Exhibit 1
$275,000,000 Series N 4.875% Senior Notes due September
1, 2004 $167,000,000 Series O Floating Rate Senior Notes
due March 3, 2003
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
August 22, 2001
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Alabama Power Company, an Alabama corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (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 Company and the purchase by the Underwriters, acting severally
and not jointly, of $275,000,000 aggregate principal amount of the Series N
4.875% Senior Notes due September 1, 2004 (the "Series N Notes") and
$167,000,000 aggregate principal amount of the Series O Floating Rate Senior
Notes due March 3, 2003 (the "Series O Notes" and, together with the Series N
Notes, the "Senior Notes") as set forth in Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The Senior Notes
will be issued pursuant to an indenture, dated as of December 1, 1997, as
heretofore supplemented (the "Base Indenture"), between the Company and The
Chase Manhattan Bank, as trustee (the "Trustee"), as supplemented by a
fourteenth supplemental indenture and a fifteenth supplemental indenture to the
Base Indenture relating to the Senior Notes (collectively, the "Supplemental
Indentures," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of August
29, 2001 (the "Calculation Agent Agreement"), between the Company and The Chase
Manhattan Bank, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Series O Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-67453,
000-00000-00, 000-00000-00 and 333-67453-03), in respect of the Senior
Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration statement,
as amended, and any post-effective amendment delivered to the Underwriters
need not include exhibits but shall include all documents incorporated by
reference therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time
it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(e) hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
in the preliminary prospectus supplement, dated August 22, 2001 (the
"Preliminary Supplemented Prospectus") or the Final Supplemented
Prospectus; or (B) any information set forth in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus under the
caption "Description of the Senior Notes - Book-Entry Only Issuance -- The
Depository Trust Company."
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act
(hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto
and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
Company makes no warranties or representations with respect to (A) that
part of the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), (B) statements or
omissions made in the Registration Statement or the Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use therein or (C)
any information set forth in the Final Supplemented Prospectus under the
caption "Description of the Senior Notes - Book-Entry Only Issuance -- The
Depository Trust Company."
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Alabama and has due corporate authority to carry on the
public utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell
the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Indenture by
the Trustee, the Indenture will, on the Closing Date, constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will
have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized
by the Company and, on the Closing Date, the Senior Notes will have been
duly executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described in
the Final Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions, will be in the form
contemplated by, and entitled to the benefits of, the Indenture and will
conform in all material respects to all statements relating thereto in the
Final Supplemented Prospectus.
(j) The Calculation Agent 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
Calculation Agent Agreement by the Calculation Agent, the Calculation Agent
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.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent Agreement, the Indenture and the Senior
Notes and the consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with its obligations
hereunder and thereunder shall have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not result
in any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company under (A) any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Company is a
party or by which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this Agreement), or
(B) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the transactions by
the Company contemplated in this Agreement, except (A) such as may be
required under the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding Company Act of
1935, as amended; (C) the qualification of the Indenture under the 1939
Act; (D) the approval of the Alabama Public Service Commission (the
"Alabama Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
-----------------------------------------------
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, the principal amount of
Series N Senior Notes set forth in Schedule I to this Agreement opposite the
name of such Underwriter (plus any additional amount of Series N Notes that
such Underwriter may become obligated to purchase pursuant to the provisions
of Section 10 hereof), at a price equal to 99.476% of the principal amount
thereof and the principal amount of Series O Senior Notes setforth in
Schedule I to this Agreement opposite the name of such Underwriter (plus any
additional amount of Series O Notes that such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof), at a price equal
to 99.850% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Xxxxx & Xxxxxxx LLP, 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 at 9:00 A.M., Birmingham time, on August 29, 2001
(unless postponed in accordance with the provisions of
Section 10) or such other time, place or date as shall be agreed upon
by the Representative and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment shall be
made to the Company by wire transfer in federal funds at the Closing
Date against delivery of the Senior Notes to the Representative. It is
understood that each Underwriter has authorized the Representative,
for its account, to accept delivery of, receipt for, and make payment
of the principal amount of the Senior Notes which it has agreed to
purchase. The Representative, individually and not as Representative
of the Underwriters, may (but shall not be obligated to) make payment
of the principal amount of the Senior Notes to be purchased by any
Underwriter whose payment has not been received by the Closing Date,
but such payment shall not relieve such Underwriter from its
obligations hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificates for the Senior Notes will be made available
for examination by the Representative not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an
exhibit thereto, except exhibits incorporated by reference, unless
specifically requested). As soon as the Company is advised thereof, it
will advise the Representative orally of the issuance of any stop
order under the 1933 Act with respect to the Registration Statement,
or the institution of any proceedings therefor, of which the Company
shall have received notice, and will use its best efforts to prevent
the issuance of any such stop order and to secure the prompt removal
thereof, if issued. The Company will deliver to the Representative
sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all
supplements and amendments thereto (in each case without exhibits) for
distribution to the Underwriters and, from time to time, as many
copies of the Prospectus and the Final Supplemented Prospectus as the
Underwriters may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating
to the offering of the Senior Notes in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Senior
Notes by an Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
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 Final Supplemented Prospectus, as the case may be, in
order to make the Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if for any other
reason it shall be necessary during such period to amend or supplement
the Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the
Company forthwith will (i) notify the Underwriters to suspend
solicitation of purchases of the Senior Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Final Supplemented Prospectus which
will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when
the Final Supplemented Prospectus is delivered, not misleading or
which will effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in connection with the
sale of any Senior Notes after the expiration of the period specified
in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the
Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the 1934 Act
and the rules and regulations thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing
copies thereof prior to such filing to the Representative and Xxxxx
Xxxxxxxxxx LLP.
(c) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representative may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the rules and
regulations under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the 1933 Act,
to file the Final Supplemented Prospectus with the Commission and to
advise the Representative of such filing and to confirm such advice in
writing.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement). The
Representative agrees that commercial paper or other debt securities
with scheduled maturities of less than one year are not subject to
this Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of
the Registration Statement as originally filed and of each amendment thereto,
(ii) the preparation, issuance and delivery of the certificate(s) for the
Senior Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws
in accordance with the provisions of Section 3(c) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
Prospectus, the Final Supplemented Prospectus, and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses of
the Trustee and Calculation Agent, including the fees and disbursements of
counsel for the Trustee and the Calculation Agent in connection with the
Calculation Agent Agreement, the Indenture and the Senior Notes, (ix)
any fees payable in connection with the rating of the Senior Notes, (x) the cost
and charges of any transfer agent or registrar and (xi) the cost of qualifying
the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Senior Notes
are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings
for that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative, are deemed
acceptable to the Underwriters and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to
the Underwriters and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall
give notice to the other parties to the effect that such order
contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Xxxxx & Xxxxxxx
LLP, general counsel for the Company, substantially in
the form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Xxxxxxxx
Xxxxxxx LLP, counsel for the Company, substantially in
the form attached hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Xxxxxxx, Swaine
& Xxxxx, counsel to the Trustee, substantially in the
form attached hereto as Schedule III.
(4) The opinion, dated as of the Closing Date, of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters,
substantially in the form attached hereto as Schedule
IV.
(5) At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of
which information is given in the Registration
Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or
financial condition of the Company, whether or not
arising in the ordinary course of business, and the
Representative shall have received a certificate of the
President or any Vice President of the Company, and
dated as of the Closing Date, to the effect that (i)
there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as
though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied on or prior to the Closing Date, and (iv) no
stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the
Commission.
(6) On the Closing Date, the Representative shall have
received from Xxxxxx Xxxxxxxx LLP a letter dated the
Closing Date to the effect that: (A) they are
independent public accountants with respect to the
Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements audited by them and
incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules
and regulations under the 1934 Act; and (C) on the
basis of certain limited procedures performed through a
specified date not more than five business days prior
to the date of such letter, namely (i) reading the
minute books of the Company; (ii) performing the
procedures specified by the American Institute of
Certified Public Accountants ("AICPA") for a review of
interim financial information as described in Statement
on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if
any, of the Company incorporated in the Prospectus and
of the latest available unaudited financial statements
of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated in the
Prospectus; and (iii) making inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters regarding such
unaudited financial statements or any specified
unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not
constitute an audit performed in accordance with
generally accepted auditing standards and they would
not necessarily reveal matters of significance with
respect to the comments made in such letter, and
accordingly that Xxxxxx Xxxxxxxx LLP make no
representations as to the sufficiency of such
procedures for the Underwriters' purposes), nothing
came to their attention that caused them to believe
that: (1) any material modifications should be made to
the unaudited condensed financial statements, if any
incorporated in the Prospectus, for them to be in
conformity with generally accepted accounting
principles; (2) such unaudited condensed financial
statements do not comply as to form in all material
respects with the applicable accounting requirements of
the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the
unaudited amounts for Operating Revenues, Earnings
Before Interest and Income Taxes and Net Income After
Dividends on Preferred Stock and the unaudited Ratio of
Earnings to Fixed Charges set forth in the Final
Supplemented Prospectus do not agree with the amounts
set forth in or derived from the unaudited financial
statements for the same period or were not determined
on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in Registration Statement;
(4) as of a specified date not more than five business
days prior to the date of delivery of such letter,
there has been any change in the capital stock or
long-term debt of the Company or any decrease in net
assets as compared with amounts shown in the latest
audited balance sheet incorporated in the Prospectus,
except in each case for changes or decreases which (i)
the Prospectus discloses have occurred or may occur,
(ii) are occasioned by the declaration of dividends,
(iii) are occasioned by draw-downs under existing
pollution control financing arrangements, (iv) are
occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or
stock to satisfy mandatory or optional redemption
provisions relating thereto, or (vi) are disclosed in
such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Interest and Income
Taxes and Net Income After Dividends on Preferred Stock
and the unaudited Ratio of Earnings to Fixed Charges
for any calendar quarter subsequent to those set forth
in (3) above, which, if available, shall be set forth
in such letter, do not agree with the amounts set forth
in or derived from the unaudited financial statements
for the same period or were not determined on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus.
(7) On the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as
it may reasonably require for the purpose of enabling
it to pass upon the issuance and sale of the Senior
Notes as herein contemplated and related proceedings,
or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the
issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and
substance to the Representative and Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters.
(8) That no amendment or supplement to the Registration
Statement or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14
of the 1934 Act) shall be unsatisfactory in form to
Xxxxx Xxxxxxxxxx LLP or shall contain information
(other than with respect to an amendment or supplement
relating solely to the activity of the Underwriters)
which, in the reasonable judgment of the
Representative, shall materially impair the
marketability of the Senior Notes.
(9) The Company shall have performed its obligations when
and as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, 1934 Act or
otherwise, and to reimburse such Underwriter and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus or,
if the Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14 of
the 1934 Act which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by,
or through the Representative on behalf of, the Underwriters for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company shall have
furnished any amendment or supplement thereto, shall not inure to the benefit of
any Underwriter (or of any person controlling such Underwriter) on account of
any losses, claims, damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference pursuant to Item 12 of Form S-3), as the same
may then be amended or supplemented, shall not have been sent or given by or on
behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
as supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representative pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters for the reasonable fees and disbursements of Xxxxx
Xxxxxxxxxx LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER
If an Underwriter shall fail on the Closing Date to purchase
the Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the Senior Notes, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Xxxxxx Brothers Inc., 0
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Debt Capital
Markets Power Group, with a copy to the General Counsel; notices to the Company
shall be mailed to 000 Xxxxx 00xx Xxxxxx, 00xx xxxxx, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Corporate Secretary, with a copy to Southern Company Services, Inc.,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxxxxxx X.
Xxxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
As Representative of the Several Underwriters
named in Schedule I hereto
By:___________________________
Title:
SCHEDULE I
Principal Xxxxxx of Principal Amount of
Name of Underwriters Series N Notes Series O Notes
Xxxxxx Brothers Inc. $165,000,000 $116,900,000
BNY Capital Markets, Inc. $ 36,685,000 $ 16,700,000
Xxxxxxx Securities Inc. $ 36,657,500 $ 16,700,000
Scotia Capital Markets (USA) Inc. $ 36,657,500 $ 16,700,000
TOTAL: $275,000,000 $167,000,000
============ ============
Schedule II-A
[Letterhead of Xxxxx & Xxxxxxx LLP]
August _, 2001
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series N _ % Senior Notes due September 1, 2004
Series O Floating Rate Senior Notes due March 3, 2003
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $__________
aggregate principal amount of its Series N % Senior Notes due September 1, 2004
(the "Series N Notes") and $_________ aggregate principal amount of its Series O
Floating Rate Senior Notes due March 3, 2003 (the "Series O Notes" and, together
with the Series N Notes, the "Notes") pursuant to a Senior Note Indenture dated
as of December 1, 1997, by and between the Company and The Chase Manhattan Bank,
as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Fourteenth Supplemental Indenture dated as of __________,
2001 and by the Fifteenth Supplemental Indenture dated as of _______, 2001
(collectively, the "Indenture"); and (ii) the purchase by the Representative of
the Notes pursuant to the terms of an Underwriting Agreement dated August _,
2001, among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as the Representative (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of August __,
2001 (the "Calculation Agent Agreement"), between the Company and The Chase
Manhattan Bank, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Series O Notes. 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 (Nos. 333-67453, 000-00000-00,
000-00000-00 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ________, 199_ as supplemented by a final prospectus
supplement dated __________, 2001 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended __________________, 2000_, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ____________ and the
Current Reports on Form 8-K of the Company dated __________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx LLP, that:
1. The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of Alabama and
has due corporate authority to carry on the public utility business in which it
is engaged and to own and operate the properties used by it in such business and
to enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and the sale of the Notes; the issuance and the sale
of the Notes conform in all material respects with the terms of such orders; and
no other order, consent or other authorization or approval of any Alabama or
United States governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction, as to
which we express no opinion) is legally required for the issuance and sale of
the Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Calculation Agent
and the Trustee, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity; and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company and with representatives of Xxxxxx Xxxxxxxx
LLP. Based upon our examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our investigations made
in connection with the preparation of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents and our participation in
the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Final Supplemented
Prospectus, as of __________, complied as to form in all material respects with
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement therein of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Senior Notes - Book-Entry Only Issuance - The Depository
Trust Company."
We are members of the State Bar of Alabama and we do not
express any opinion herein concerning any law other than the laws of such State
and, to the extent set forth herein, the law of the States of New York and the
federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Alabama law.
Yours very truly,
XXXXX & XXXXXXX LLP
Schedule II-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
August _, 2001
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series N _% Senior Notes due September 1, 2004
Series O Floating Rate Senior Notes due March 3, 2003
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $___________
aggregate principal amount of its Series N % Senior Notes due September 1, 2004
(the "Series N Notes") and $__________ aggregate principal amount of its Series
O Floating Rate Senior Notes due March 3, 2003 (the "Series O Notes" and,
together with the Series N Notes, the "Notes") pursuant to a Senior Note
Indenture dated as of December 1, 1997, by and between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Fourteenth Supplemental Indenture dated as of
__________, 2001 and the Fifteenth Supplemental Indenture dated as of ______,
2001 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated August _, 2001 (the
"Underwriting Agreement"), among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. Pursuant to a Calculation Agent Agreement, dated as of August
__, 2001 (the "Calculation Agent Agreement"), between the Company and The Chase
Manhattan Bank, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Series O Notes. 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 (Nos. 333-67453, 000-00000-00,
000-00000-00 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ___________, 199_ as supplemented by a final prospectus
supplement dated __________, 2001 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended _____________, 200_, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended ____________ and the Current
Reports on Form 8-K of the Company dated _________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined specimens), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Alabama law upon the opinion dated the date hereof rendered to you by Xxxxx &
Xxxxxxx LLP, and relying as to matters of New York law upon the opinion dated
the date hereof rendered to you by Xxxxx Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Alabama and has due corporate authority to carry on the public utility business
in which it is engaged, to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Calculation Agent
and the Trustee, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Xxxxxx Xxxxxxxx LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Senior Notes - Book-Entry Only Issuance - The Depository
Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
XXXXXXXX XXXXXXX LLP
Schedule III
[Letterhead of Cravath, Swaine & Xxxxx]
August _, 2001
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
Alabama Power Company
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Alabama Power Company
Series N _% Senior Notes due September 1, 2004
Series O Floating Rate Senior Notes due March 3, 2003
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of December
1, 1997 as heretofore supplemented (the "Original Indenture"), between Alabama
Power Company (the "Company") and the Bank, as Trustee, (b) the Fourteenth
Supplemental Indenture and the Fifteenth Supplemental Indenture, each dated as
of ___________ (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (c) the
Calculation Agent Agreement, dated as of August __, 2001 (the "Calculation Agent
Agreement") between the Company and the Bank, as Calculation Agent.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws
of the State of New York;
ii) the Bank has the corporate trust power and authority
to execute, deliver and perform its duties under the Indenture and the
Calculation Agent Agreement, has duly executed and delivered the Indenture and
the Calculation Agent 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 and the Calculation
Agent Agreement constitutes a legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity (including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank
of the Indenture and the Calculation Agent Agreement does not conflict with or
constitute a breach of the charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or
filing with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the trust powers of the Bank is
required in connection with the execution and delivery by the Bank of the
Indenture or the Calculation Agent 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 only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, XXXXXX & XXXXX
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
August _, 2001
Xxxxxx Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series N _% Senior Notes due September 1, 2004
Series O Floating Rate Notes due March 3, 2003
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Alabama Power Company (the "Company") of $__________ of its Series N % Senior
Notes (the "Series N Notes") and $___________ of its Series O Floating Rate
Senior Notes (the "Series O Notes" and, together with the Series N Notes, the
"Notes") pursuant to a Senior Note Indenture dated as of December 1, 1997, by
and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the
Fourteenth Supplemental Indenture and the Fifteenth Supplemental Indenture, each
dated as of _________, 2001 (collectively, the "Indenture"); and (ii) the
purchase by you of the Notes pursuant to the terms of an Underwriting Agreement
dated August _, 2001, among the Company and the underwriters named in Schedule I
thereto (the "Underwriters") for whom you are acting as Representative (the
"Underwriting Agreement"). Pursuant to a Calculation Agent Agreement, dated as
of August __, 2001 (the "Calculation Agent Agreement"), between the Company and
The Chase Manhattan Bank, as calculation agent thereunder (the "Calculation
Agent"), the Company has engaged the Calculation Agent to perform certain
services with respect to the floating interest rate on the Series O Notes. This
opinion is being delivered to you as Representative pursuant to Section 5(c)(4)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 000-00000-00,
000-00000-00 and 333-67453-03) pertaining to the Notes (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ________, 199_, as supplemented by a prospectus supplement
dated _________ (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended ________________, 2000_, the Quarterly Reports on Form
10-Q of the Company for the quarters ended _________ and the Current Reports on
Form 8-K of the Company, dated __________ (the "Exchange Act Documents"), each
as filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined specimens), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Alabama upon the opinion of Xxxxx & Xxxxxxx LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Alabama and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Xxxxxx Xxxxxxxx LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 2000 (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Senior Notes - Book-Entry Only Issuance - The Depository
Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Xxxxx & Xxxxxxx LLP and Xxxxxxxx Xxxxxxx LLP may rely on
this opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and Xxxxx
& Xxxxxxx LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
