Date, counsel for the
Underwriters shall have been furnished with such
documents and opinions as they may 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, counsel for the
Underwriters.
(10) On the Closing Date, the Preferred
Securities shall have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(11) A Special Event (as defined in the
Prospectus) shall not have occurred and be continuing.
(12) That no amendment or supplement to the
Registration Statement or the Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14
of the Exchange Act) shall be unsatisfactory in form to
Xxxxx Xxxxxxxxxx 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 market-
ability of the Preferred Securities.
(13) The Company and the Trust shall have
performed such of its obligations when and as provided
under this Agreement.
17
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 OBLIGATION 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, promptly after receipt of invoices
therefrom for any legal and other expenses reasonably
incurred by any Underwriter or controlling person in
investigating or defending or preparing to defend against
any such loss, claim, damage or liability, 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 a the Preliminary
Prospectus, or in the Registration Statement, or in the
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 the
Preliminary Prospectus or 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
18
made in such Registration Statement, Preliminary Prospectus
or Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for
use therein and except that this indemnity with respect to
the Preliminary Prospectus and the 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 or 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 Preferred Securities 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 or 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 Offerers on account of its agreement contained in this
Section 7, to notify the Offerors in writing of the
commencement thereof, provided, however, that the failure to
notify the Offerors shall not relieve it from any liability
which it may have to an Underwriter or controlling person
under this Section, except to the extent that it has been
materially prejudiced by such failure. 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 (i) the employment
of such counsel has been authorized in writing by the
Offerors in connection with defending such action or (ii)
the named parties to any such action (including any
impleaded parties) include both any Underwriter or any
controlling person and the Offerors, and any Underwriter or
any controlling person shall have been advised by its
counsel that a conflict of interest between the Offerors and
any Underwriter or any controlling person may arise (and the
Company's counsel shall have concurred with such advice) and
for this reason it is not desirable for the Company's
19
counsel to represent both the indemnifying party and the
indemnified party (it being understood, however, that the
Company shall not, in connection with any one such action or
separate but substantially similar or related actions in the
same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of
attorneys for any Underwriter or any controlling person
(plus any local counsel retained by any Underwriter or any
controlling person in their reasonable judgement) which firm
or firms shall be designated in writing by any Underwriter
or any controlling person. 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.
(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 as have been signed the
Registration Statement, 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 or the
Prospectus, or the Preliminary Prospectus or Prospectus 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.
Each Underwriter represents and warrants that its
commitment to buy the Preferred Securities will not result
in a violation of the financial responsibility requirements
of Rule l5c3-l under the 1934 Act.
20
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representationes, 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 has been generally
suspended, (ii) minimum or maximum ranges for prices shall
have been generally the 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 and for the out-of-pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparation 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
21
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 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 3
World Financial Center, New York, New York 10285, Attention:
__________________________; notices to the Trust, and the
Company shall be directed to them at 000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000, Attention: Art X. Xxxxxxx.
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
22
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.
23
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 I
By: Alabama Power Company, as
Depositor
_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
By:_________________________________________
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
24
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Xxxxxx Brothers Inc.
TOTAL
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $_______________
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $__________ for
Preferred Securities sold to certain
institutions; $__________ for Preferred
Securities sold to other purchasers
Schedule III-A
[Letterhead of XXXXX & XXXXXXX]
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
ALABAMA POWER CAPITAL TRUST I
___% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as general counsel to Alabama Power
Company (the "Company") in connection with (i) its formation
of Alabama Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of _________ ___, 1995
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 approximately
$___________ of its ___% Junior Subordinated Notes (the
"Notes") pursuant to a Subordinated Note Indenture dated as
of _______ ___, 1995, by and between the Company and
Chemical Bank, as trustee, as supplemented by the First
Supplemental Indenture dated as of ________ ___, 1995
(collectively, the "Indenture"); and (v) its issuance of a
guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Preferred Securities Guarantee Agreement dated
as of _______ ___, 1995 (the "Guarantee Agreement") between
the Company and Chemical Bank Delaware, as trustee. The
Preferred Securities are being sold to you today pursuant to
the terms of an Underwriting Agreement dated ______, 1995,
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 on Form S-3 (No. 33-
_______) pertaining to the Preferred Securities (the
"Registration Statement"), filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated
_______ ___, 1995 filed with the Securities and Exchange
Commission on _______ ___, 1995 (the "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, 1994, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 1995, June 30, 1995
and September 30, 1995 and the Current Report on Form 8-K of
the Company, dated February 15, 1995 (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, Indenture, Guarantee 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, and as to matters of Delaware law upon the
opinion dated hereof rendered to you by Xxxxxxxx, Xxxxxx &
Finger, 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
2
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 are in conformity 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
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; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Prospectus.
6. The Guarantee 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
3
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 conforms as to legal
matters in all material respects to the description thereof
in the 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, 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 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 Trust Agreement;
the issuance of the Preferred Securities and the Common
Securities; the consummation 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 of imposition or
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
4
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), or 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
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 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 Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 4 and 5
above and in the Prospectus in the second paragraph under
the caption "Experts". In the course of the preparation by
the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the
Company, with other counsel for the Company and with
representatives of Xxxxxx Xxxxxxxx LLP. Based upon our
5
examination of the Registration Statement, the Prospectus
and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i)
we are of the opinion that the Registration Statement, as of
its effective date, and the Prospectus, as of
, 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 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 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 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.
Yours very truly,
XXXXX & XXXXXXX
6
Schedule III-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
ALABAMA POWER CAPITAL TRUST I
___% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Alabama Power Company
(the "Company") in connection with (i) its formation of
Alabama Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of _________ ___, 1995
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
therein (the "Preferred Securities"); (iii) the Trust's
issuance and sale of Common Securities evidencing
approximately a 3% undivided interest in the Trust; (iv) its
issuance and sale to the Trust of approximately $___________
of its ___% Junior Subordinated Notes (the "Notes") pursuant
to a Subordinated Note Indenture dated as of _______ ___,
1995, by and between the Company and Chemical Bank, as
trustee, as supplemented by the First Supplemental Indenture
dated as of ________ ___, 1995 (collectively, the
"Indenture"); and (v) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement dated as of _______
___, 1995 (the "Guarantee Agreement") between the Company
and _____________, as trustee. The Preferred Securities are
being sold to you today pursuant to the terms of an
Underwriting Agreement dated ______, 1995, 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)(2) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (No. 33-
_______) pertaining to the Preferred Securities (the
"Registration Statement") filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated
_______ ___, 1995 filed with the Securities and Exchange
Commission on _______ ___, 1995 (the "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, 1994, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 1995, June 30, 1995
and September 30, 1995 and the Current Report on Form 8-K of
the Company, dated February 15, 1995 (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, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as to matters of Alabama
law upon the opinion dated hereof rendered to you by Xxxxx &
Xxxxxxx, general counsel for the Company, as to matters of
New York law upon the opinion dated hereof rendered to you
by Xxxxx Xxxxxxxxxx and as to matters of Delaware law upon
the opinion dated hereof rendered to you by Xxxxxxxx, Xxxxxx
& Finger, 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
2
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 are in conformity 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
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; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Prospectus.
6. The Guarantee 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
3
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 conforms as to legal
matters in all material respects to the description thereof
in the 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 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 Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 1, 4,
and 5 above. In the course of the preparation by the
Company of the Registration Statement, the Prospectus and
the Exchange Act Documents, we participated in conferences
with certain officers and employees of the Company, with
other counsel for the Company and with representatives of
Xxxxxx Xxxxxxxx LLP. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the
preparation of the Registration Statement, the Prospectus
and the Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date,
and the Prospectus, as of , 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
4
statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement,
the Prospectus or the Exchange Act Documents, and (ii)
nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective
date (including the Exchange Act Documents on file with the
Commission 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
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 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.
Yours very truly,
XXXXXXXX XXXXXXX LLP
5
Schedule IV
[Letterhead of XXXXXXXX, XXXXXX & FINGER]
__________ __, 1995
Xxxxxx Brothers Inc., as Representative
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alabama Power Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Alabama
Power Company, an Alabama corporation (the "Company"), and
Alabama Power Capital Trust I, 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
__________ __, 1995 (the "Underwriting Agreement"), among
the Company, the Trust, Xxxxxx Brothers Inc. 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 __, 1995 (the "Certificate"), as filed in the
office of the Secretary of State of the State of Delaware
(the "Secretary of State") on November __, 1995;
(b) The Trust Agreement of the Trust, dated as of
November __, 1995, 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 A,
C and E thereto), dated as of _________ __, 1995, 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;
Xxxxxx Brothers Inc.
_______________, 1995
Page 2
(d) The Prospectus, dated ____________ __, 1995 (the
"Prospectus"), relating to the __% 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"); and
(e) A Certificate of Good Standing for the Trust,
dated __________ __, 1995, obtained from the Secretary of
State.
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 (e) above. In particular, we have not reviewed any
document (other than the documents listed in paragraphs (a)
through (e) 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, 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, (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
Xxxxxx Brothers Inc.
_______________, 1995
Page 3
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 paragraphs 3
and 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 and the
Prospectus, and (vii) the issuance and sale of the Trust
Securities to the Trust Security Holders in accordance with
the Trust Agreement and the Prospectus. We have not
participated in the preparation of the Prospectus and assume
no responsibility for its contents.
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. section 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 power and authority to (i) own
property and conduct its business as described in the
Prospectus, (ii) execute and deliver, and to perform its
obligations under, the Underwriting Agreement, (iii) issue
and perform its obligations under the Trust Securities, and
(iv) perform its obligations under the Trust Agreement.
Xxxxxx Brothers Inc.
_______________, 1995
Page 4
3. The Trust Securities have been duly authorized by
the Trust Agreement and will be duly and validly issued and,
subject to the qualifications set forth in paragraph 6
below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, not subject to any
preemptive or other similar rights.
4. The Underwriting Agreement has been duly
authorized by the Trust.
5. No authorization, approval, consent or order of
any Delaware court or governmental authority or agency is
required to be obtained by the Trust solely in connection
with the issuance and sale of the Preferred Securities.
6. The Trust 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
Trust 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 Trust Securities
Certificates and the issuance of replacement Trust
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 and the Expense 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 and the Trust Agreement and compliance by the
Trust with its obligations thereunder will not violate (i)
any of the provisions of the Certificate or the Trust
Agreement or (ii) any applicable Delaware law or
administrative regulation.
9. We have reviewed the statements in the Prospectus
under the caption "Alabama Power Capital Trust I" and,
Xxxxxx Brothers Inc.
_______________, 1995
Page 5
insofar as it contains 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, and (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).
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,
Xxxxxxxx Xxxxxxx L.L.P. and Xxxxx Xxxxxxxxxx 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]
______________ __, 1995
Xxxxxx Brothers Inc., as
Representative
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Alabama Power Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to Chemical Bank Delaware, a
Delaware banking corporation ("CBD"), in connection with the
formation of Alabama Power Capital Trust I, a business trust
existing under the laws of the State of Delaware (the
"Trust") pursuant to the Amended and Restated Trust Agree-
ment, dated as of November __, 1995, by and between CBD, 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 ____________ __, 1995, 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 ____________ __, 1995 (the "Underwriting
Agreement"), among Xxxxxx Brothers Inc., the several
Underwriters named in Schedule II thereto, Alabama Power
Company and the Trust, pursuant to which the $_________ ___%
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
Xxxxxx Brothers Inc.
_______________, 1995
Page 2
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 represen-
tations 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 appro-
priate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
1. CBD 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 CBD and constitutes a legal, valid
and binding obligation of CBD, enforceable against CBD, in
accordance with its terms.
3. The execution and delivery of, and performance of
the terms of, the Trust Agreement by CBD, does not conflict
with or constitute a breach of or default under the charter
or by-laws of CBD.
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 CBD 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 CBD (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,
Xxxxxx Brothers Inc.
_______________, 1995
Page 3
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 CBD,
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 CBD) 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,
Schedule VI
[Letterhead of CRAVATH, SWAINE & XXXXX]
Xxxxxx Brothers Inc.,
as Representative
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ALABAMA POWER CAPITAL TRUST I
____% Trust Preferred Securities
Dear Sirs:
We have acted as counsel to Chemical Bank (the "Bank")
in connection with (a) the Subordinated Note Indenture,
dated as of ________ ______, 1995 (the "Original
Indenture"), between Alabama Power Company (the "Company")
and the Bank, as Trustee, (b) the First 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 __________ ______, 1995 (the
"Guarantee Agreement"), between the Company, as Guarantor
and the Bank, as Trustee, and (d) the Amended and Restated
Trust Agreement, dated as of _________ ______, 1995 (the
"Trust Agreement") among the Company, the Bank, as Property
Trustee, Chemical Bank Delaware, as Delaware Trustee, and
_______________ and _______________, as Administrative
Trustees.
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 Trust Agreement, the Guarantee 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;
Xxxxxx Brothers Inc.
_______________, 1995
Page 2
ii) the Bank has the corporate trust power
and authority to execute, deliver and perform its
duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered
the Indenture, the Trust Agreement and the Guarantee
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
Company, each of the Indenture, the Trust Agreement and
the Guarantee 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, regardless of whether such
enforceability is considered in a proceeding in equity
or at law).
iii) the execution, delivery and performance
by the Bank of the Indenture, the Trust Agreement and
the Guarantee 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 Trust
Agreement or the Guarantee Agreement or the performance
by the Bank of its duties thereunder, except such as
have been obtained, taken or made.
We are admitted to practice 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 used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & XXXXX
Schedule VII
[Letterhead of XXXXX XXXXXXXXXX]
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285-1600
ALABAMA POWER CAPITAL TRUST I
______% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Alabama
Power Company (the "Company") of Alabama Power Capital Trust
I (the "Trust"), a Delaware statutory business trust,
pursuant to the amended and restated trust agreement dated
as of _________ ___, 1995 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 approximately $___________ of its ___%
Junior Subordinated Notes (the "Notes") pursuant to a
Subordinated Note Indenture dated as of _______ ___, 1995,
by and between the Company and Chemical Bank, as trustee, as
supplemented by the First Supplemental Indenture dated as of
________ ___, 1995 (collectively, the "Indenture"); and (v)
its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of _______ ___, 1995 (the
"Guarantee Agreement") between the Company and Chemical Bank
Delaware, 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 ______,
1995, 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 (No. 33-
Xxxxxx Brothers Inc.
_______________, 1995
Page 2
_______) pertaining to the Preferred Securities (the
"Registration Statement"), filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated
_______ ___, 1995 filed with the Securities and Exchange
Commission on _______ ___, 1995 (the "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, 1994, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 1995, June 30, 1995
and September 30, 1995 and the Current Report on Form 8-K of
the Company, dated February 15, 1995 (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, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
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 and which are governed by or
dependent upon the laws of State of Georgia upon the opinion
of Xxxxxxxx Xxxxxxx LLP, 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, 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.
Xxxxxx Brothers Inc.
_______________, 1995
Page 3
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 are in conformity 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
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; the Notes conform as to
legal matters in all material respects to the description
thereof in the Prospectus.
Xxxxxx Brothers Inc.
_______________, 1995
Page 4
6. The Guarantee 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 or general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Guarantee
conforms as to legal matters in all material respects to the
description thereof in the 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 Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Prospectus or the
Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraphs 4, 7 and
8 above. In the course of the preparation by the Company of
the Registration Statement, the Prospectus and the Exchange
Act Documents, we participated in conferences with certain
officers and employees of the Company, with representatives
of Xxxxxx Xxxxxxxx LLP and with counsel to the Company.
Based upon our examination of the Registration Statement,
the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of
the Registration Statement and the Prospectus and our
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Prospectus, as of ___________,
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
Xxxxxx Brothers Inc.
_______________, 1995
Page 5
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the
Exchange Act Documents, and (ii) nothing came to our
attention which gives us reason to believe that the
Registration Statement, as of its effective date (including
the Exchange Act Documents on file with the Commission 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 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 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 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
