Exhibit 1
$250,000,000 Series M 7.85% Senior Notes
due May 15, 2003
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
May 11, 2000
Lehman Brothers Inc.
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 (the "Underwriter"), with
respect to the sale by the Company and the purchase by the Underwriter, of
$250,000,000 principal amount of the Series M 7.85% Senior Notes due May 15,
2003 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter deems advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of December 1, 1997, as heretofore
supplemented (the "Base Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), as supplemented by a thirteenth supplemental
indenture to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriter as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-67453,
333-67453-01, 333-67453-02 and 333-67453-03), in respect of the Senior
Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Underwriter, 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 Underwriter
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 Underwriter 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 Underwriter expressly for use in
the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus; or (B) any information set forth in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus under the
caption "Description of the Series M Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company."
(c) The Registration Statement and the Prospectus and the Final Supplemented
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments are
declared effective or supplements are filed with the Commission, as the
case may be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (hereinafter
defined) and the General Rules and Regulations of the Commission thereunder
and do not and will not, (i) as of the applicable effective date as to the
Registration Statement and any amendment thereto and (ii) as of the
applicable filing date as to the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that the Company makes no warranties
or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
(collectively, the "Form T-1") under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), (B) statements or omissions made in the
Registration Statement or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company
by the Underwriter expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the caption "Description
of the Series M 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 Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
(k) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"); (C)
the qualification of the Indenture under the 1939 Act; (D) the
approval of the Alabama Public Service Commission (the "Alabama
Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; 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 the Underwriter, and
the Underwriter agrees to purchase from the Company, the
principal amount of Senior Notes at a price equal to 99.661%
of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Dewey Ballantine LLP,
1301 Avenue of the Americas, New York, New York 10019 at
10:00 A.M., New York time, on May 18, 2000 (unless postponed
in accordance with the provisions of Section 10) or such
other time, place or date as shall be agreed upon by the
Underwriter 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 Underwriter.
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
Underwriter shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter 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 Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver
to the Underwriter 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
Underwriter 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) and, from time to time, as many copies of the
Prospectus and the Final Supplemented Prospectus as the
Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriter 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 Underwriter 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 the Underwriter, any event relating to or affecting
the Company, or of which the Company shall be advised in
writing by the Underwriter, shall occur, which in the
opinion of the Company or of Underwriter's 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 Underwriter to suspend
solicitation of purchases of the Senior Notes and (ii) at
its expense, make any such filing or prepare and furnish to
the Underwriter 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 the 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 the Underwriter, will furnish to the Underwriter,
at the expense of the 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 Underwriter and Dewey
Ballantine LLP.
(c) The Company will endeavor, in cooperation with the
Underwriter, 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
Underwriter 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 Underwriter 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 Underwriter'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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter of copies of any blue sky survey, (vii)
the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the
offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of
the Senior Notes, (x) the cost and charges of any
transfer agent or registrar and (xi) the cost of
qualifying the Senior Notes with The Depository Trust
Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter 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 Underwriter or the Company (but all
provisions of such order or orders heretofore entered, copies of which
have heretofore been delivered to the Underwriter, are deemed
acceptable to the Underwriter and the Company and all provisions of
such order or orders hereafter entered shall be deemed acceptable to
the Underwriter 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 Underwriter shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham LLP,
general counsel for the Company, substantially in the form
attached hereto as Schedule I-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule I-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine & Moore,
counsel to the Trustee, substantially in the form attached hereto
as Schedule II.
(4) The opinion, dated as of the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriter, substantially in the form
attached hereto as Schedule III.
(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 Underwriter
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 Underwriter shall have received from
Arthur Andersen LLP a letter dated the Closing Date to the effect
that: (A) they are independent public accountants with respect to
the Company within the meaning of the 1933 Act and the rules and
regulations under the 1933 Act; (B) in their opinion, the
financial statements audited by them and incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1934
Act and the rules and regulations under the 1934 Act; and (C) on
the basis of certain limited procedures performed through a
specified date not more than five business days prior to the date
of such letter, namely (i) reading the minute books of the
Company; (ii) performing the procedures specified by the American
Institute of Certified Public Accountants ("AICPA") for a review
of interim financial information as described in Statement on
Auditing Standards No. 71, "Interim Financial Information", on
the unaudited financial statements, if any, of the Company
incorporated in the Prospectus and on the unaudited financial
statements of the Company referred to in (3) and (5) below; and
(iii) making inquiries of certain officials of the Company who
have responsibility for financial and accounting matters
regarding such unaudited financial statements or any specified
unaudited amounts derived therefrom (it being understood that the
foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly that Arthur
Andersen LLP make no representations as to the sufficiency of
such procedures for the Underwriter's purposes), nothing came to
their attention that caused them to believe that: (1) any
material modifications should be made to the unaudited condensed
financial statements, if any incorporated in the Prospectus, for
them to be in conformity with generally accepted accounting
principles; (2) such 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 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
Preferred Stock and the unaudited Ratio of Earnings to Fixed
Charges for any twelve month period ending on the most recent
March 31, June 30, September 30 or December 31 subsequent to the
financial statements referred to 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 Underwriter 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 Underwriter and Dewey Ballantine LLP, counsel
for the Underwriter.
(8) That no amendment or supplement to the Registration Statement or
the Final Supplemented Prospectus filed subsequent to the date of
this Agreement (including any filing made by the Company pursuant
to Section 13 or 14 of the 1934 Act) shall be unsatisfactory in
form to Dewey Ballantine LLP or shall contain information (other
than with respect to an amendment or supplement relating solely
to the activity of the Underwriter) 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 Underwriter 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
Underwriter. 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 the Underwriter
and each person, if any, who controls 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 Underwriter
any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are
based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or
are based upon any such untrue statement or alleged untrue
statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus or
Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter 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 the 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. The 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 the 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, the 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) The Underwriter agrees 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 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 Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter 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 Underwriter, the marketability of the Senior Notes shall
have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriter
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 Underwriter for the reasonable fees and disbursements of Dewey
Ballantine LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriter 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. 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 Underwriter shall
be directed to Lehman Brothers Inc., 3 World Financial
Center, New York, New York 10285, Attention: Managing
Director, Utilities Investment Banking; notices to the
Company shall be mailed to 600 North 18th Street, 17th
floor, Birmingham, Alabama 35291, Attention: Corporate
Secretary, with a copy to Southern Company Services, Inc.,
270 Peachtree Street, N.W., Atlanta, Georgia 30303,
Attention: Jeffery A. Spencer.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriter, 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 Underwriter 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
Underwriter and the Company and their respective successors,
and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of
Senior Notes from the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12. 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 13. 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 Underwriter 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
LEHMAN BROTHERS INC.
By:___________________________
Title:
Schedule I-A
[Letterhead of Balch & Bingham LLP]
May _, 2000
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series M _ % Senior Notes
due ____
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 M _% Senior Notes due __ (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 Thirteenth Supplemental
Indenture dated as of __________ __, 2000 (collectively, the "Indenture"); and
(ii) the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated May _, 2000, among the Company and you (the "Underwriter") (the
"Underwriting Agreement"). This opinion is being delivered to you pursuant to
Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ________, 199_ as supplemented by a final prospectus
supplement dated __________, 2000 (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 __________________, 199_, 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 and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Alabama and has
due corporate authority to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". In the course of the preparation by the Company of
the Registration Statement, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999
(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 Series M Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Alabama and we do not
express any opinion herein concerning any law other than the laws of such State
and, to the extent set forth herein, the law of the States of New York and the
federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Alabama law.
Yours very truly,
BALCH & BINGHAM LLP
Schedule I-B
[Letterhead of TROUTMAN SANDERS LLP]
May _, 2000
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series M _% Senior Notes
due ____
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 M _% Senior Notes due _____ (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 Thirteenth
Supplemental Indenture dated as of __________ __, 2000 (collectively, the
"Indenture"); and (ii) the purchase by you (the "Underwriter") of the Notes
pursuant to the terms of an Underwriting Agreement dated May _, 2000, among the
Company and you (the "Underwriting Agreement"). This opinion is being delivered
to you pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ___________, 199_ as supplemented by a final prospectus
supplement dated __________, 2000 (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 _____________, 199_, 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 a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Alabama law upon the opinion dated the date hereof rendered to you by Balch &
Bingham LLP, and relying as to matters of New York law upon the opinion dated
the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Alabama and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
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 Underwriter pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999
(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 Series M Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule II
[Letterhead of Cravath, Swaine & Moore]
May _, 2000
c/o _______
-------
New York, New York ____
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
Alabama Power Company
Series M _% Senior Notes
Due ____
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of December
1, 1997 as heretofore supplemented (the "Original Indenture"), between Alabama
Power Company (the "Company") and the Bank, as Trustee, and (b) the Thirteenth
Supplemental Indenture dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws of
the State of New York;
ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the Indenture, has
duly executed and delivered the Indenture, and, insofar as the laws governing
the trust powers of the Bank are concerned and assuming due authorization,
execution and delivery thereof by the Company, the Indenture constitutes a
legal, valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
iii) the execution, delivery and performance by
the Bank of the Indenture does not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
iv) no approval, authorization or other action
by, or filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of the Bank
is required in connection with the execution and delivery by the Bank of the
Indenture or the performance by the Bank of its duties thereunder, except such
as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule III
[Letterhead of DEWEY BALLANTINE LLP]
May _, 2000
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
ALABAMA POWER COMPANY
Series M _% Senior Notes
due ___
Ladies and Gentlemen:
We have represented you (the "Underwriter") in connection with
(i) the issuance by Alabama Power Company (the "Company") of $____ of its Series
M _% Senior Notes (the "Notes") pursuant to a Senior Note Indenture dated as of
December 1, 1997, by and between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), as heretofore supplemented and as further supplemented
by the Thirteenth Supplemental Indenture dated as of __________ __, 2000
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated May _, 2000, among the
Company and the Underwriter (the "Underwriting Agreement"). This opinion is
being delivered to you pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-67453, 333-67453-01,
333-67453-02 and 333-67453-03) pertaining to the Notes (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated ________, 199_, as supplemented by a final 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 ________________, 199_, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended _________ 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. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Alabama upon the opinion of Balch & Bingham LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Alabama and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Alabama Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999 (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 Series M Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Alabama.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Balch & Bingham LLP and Troutman Sanders LLP may rely on
this opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and Balch
& Bingham LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP