Exhibit 4.9-B
ALABAMA POWER COMPANY
TO
JPMORGAN CHASE BANK,
TRUSTEE
-----------------------
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 2, 2002
-----------------------
$206,186,000
SERIES E JUNIOR SUBORDINATED NOTES
DUE OCTOBER 1, 2042
TABLE OF CONTENTS1
Page
ARTICLE 1 - Series E Junior Subordinated Notes....................................................................2
SECTION 101 Establishment...................................................................................2
SECTION 102 Definitions.....................................................................................2
SECTION 103 Payment of Principal and Interest...............................................................8
SECTION 104 Deferral of Interest Payments...................................................................9
SECTION 105 Denominations..................................................................................10
SECTION 106 Global Securities..............................................................................10
SECTION 107 Transfer.......................................................................................11
SECTION 108 Redemption.....................................................................................11
ARTICLE 2 - Distribution Procedures..............................................................................11
SECTION 201 Distributions..................................................................................12
SECTION 202 Distribution Rate..............................................................................13
SECTION 203 Distribution Periods...........................................................................15
ARTICLE 3 - Remarketing Procedures...............................................................................15
SECTION 301 Election to Remarket...........................................................................15
SECTION 302 Notice of Election.............................................................................16
SECTION 303 Determination of Distribution Rate.............................................................17
SECTION 304. Remarketing Agent..............................................................................18
ARTICLE 4 - Miscellaneous Provisions.............................................................................18
SECTION 401 Recitals by Company............................................................................18
SECTION 402 Ratification and Incorporation of Original Indenture...........................................18
SECTION 403 Executed in Counterparts.......................................................................19
EXHIBIT A.........................................................................................................1
EXHIBIT B.........................................................................................................1
__________
1 This table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms and
provisions.
THIS FOURTH SUPPLEMENTAL INDENTURE is made as of the 2nd day
of October, 2002, by and between ALABAMA POWER COMPANY, an Alabama corporation,
600 North 18th Street, Birmingham, Alabama 35291 (the "Company"), and JPMORGAN
CHASE BANK (formerly known as The Chase Manhattan Bank), a New York banking
corporation, 450 West 33rd Street, New York, New York 10001 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a
Subordinated Note Indenture, dated as of January 1, 1997 (the "Original
Indenture") with JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank);
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by the First Supplemental
Indenture dated as of January 1, 1997, the Second Supplemental Indenture dated
as of February 25, 1999, the Third Supplemental Indenture dated as of October 2,
2002 and this Fourth Supplemental Indenture dated as of October 2, 2002, is
herein called the "Indenture";
WHEREAS, under the Original Indenture, a new series of Junior
Subordinated Notes may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture
a new series of Junior Subordinated Notes;
WHEREAS, additional Junior Subordinated Notes of other series
hereafter established, except as may be limited in the Original Indenture as at
the time supplemented and modified, may be issued from time to time pursuant to
the Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution
and delivery of this Fourth Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Series E Junior Subordinated Notes
SECTION 101. Establishment.
-------------
There is hereby established a new series of Junior
Subordinated Notes to be issued under the Indenture, to be designated as the
Company's Series E Junior Subordinated Notes due October 1, 2042 (the "Series E
Notes").
There are to be authenticated and delivered $206,186,000
aggregate principal amount of Series E Notes, and no further Series E Notes
shall be authenticated and delivered except as provided by Sections 203, 303,
304, 907 or 1107 of the Original Indenture. The Series E Notes shall be issued
in definitive fully registered form.
The Series E Notes shall be in substantially the form set out
in Exhibit A hereto. The entire principal amount of the Series E Notes shall
initially be evidenced by one certificate issued to the Property Trustee of
Alabama Power Capital Trust V.
The form of the Trustee's Certificate of Authentication for
the Series E Notes shall be in substantially the form set forth in Exhibit B
hereto.
Each Series E Note shall be dated the date of authentication
thereof and shall bear interest from the date of original issuance thereof or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for.
SECTION 102. Definitions.
-----------
The following defined terms used herein shall, unless the
context otherwise requires, have the meanings specified below. Capitalized terms
used herein for which no definition is provided herein shall have the meanings
set forth in the Original Indenture.
"Additional Interest" with respect to the Series E Notes means
(i) such additional amounts as may be required so that the net amounts received
and retained by the Holder (if the Holder is the Securities Trust) after paying
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States or any other taxing
authority will not be less than the amounts the Holder would have received had
no such taxes, duties, assessments, or other governmental charges been imposed;
and (ii) any interest due and not paid on an Interest Payment Date, together
with interest thereon from such Interest Payment Date to the date of payment on
each Interest Payment Date.
"Administrative Trustee" means each of the individuals
identified as an "Administrative Trustee" in the Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(i) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or
in respect of such Person under federal bankruptcy law or any
other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of
its property, or ordering the winding up or liquidation of its
affairs, and the continuance of such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(ii) the institution by such Person of proceedings to
be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under federal
bankruptcy law or any other applicable federal or state law,
or the consent by it to the filing of such petition or to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator or similar official of such Person or of any
substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as
they become due, or the taking of action by such Person in
furtherance of any such action.
"Business Day" means a day other than (i) a Saturday or a
Sunday, (ii) a day on which banks in New York, New York are authorized or
obligated by law or executive order to remain closed, (iii) a day on which the
Corporate Trust Office or the Indenture Trustee's principal corporate trust
office is closed for business or (iv) a day on which the New York Stock Exchange
is closed.
"Calculation Agent" means JPMorgan Chase Bank, its successors
and assigns, or such other bank or trust company appointed to such capacity by
the Company and the Administrative Trustees.
"Calculation Agent Agreement" means the agreement among the
Company, the Trust and JPMorgan Chase Bank, as calculation agent, dated as of
October 2, 2002.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act. The Depository
Trust Company will be the initial Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means Alabama Power Company.
"Deferred Interest" means each installment of interest not
paid during any Extension Period, and interest thereon. Deferred installments of
interest shall bear interest at the rate of the prevailing Interest Rate per
annum from the applicable Interest Payment Date to the date of payment,
compounded on each Interest Payment Date.
"Definitive Preferred Securities Certificates" means Preferred
Securities Certificates issued in certificated, fully registered form as
provided in the Trust Agreement.
"Distribution Payment Date" means each day on which
Distributions are payable on the Preferred Securities determined based on the
prevailing Distribution Rate.
"Distribution Period" means each semiannual period in a Fixed
Rate Period and each quarterly period in a Floating Rate Period for which
Distributions are payable on the Trust Securities.
"Distribution Rate" means the rate at which Distributions will
accrue on the Trust Securities.
"Distributions" means amounts payable in respect of the
Preferred Securities pursuant to Section 4.01 of the Trust Agreement.
"Election Date" means a date that is no later than the fifth
Business Day prior to the proposed Remarketing Date.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Extension Period" means any period during which the Company
has elected to defer payments of interest on the Series E Notes, which deferral
may be for a period of up to five years.
"Fixed Rate" means the Distribution Rate during a Fixed Rate
Period as determined by a Remarketing.
"Fixed Rate Period" means the Initial Fixed Rate Period and
each period set by the Company and the Administrative Trustees during a
Remarketing for which the Fixed Rate determined in such Remarketing will apply,
provided, however, that a Fixed Rate Period must be for a duration of at least
six months, may not extend beyond the stated maturity of the Series E Notes,
shall begin on the first day of a calendar quarter upon the expiration of the
preceding Fixed Rate Period or Distribution Period with respect to the current
Floating Rate Period (except for the Initial Fixed Rate Period) and may not end
on a day other than the last day of a calendar quarter.
"Floating Rate" means 3-month LIBOR plus 3.10%, reset
quarterly.
"Floating Rate Determination Date" means the second London
Business Day immediately preceding the first day of the relevant Distribution
Period in the Floating Rate Period.
"Floating Rate Period" means any period during which a
Floating Rate is in effect.
"Initial Fixed Rate Period" means the period from the
Original Issue Date through September 30, 2009.
"Initial Distribution Rate" means 5.50% per annum.
"Interest Payment Dates" means the dates on which interest on
the Series E Notes is payable.
"Interest Period" means the period for which interest on the
Series E Notes is payable.
"Interest Rate" means the rate at which interest shall accrue
on the Series E Notes.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Investment Company Event" means that the Administrative
Trustees and the Company shall have received an Opinion of Counsel to the effect
that, as a result of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority after the Original Issue
Date, there is more than an insubstantial risk that the Securities Trust is or
will be considered an investment company under the 1940 Act.
"London Business Day" means a day that is a Business Day and a
day on which dealings in deposits in U.S. dollars are transacted, or with
respect to any future date are expected to be transacted, in the London
interbank market.
"Original Issue Date" means October 2, 2002.
"Preferred Security" means an undivided beneficial ownership
interest in the assets of the Securities Trust having a Liquidation Amount of
$1,000 and having rights provided therefor in the Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.
"Preferred Securities Certificate" means a certificate
evidencing ownership of a Preferred Security or Securities, substantially in the
form attached as Exhibit A to the Trust Agreement.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the Trust Agreement solely in its
capacity as Property Trustee of the Trust.
"Record Date" with respect to any Interest Payment Date means
the opening of business on the Business Day immediately preceding an Interest
Payment Date.
"Redemption Date" has the meaning set forth in Section 108.
"Remarketing" means the conduct by which a Fixed Rate shall be
determined in accordance with the Remarketing Procedures.
"Remarketing Agent" means Lehman Brothers Inc., its
successors or assigns, or such other remarketing agent appointed to such
capacity by the Administrative Trustees.
"Remarketing Agreement" means the agreement among the Company,
the Trust and Lehman Brothers Inc., as remarketing agent, dated October 2, 2002.
"Remarketing Date" means any Business Day no later than the
third Business Day prior to any Remarketing Settlement Date.
"Remarketing Procedures" means those procedures set forth in
Article 3.
"Remarketing Settlement Date" means the first Business Day of
the next Distribution Period following the Distribution Period in which a
Remarketing has occurred.
"Securities Trust" or "Trust" means Alabama Power Capital
Trust V, a statutory trust formed by the Company under Delaware law to issue
Trust Securities, the proceeds of which will be used to purchase Series E Notes.
"Securityholder" or "Holder" when used with respect to a Trust
Security means a Person in whose name a Trust Security or Securities is
registered in the Securities Register for the Trust Securities; any such Person
is a beneficial owner within the meaning of the Delaware Statutory Trust Act.
"Special Event" means an Investment Company Act Event or Tax
Event.
"Stated Maturity" means October 1, 2042.
"Tax Event" means that the Administrative Trustees and the
Company shall have received an Opinion of Counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or application
of such laws or regulations, there is more than an insubstantial risk that (i)
the Securities Trust would be subject to United States federal income tax with
respect to income accrued or received on the Series E Notes, (ii) interest
payable on the Series E Notes would not be deductible by the Company for United
States federal income tax purposes, or (iii) the Securities Trust would be
subject to more than a de minimis amount of other taxes, duties or other
governmental charges, which change or amendment becomes effective on or after
the Original Issue Date.
"Telerate Page 3750" means the display designated on page 3750
on Moneyline Telerate (or such other page as may replace the 3750 page on the
service or such other service as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits).
"3-month LIBOR" means for any Floating Rate Determination
Date, the offered rate in U.S. dollars having an index maturity of three months
for a period commencing on the second London Business Day immediately following
the Floating Rate Determination Date in amounts of not less than $1,000,000, as
such rate appears on Telerate Page 3750 or a successor reporter of such rates
selected by the Calculation Agent and acceptable to the Company, at
approximately 11:00 a.m., London time, on the Floating Rate Determination Date.
"Trust Agreement" means the Alabama Power Capital Trust V
Amended and Restated Trust Agreement among the Company and the Trustees dated as
of October 1, 2002.
"Trust Agreement Event of Default" means any one of the
following events (whatever the reason for such Trust Agreement Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(i) the occurrence of an Event of Default; or
(ii) default by the Securities Trust in the payment
of any Distribution when it becomes due and payable, and
continuation of such default for a period of 30 days; or
(iii) default by the Securities Trust in the
payment of any redemption price of any Trust Security when it becomes due and
payable; or
(iv) default in the performance, or breach, of any
covenant or warranty of the Trustees in the Trust Agreement
(other than a covenant or warranty a default in whose
performance or breach is dealt with in clause (ii) or (iii)
above) and continuation of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Trustees by the Holders of at least 10%
in liquidation amount of the Outstanding (as defined in the
Trust Agreement) Preferred Securities a written notice
specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(v) the occurrence of a Bankruptcy Event with
respect to the Securities Trust.
"Trustees" means the Persons identified as "Trustees" in the
Trust Agreement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trust Security" means any one of the Common Securities (as
defined in the Trust Agreement) or the Preferred Securities.
SECTION 103. Payment of Principal and Interest.
---------------------------------
The unpaid principal amount of the Series E Notes shall bear
interest at the Interest Rate per annum until paid or duly provided for.
Interest shall be paid on each Interest Payment Date to the Person in whose name
the Series E Notes are registered on the Record Date for such Interest Payment
Date, provided that interest payable at the Stated Maturity of principal or on a
Redemption Date as provided herein will be paid to the Person to whom principal
is payable. So long as an Extension Period is not occurring, any such interest
that is not so punctually paid or duly provided for will forthwith cease to be
payable to the Holders on such Record Date and may either be paid to the Person
or Persons in whose name the Series E Notes are registered at the close of
business on a Special Record Date for the payment of such defaulted interest to
be fixed by the Trustee ("Special Record Date"), notice whereof shall be given
to Holders of the Series E Notes not less than ten (10) days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Series E Notes shall be listed, and upon such notice as may be required by
any such exchange, all as more fully provided in the Original Indenture.
While the Preferred Securities are outstanding (i) the
Interest Rate will be equal to the Distribution Rate payable on the Preferred
Securities, (ii) the Interest Periods will be the same as Distribution Periods
for the Preferred Securities and (iii) the Interest Payment Dates will be the
same as the Distribution Payment Dates for the Preferred Securities.
If the Securities Trust is terminated and the Series E Notes
are distributed to the holders of the Preferred Securities, the interest
payable, Interest Rate, Interest Periods and Interest Payment Dates will be
determined in the same manner as the Distributions, Distribution Rate,
Distribution Periods and Distribution Payment Dates for the Preferred Securities
and the Remarketing Procedures shall remain the same except: (i) the effects of
the Trust Agreement Events of Default shall be occasioned only by the Events of
Default and (ii) the cure and waiver provisions relating to the Trust Agreement
Events of Default shall be superceded by the cure and waiver provisions relating
to the Events of Default.
Payment of the principal and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
E Notes shall be made upon surrender of the Series E Notes at the Corporate
Trust Office of the Trustee, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payments of interest (including interest on any Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least sixteen (16) days prior
to the date for payment by the Person entitled thereto.
The Company shall pay, as additional interest on the Series E
Notes, when due to the United States or any other taxing authority, the amounts
set forth in clause (i) of the definition of Additional Interest.
SECTION 104. Deferral of Interest Payments.
-----------------------------
The Company has the right to defer payments of interest on the
Series E Notes by extending the interest payment period from time to time on the
Series E Notes (an "Extension Period"). During an Extension Period, interest
will continue to accrue on the Series E Notes.
If the Company decides to defer interest payments on the
Series E Notes, the Extension Period shall not exceed five consecutive years. An
Extension Period shall not extend beyond the stated maturity of the Series E
Notes. Prior to the termination of any Extension Period, the Company may further
defer payments of interest provided that the Extension Period, together with all
previous and further extensions thereof, may not exceed five consecutive years.
There could be multiple Extension Periods of varying lengths throughout the term
of the Series E Notes. Upon the termination of any such Extension Period and
upon the payment of all accrued and unpaid interest and any Additional Interest
then due, the Company may select a new Extension Period, subject to the above
limitations and requirements. Upon the termination of any Extension Period,
which termination shall be on an Interest Payment Date, the Company shall pay
all Deferred Interest on the next succeeding Interest Payment Date to the Person
in whose name the Series E Notes are registered on the Record Date for such
Interest Payment Date, provided that Deferred Interest payable at Stated
Maturity or on any Redemption Date will be paid to the Person to whom principal
is payable.
If the Company shall have given notice of its election to
select any Extension Period, the Company shall not (i) declare or pay any
dividend or distribution on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, or make any guarantee
payments with respect to the foregoing and (ii) make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees other than its guarantee of the Preferred
Securities issued by the Securities Trust) issued by the Company that rank pari
passu with or junior to the Series E Notes.
The Company shall give the Holder or Holders of the Series E
Notes, the Trustee, the Remarketing Agent and the Calculation Agent, notice as
provided in Sections 105 and 106, respectively, of the Original Indenture of its
selection or extension of an Extension Period at least one Business Day prior to
the earlier of (i) the Record Date relating to the Interest Payment Date on
which the Extension Period is to commence or relating to the Interest Payment
Date on which an Extension Period that is being extended would otherwise
terminate, or (ii) the date the Company or the Securities Trust is required to
give notice to any applicable self-regulatory organization of the record date or
the date such distributions are payable. The Company shall cause the Securities
Trust to give notice of the Company's selection of such Extension Period to
Holders of the Trust Securities, the Calculation Agent and the Remarketing
Agent.
At any time any of the foregoing notices are given to the
Trustee, the Company shall give to the Paying Agent for the Series E Notes such
information as said Paying Agent shall reasonably require in order to fulfill
its tax reporting obligations with respect to such Series E Notes.
SECTION 105. Denominations.
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The Series E Notes may be issued in the denominations of
$1,000, or any integral multiple thereof.
SECTION 106. Global Securities.
-----------------
If the Series E Notes are distributed to Holders of the Trust
Securities of the Securities Trust in liquidation of such Holders' interests
therein, the Series E Notes will be issued in the form of one or more Global
Securities registered in the name of the Depositary (which shall be The
Depository Trust Company) or its nominee. Except under the limited circumstances
described below, Series E Notes represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Series E Notes in
definitive form. The Global Securities described above may not be transferred
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or to a
successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will
not be considered the Holders thereof for any purpose under the Indenture, and
no Global Security representing a Series E Note shall be exchangeable, except
for another Global Security of like denomination and tenor to be registered in
the name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series E Notes
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as a Depositary for such Global Security and no successor Depositary
shall have been appointed, or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when the Depositary is required to be so registered to act as
such Depositary and no successor Depositary shall have been appointed, (ii) the
Company in its sole discretion determines that such Global Security shall be so
exchangeable, or (iii) there shall have occurred an Event of Default with
respect to the Series E Notes. Any Global Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Series E Notes registered in
such names as the Depositary shall direct.
SECTION 107. Transfer.
--------
No service charge will be made for any transfer or exchange of
Series E Notes, but payment will be required of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
The Company shall not be required (a) to issue, transfer or
exchange any Series E Notes during a period beginning at the opening of business
fifteen (15) days before the day of the mailing of a notice of redemption, and
ending at the close of business on the day of the mailing, or (b) to transfer or
exchange any Series E Notes called for redemption.
SECTION 108. Redemption.
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The Series E Notes shall be subject to redemption at the
option of the Company, in whole, but not in part, without premium or penalty, at
any time or from time to time on the last Interest Payment Date relating to any
Fixed Rate Period and on any Interest Payment Date relating to a Floating Rate
Period, at a Redemption Price equal to 100% of the principal amount to be
redeemed plus accrued but unpaid interest, including Additional Interest, if
any, to the Redemption Date. In addition, upon the occurrence of a Special Event
at any time, the Company may, within ninety (90) days following the occurrence
thereof and subject to the terms and conditions of the Indenture, elect to
redeem the Series E Notes, in whole, but not in part, at a price equal to 100%
of the principal amount to be redeemed plus any accrued but unpaid interest
(including Additional Interest) to the date of redemption (any date of
redemption as provided for in this paragraph herein called a "Redemption Date").
The Series E Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section
1104 of the Original Indenture.
ARTICLE 2
Distribution Procedures
Article 2 sets forth the procedures to determine the
Distribution Rate, Distribution Periods and Distribution Payment Dates for the
Preferred Securities. While the Preferred Securities are outstanding, the
Interest Rate, Interest Periods, Interest Payment Dates and associated terms
relating to the Series E Notes shall be the same as the Distribution Rate,
Distribution Periods and Distribution Payment Dates and associated terms
relating to the Preferred Securities. If the Securities Trust is terminated and
the Series E Notes are distributed to the holders of the Preferred Securities,
subject to Section 103 herein, the below described procedures will be directly
applicable to the Series E Notes.
SECTION 201. Distributions.
-------------
Distributions shall accrue from the Original Issue Date until
the Redemption Date (as defined in the Trust Agreement). During the Initial
Fixed Rate Period, Distributions will be payable semiannually in arrears on
April 1 and October 1 of each year, commencing on April 1, 2003. During any
Fixed Rate Period, other than the Initial Fixed Rate Period, Distributions will
be payable semiannually in arrears on the first day of the calendar quarter that
begins six months after the first day of the Fixed Rate Period and on the first
day of each second quarter thereafter during such Fixed Rate Period. During any
Floating Rate Period, Distributions will be payable quarterly in arrears on
January 1, April 1, July 1 and October 1 of each year.
If any Distribution Payment Date with respect to a Fixed Rate
Period is not a Business Day, Distributions will be payable, without interest,
on the immediately succeeding Business Day, with the same force and effect as if
payment was made on the date such payment was originally payable. If any
Distribution Payment Date with respect to a Floating Rate Period is not a
Business Day, then Distributions will be payable on the immediately succeeding
Business Day and Distributions (except for a Distribution Payment Date that
coincides with the Redemption Date (as defined in the Trust Agreement)) shall
accrue to the actual payment date.
The amount of Distributions payable on each Distribution
Payment Date relating to a Fixed Rate Period will be computed on the basis of a
360-day year of twelve 30-day months. The amount of Distributions payable on
each Distribution Payment Date in respect of a Floating Rate Period will be
computed by multiplying the per annum Distribution Rate in effect for such
Distribution Period by a fraction, the numerator of which will be the actual
number of days in such Distribution Period (or portion thereof) (determined by
including the first day thereof and excluding the last thereof) and the
denominator of which will be 360, and multiplying the rate so obtained by
$1,000.
Distributions on the Preferred Securities will be deferred
during any Extension Period but will continue to accrue. The payment of such
Distributions, together with any interest thereon, will be distributed to the
Holders of Trust Securities as received at the end of any Extension Period.
Distributions on the Trust Securities shall be made and shall
be deemed payable on each Distribution Payment Date only to the extent that the
Trust has legally and immediately available funds in the Payment Account (as
defined in the Trust Agreement) for the payment of such Distributions.
Distributions, including Additional Amounts, if any, on the
Trust Securities on each Distribution Date shall be payable to the Holders
thereof as they appear on the Securities Register for the Trust Securities on
the Record Date.
Each Trust Security upon registration of transfer of or in
exchange for or in lieu of any other Trust Security shall carry the rights of
Distributions accrued (including Additional Amounts, if any) and unpaid, and to
accrue (including Additional Amounts, if any), which were carried by such other
Trust Security.
SECTION 202. Distribution Rate.
-----------------
During the Initial Fixed Rate Period, the Distribution Rate
shall be the Initial Distribution Rate.
Prior to the expiration of the Initial Fixed Rate Period and
any subsequent Fixed Rate Period or Distribution Period with respect to a
Floating Rate Period, the Company and the Administrative Trustees will have the
option to remarket the Preferred Securities to establish a new Fixed Rate for a
new Fixed Rate Period (to take effect upon expiration of such Fixed Rate Period
or Distribution Period within the current Floating Rate Period, as the case may
be). If the Company and the Administrative Trustees elect to conduct a
Remarketing of the Preferred Securities for a new Fixed Rate Period, the Company
and Administrative Trustees shall not less than 20 nor more than 35 Business
Days prior to the related Election Date, notify the Clearing Agency, Property
Trustee, Indenture Trustee, Calculation Agent and Remarketing Agent. If the
Preferred Securities are not issued in global, fully registered form to the
Clearing Agency, such notice shall be delivered to the Holders of the Preferred
Securities instead of the Clearing Agency. Such notice shall indicate the length
of the proposed new Fixed Rate Period and the proposed Remarketing Date. The
Company and the Administrative Trustees shall have the right to terminate a
Remarketing at any time prior to the Election Date by notice of such termination
to the Clearing Agency, the Remarketing Agent, the Property Trustee, the
Indenture Trustee and the Calculation Agent.
If the Remarketing Agent has determined that it will be able
to remarket all Preferred Securities tendered or deemed tendered for purchase in
the Remarketing at a Fixed Rate and at a price of $1,000 per Preferred Security,
on such Remarketing Date, the Distribution Rate for the new Fixed Rate Period
will be the Fixed Rate determined by the Remarketing Agent, which will be the
rate per annum (rounded to the nearest one-thousandth (0.001) of one percent per
annum) which the Remarketing Agent determines, in its sole judgment, to be the
lowest Fixed Rate per annum, if any, that will enable it to remarket all
Preferred Securities tendered or deemed tendered for Remarketing at a price of
$1,000 per Preferred Security.
If the Company and the Administrative Trustees do not elect to
remarket the Preferred Securities or have terminated a Remarketing or the
Remarketing Agent is unable to remarket all of the Preferred Securities tendered
or deemed tendered for a purchase price of $1,000 per Preferred Security, the
Distribution Rate shall be the Floating Rate and the new Distribution Period
shall be a Floating Rate Period.
The Calculation Agent shall calculate the Floating Rate as
follows:
(1) The Calculation Agent shall calculate the Floating Rate
with respect to each Distribution Period in a Floating Rate Period by
determining 3-month LIBOR as of the Floating Rate Determination Date preceding
such Distribution Period, in which case, the Floating Rate will be 3-month LIBOR
plus 3.10%.
(2) In the event no 3-month LIBOR appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on a Floating Rate
Determination Date, the Calculation Agent shall request the principal London
offices of each of four major banks in the London interbank market selected by
the Calculation Agent (after consultation with the Company) to provide a
quotation of the rate (the "Rate Quotation") at which three-month deposits in
amounts of not less than $1,000,000 are offered by it to prime banks in the
London interbank market, as of approximately 11:00 a.m., London time, on such
Floating Rate Determination Date, that is representative of single transactions
at such time (the "Representative Amounts"). If at least two Rate Quotations are
provided, the Floating Rate will be the arithmetic mean of the Rate Quotations
obtained by the Calculation Agent, plus 3.10%.
(3) In the event no 3-month LIBOR appears on Telerate Page
3750 as of approximately 11:00 a.m., London time, on a Floating Rate
Determination Date and there are fewer than two Rate Quotations, the Floating
Rate will be the arithmetic mean of the rates quoted at approximately 11:00
a.m., New York City time, on such Floating Rate Determination Date, by three
major banks in New York City selected by the Calculation Agent (after
consultation with the Company), for loans in Representative Amounts in U.S.
dollars to leading European banks, having an index maturity of three months for
a period commencing on the second London Business Day immediately following such
Floating Rate Determination Date, plus 3.10%; provided, however, that if fewer
than three banks selected by the Calculation Agent are quoting such rates, the
Floating Rate for the applicable Floating Rate Period will be the Floating Rate
in effect for the preceding Floating Rate Period.
If the Company elects to defer interest during a Fixed Rate
Period, Distributions will continue to accrue at the Fixed Rate until the
expiration of the Fixed Rate Period. Prior to the expiration of such Fixed Rate
Period and any Fixed Rate Period during the Extension Period, the Company and
the Administrative Trustees will have the option to remarket the Preferred
Securities for a new Fixed Rate Period (to take effect upon expiration of such
Fixed Rate Period). If the Company and the Trust do not remarket the Preferred
Securities, the Floating Rate during the Extension Period shall be determined as
provided herein, but shall not be less than the Fixed Rate for the Fixed Rate
Period just ended. If the Company elects to defer interest during a Floating
Rate Period, Distributions will continue to accrue at the applicable Floating
Rate, reset quarterly, subject to the right of the Company and the
Administrative Trustees to remarket the Preferred Securities prior to any
Distribution Payment Date in order to establish a new Fixed Rate for a new Fixed
Rate Period in accordance with the procedures set forth herein.
SECTION 203. Distribution Periods.
--------------------
In accordance with Section 202 and the Remarketing Procedures,
the Company and the Trust may, prior to the expiration of a Fixed Rate Period or
to a Distribution Payment Date with respect to a Floating Rate Period, elect to
remarket the Preferred Securities to establish a new Fixed Rate for a new Fixed
Rate Period. A Fixed Rate Period must be for a duration of at least six months,
may not extend beyond the Stated Maturity of the Series E Notes, shall begin on
the first day of a calendar quarter (other than the Initial Fixed Rate Period)
and may not end on a day other than the last day of a calendar quarter. If a new
Fixed Rate for a new Fixed Rate Period is set in a Remarketing, a new Fixed Rate
Period shall commence following the expiration of the then current Fixed Rate
Period or Distribution Period within the current Floating Rate Period, as the
case may be. If a new Fixed Rate for a new Fixed Rate Period is not set, for any
reason, a Floating Rate Period, and the Floating Rate, reset quarterly, shall be
in effect until the Company and the Administrative Trustees remarket the
Preferred Securities and set a new Fixed Rate for a new Fixed Rate Period in
accordance with the procedures set forth herein.
ARTICLE 3
Remarketing Procedures
Article 3 sets forth the Remarketing Procedures as set forth
in the Trust Agreement to determine the applicable Fixed Rate for the Preferred
Securities. If the Securities Trust is terminated and the Series E Notes are
distributed to the holders of the Preferred Securities subject to Section 103
herein, the below described procedures will be directly applicable to the Series
E Notes.
SECTION 301. Election to Remarket.
--------------------
If the Company and the Administrative Trustees elect to
conduct a remarketing, the Trust, not less than 20 nor more than 35 Business
Days prior to the related Election Date, is required to give the notice of
remarketing of the Preferred Securities to the Clearing Agency, Property
Trustee, Indenture Trustee, Calculation Agent and Remarketing Agent. If the
Preferred Securities are not issued in global, fully registered form, such
notice shall be delivered to the Holders of the Preferred Securities instead of
the Clearing Agency. Such notice will describe the Remarketing and will indicate
the length of the proposed new Fixed Rate Period and the proposed Remarketing
Date. At any time prior to the Election Date, the Company and the Administrative
Trustees may elect to terminate a Remarketing by giving the Clearing Agency, the
Remarketing Agent, the Property Trustee, the Indenture Trustee and the
Calculation Agent notice of such termination.
SECTION 302. Notice of Election
Not later than 4:00 P.M., New York City time, on an Election
Date, each Holder of Preferred Securities may give (through the facilities of
the Clearing Agency in the case of Book-Entry Preferred Securities Certificates
(as defined in the Trust Agreement)), a notice to the Property Trustee of its
election ("Notice of Election") (i) to retain and not to have all or any portion
of the Preferred Securities owned by it remarketed in the Remarketing or (ii) to
tender all or any portion of such Preferred Securities for purchase in the
Remarketing (such portion, in either case, is required to be in the Liquidation
Amount (as defined in the Trust Agreement) of $1,000 or any integral multiple
thereof). Any Notice of Election given to the Property Trustee will be
irrevocable and may not be conditioned upon the level at which the Fixed Rate is
established in the Remarketing. Promptly after 4:30 P.M., New York City time, on
such Election Date, the Property Trustee, based on the Notices of Election
received by it through the Clearing Agency (or from the Holders if Definitive
Preferred Securities Certificates have been issued) prior to such time, will
notify the Trust, the Company and the Remarketing Agent of the number of
Preferred Securities to be retained by holders of Preferred Securities and the
number of Preferred Securities tendered for purchase in the Remarketing.
If any Holder of Preferred Securities gives a Notice of
Election to tender Preferred Securities as described above, the Preferred
Securities so subject to such Notice of Election will be deemed tendered for
purchase in the Remarketing, notwithstanding any failure by such Holder to
deliver or properly deliver such Preferred Securities to the Remarketing Agent
for purchase. If any Holder of Preferred Securities fails timely to deliver a
Notice of Election, as described above, such Preferred Securities will be deemed
tendered for purchase in such Remarketing, notwithstanding such failure or the
failure by such Holder to deliver or properly deliver such Preferred Securities
to the Remarketing Agent for purchase.
The right of each Holder of Preferred Securities to have
Preferred Securities tendered for purchase shall be limited to the extent that
(i) the Remarketing Agent conducts a Remarketing pursuant to the terms of the
Remarketing Agreement, (ii) Preferred Securities tendered have not been called
for redemption, (iii) the Remarketing Agent is able to find a purchaser or
purchasers for tendered Preferred Securities at a Fixed Rate and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent.
Any Holder of Preferred Securities that desires to continue to
retain a number of Preferred Securities, but only if the Fixed Rate is not less
than a specified rate per annum, should submit a Notice of Election to tender
such Preferred Securities and separately notify the Remarketing Agent of its
interest at the telephone number set forth in the notice of Remarketing. If such
Holder so notifies the Remarketing Agent, the Remarketing Agent will give
priority to such Holder's purchase of such number of Preferred Securities in the
Remarketing, providing that the Fixed Rate is not less than such specified rate.
SECTION 303. Determination of Distribution Rate.
----------------------------------
If Holders submit Notices of Election to retain all of the
Preferred Securities then outstanding, the Fixed Rate will be the rate
determined by the Remarketing Agent, in its sole discretion, as the rate that
would have been established had a Remarketing been held on the related
Remarketing Date.
On any Remarketing Date on which the remarketing is to be
conducted, the Remarketing Agent will use commercially reasonable efforts to
remarket, at a price equal to 100% of the Liquidation Amount thereof, Preferred
Securities tendered or deemed tendered for purchase. Except as provided in the
previous paragraph of this Section 303, if, as a result of such efforts, on any
Remarketing Date, the Remarketing Agent has determined that it will be able to
remarket all Preferred Securities tendered or deemed tendered for purchase in
the Remarketing at a Fixed Rate and at a price of $1,000 per Preferred Security,
prior to 4:00 P.M., New York City time, on such Remarketing Date, the
Remarketing Agent will determine the Fixed Rate, which will be the rate per
annum (rounded to the nearest one-thousandth (0.001) of one percent per annum)
which the Remarketing Agent determines, in its sole judgment, to be the lowest
Fixed Rate per annum, if any, that will enable it to remarket all Preferred
Securities tendered or deemed tendered for remarketing at a price of $1,000 per
Preferred Security.
If the Remarketing Agent is unable to remarket by 4:00 P.M.,
New York City time on the third Business Day prior to the Remarketing Settlement
Date, all Preferred Securities tendered or deemed tendered for a purchase at a
price of $1,000 per Preferred Security, the Distribution Rate for the next
Distribution Period shall be the Floating Rate. In such case, no Preferred
Securities will be sold in the Remarketing and each Holder will continue to hold
its Preferred Securities at the Floating Rate.
All Preferred Securities tendered or deemed tendered in the
Remarketing will be automatically delivered to the account of the Remarketing
Agent through the facilities of the Clearing Agency against payment of the
purchase price therefor on the Remarketing Settlement Date. The Remarketing
Agent will make payment to the Clearing Agency Participant of each tendering
holder of Preferred Securities in the Remarketing through the facilities of the
Clearing Agency by the close of business on the Remarketing Settlement Date.
In accordance with the Clearing Agency's normal procedures, on
the Remarketing Settlement Date, the transaction described above with respect to
each Preferred Security tendered for purchase and sold in the Remarketing, will
be executed through the Clearing Agency Participants, will be debited and
credited and such Preferred Securities delivered by book entry as necessary to
effect purchases and sales of such Preferred Securities. The Clearing Agency is
expected to make payment in accordance with its normal procedures.
If any Holder selling Preferred Securities in the Remarketing
fails to deliver such Preferred Securities, the Clearing Agency Participant of
such selling Holder and of any other person that was to have purchased Preferred
Securities in the Remarketing may deliver to any such other person a number of
Preferred Securities that is less than the number of Preferred Securities that
otherwise was to be purchased by such person. In such event, the number of
Preferred Securities to be so delivered will be determined by such Clearing
Agency Participant and delivery of such lesser number of Preferred Securities
will constitute good delivery.
The previous three paragraphs shall not apply if Definitive
Preferred Securities Certificates have been issued.
The Remarketing Agent is not obligated to purchase any
Preferred Securities that would otherwise remain unsold in a Remarketing.
Neither the Trust, any trustee of the Securities Trust, the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of Preferred Securities for Remarketing.
SECTION 304. Remarketing Agent
Prior to the issuance of the Preferred Securities, the Company
and the Securities Trust will enter into the Remarketing Agreement with the
Remarketing Agent, providing, among other things, that the Remarketing Agent
will follow the Remarketing Procedures for the purposes of determining the
applicable Fixed Rate. The Company will pay the Remarketing Agent compensation
for its services under the Remarketing Agreement.
ARTICLE 4
Miscellaneous Provisions
SECTION 401. Recitals by Company.
-------------------
The recitals in this Fourth Supplemental Indenture are made by
the Company only and not by the Trustee, and all of the provisions contained in
the Original Indenture in respect of the rights, privileges, immunities, powers
and duties of the Trustee shall be applicable in respect of Series E Notes and
of this Fourth Supplemental Indenture as fully and with like effect as if set
forth herein in full.
SECTION 402. Ratification and Incorporation of Original
Indenture.
As heretofore supplemented and as supplemented hereby, the
Original Indenture is in all respects ratified and confirmed, and the Original
Indenture, as heretofore supplemented and modified, and this Fourth Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
SECTION 403. Executed in Counterparts.
------------------------
This Fourth Supplemental Indenture may be simultaneously
executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, each party hereto has caused this instrument to be signed in
its name and behalf by its duly authorized officers, all as of the day and year
first above written.
ATTEST: ALABAMA POWER COMPANY
By: By:
---------------------------
Assistant Secretary Executive Vice President, Chief
Financial Officer and Treasurer
ATTEST: JPMORGAN CHASE BANK
By: By:
Trust Officer Vice President
EXHIBIT A
NO. 1 CUSIP NO. __________
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE
PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
ALABAMA POWER COMPANY
SERIES E JUNIOR SUBORDINATED NOTE
DUE OCTOBER 1, 2042
Principal Amount: $_________
Record Date: Business Day immediately preceding the Interest
Payment Date
Original Issue Date: October 2, 2002
Stated Maturity: October 1, 2042
Interest Rate: Determined by procedures set forth in the Indenture
Interest Payment Dates: Determined by procedures set forth in the Indenture
Authorized Denomination: $1,000
Alabama Power Company, an Alabama corporation (the "Company",
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of ______________
DOLLARS ($_________) on the Stated Maturity shown above (or upon earlier
redemption), and to pay interest thereon from the Original Issue Date shown
above, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, on each Interest Payment Date commencing on the
Interest Payment Date next succeeding the Original Issue Date shown above and on
the Stated Maturity (or upon earlier redemption) at the prevailing Interest Rate
until the principal hereof is paid or made available for payment and on any
overdue principal and on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
(other than an Interest Payment Date that is the Stated Maturity or on a
Redemption Date) will, as provided in such Indenture, be paid to the Person in
whose name this Note (the "Note") is registered on the Record Date as specified
above next preceding such Interest Payment Date, provided that any interest
payable at Stated Maturity or on any Redemption Date will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Record Date and may either be paid to the
Person in whose name this Note is registered on a Special Record Date for the
payment of such defaulted interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Notes of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Notes of this series shall be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Note in respect of a Floating
Rate Period (or a portion thereof) will be computed by multiplying the per annum
Interest Rate in effect for such Floating Rate Period by a fraction, the
numerator of which will be the actual number of days in such Floating Rate
Period (or portion thereof) (determined by including the first day thereof and
excluding the last thereof) and the denominator of which will be 360, and
multiplying the rate so obtained by the principal amount hereof. The amount of
interest on this Note payable on each Interest Payment Date in respect of a
Fixed Rate Period will be computed on the basis of a 360-day year consisting of
twelve 30-day months.
The Company has the right to defer payments of interest on
this Note by extending the interest payment period from time to time on this
Note (an "Extension Period").
If the Company decides to defer interest payments on this
Note, the Extension Period shall not exceed five consecutive years. An Extension
Period shall not extend beyond the stated maturity of this Note. Prior to the
termination of any Extension Period, the Company may further defer payments of
interest provided that the Extension Period, together with all such previous and
further extensions thereof, may not exceed five consecutive years. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Company may select a new Extension Period, subject to the above requirements.
There could be multiple Extension Periods of varying lengths throughout the term
of this Note.
During an Extension Period unpaid interest (together with
interest thereon) will compound on each Interest Payment Date at the prevailing
Interest Rate ("Deferred Interest"). Upon the termination of each Extension
Period, which shall be an Interest Payment Date, the Company shall pay all
Deferred Interest on the next succeeding Interest Payment Date to the Person in
whose name this Note is registered at the close of business on the Record Date
for such Interest Payment Date, provided that any Deferred Interest payable at
Stated Maturity or on any Redemption Date will be paid to the Person to whom
principal is payable.
If the Company shall have given notice of its election to
select any Extension Period, the Company shall not (i) declare or pay any
dividend or distribution on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock, or make any guarantee
payments with respect to the foregoing and (ii) make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees other than its guarantee of the Preferred
Securities issued by the Securities Trust) issued by the Company that rank pari
passu with or junior to this Note. The Company shall give the Holder of this
Note, the Trustee, the Remarketing Agent and the Calculation Agent notice of its
selection or extension of an Extension Period at least one Business Day prior to
the earlier of (i) the Record Date relating to the Interest Payment Date on
which the Extension Period is to commence or relating to the Interest Payment
Date on which an Extension Period that is being extended would otherwise
terminate or (ii) the date the Company or Securities Trust is required to give
notice to the New York Stock Exchange or other applicable self-regulatory
organization of the record date or the date distributions are payable.
The Company also shall be obligated to pay when due and
without extension all additional amounts as may be required so that the net
amount received and retained by the Holder of this Note (if the Holder is a
Securities Trust) after paying taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States or any other taxing authority will not be less than the amounts such
Holder would have received had no such taxes, duties, assessments, or other
governmental charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
E Notes shall be made upon surrender of the Series E Notes at the Corporate
Trust Office of the Trustee, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least 16 days prior to the
date for payment by the Person entitled thereto.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture),
and this Note is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided, and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: ______ __, ____.
ALABAMA POWER COMPANY
By:
------------------------------------------------
William B. Hutchins, III
Executive Vice President, Chief Financial
Officer and Treasurer
Attest:
Assistant Secretary
{Seal of ALABAMA POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
---------------------------
Authorized Officer
(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior
Subordinated Notes of the Company (the "Notes"), issued and issuable in one or
more series under a Subordinated Note Indenture, dated as of January 1, 1997, as
heretofore supplemented and as supplemented by the Fourth Supplemental Indenture
(the "Fourth Supplement Indenture") dated as of October 2, 2002 (collectively,
the "Indenture") between the Company and JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank), as trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
incidental thereto reference is hereby made for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes issued thereunder and of the terms upon
which said Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof as Series E Junior Subordinated
Notes due October 1, 2042 (the "Series E Notes") in the aggregate principal
amount of up to $206,186,000. Capitalized terms used herein for which no
definition is provided herein shall have the meanings set forth in the
Indenture.
While the Preferred Securities are outstanding, (i) the
Interest Rate, Interest Periods, Interest Payment Dates and associated terms
relating to this Note shall be the same as the Distribution Rate, Distribution
Periods, Distribution Payment Dates and associated terms relating to the
Preferred Securities, established in Article 2 of the Fourth Supplemental
Indenture and (ii) the Remarketing Procedures relating to this Note shall be the
same as those procedures relating to the Preferred Securities, established in
Article 3 to the Fourth Supplemental Indenture.
If the Securities Trust is terminated and this Note is
distributed to holders of Preferred Securities, subject to Section 103 of the
Fourth Supplemental Indenture, the terms and procedures relating to the
Preferred Securities established in Articles 2 and 3 of the Fourth Supplemental
Indenture shall be directly applicable to this Note.
The Company shall have the right, subject to the terms and
conditions of the Indenture, to redeem this Note on the last Interest Payment
Date relating to a Fixed Rate Period and on any Interest Payment Date relating
to a Floating Rate Period at the option of the Company, without premium or
penalty, in whole, but not in part, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus accrued but unpaid interest, including any
Additional Interest, if any, to the Redemption Date. Upon the occurrence of a
Special Event (as defined below) at any time, the Company may, within 90 days
following the occurrence thereof and subject to the terms and conditions of the
Indenture, redeem this Note without premium or penalty, in whole, but not in
part, at a Redemption Price equal to 100% of the principal amount thereof plus
accrued but unpaid interest, including any Additional Interest, if any, to the
Redemption Date. A Special Event may be a Tax Event or an Investment Company Act
Event. "Tax Event" means that the Company and the Administrative Trustees shall
have received an Opinion of Counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein or
(b) any amendment to, or change in, an interpretation or application of such
laws or regulations, there is more than an insubstantial risk that (i) the
related Securities Trust would be subject to United States federal income tax
with respect to income accrued or received on the Series E Notes, (ii) interest
payable on the Series E Notes would not be deductible by the Company for United
States federal income tax purposes, or (iii) the related Securities Trust would
be subject to more than a de minimis amount of other taxes, duties or other
governmental charges, which change or amendment becomes effective on or after
the Original Issue Date. "Investment Company Act Event" means that the Company
shall have received an Opinion of Counsel to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the related Securities Trust is or will be considered an
"investment company" which is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
Original Issue Date.
If an Event of Default with respect to the Notes of this
series shall occur and be continuing, the principal of the Notes of this series
may be declared due and payable in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes of each
series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in principal
amount of the Notes at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar and duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Notes of
this series, of authorized denominations and of like tenor and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same upon surrender of the Note or Notes to be exchanged
at the office or agency of the Company.
This Note shall be governed by, and construed in accordance
with, the internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in UNIF GIFT MIN ACT - ____ Custodian ____
Common (Cust) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
Entireties
JT TEN - as joints tenants with
right of survivorship (State)
and not as tenants in
common
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and
transfer(s) unto __________ (please insert Social Security or other identifying
number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing agent to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated: ________________ __________________________________
NOTICE: The signature to
this assignment
must correspond
with the name as
written upon the
face of the within
instrument in
every particular
without alteration
or enlargement, or
any change
whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
-----------------------------
Authorized Officer