Exhibit 4.2
ALABAMA POWER COMPANY
TO
JPMORGAN CHASE BANK,
TRUSTEE
TWENTY-SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 21, 2004
$150,000,000
SERIES AA 5 5/8% SENIOR NOTES
DUE APRIL 15, 2034
TABLE OF CONTENTS1
PAGE
ARTICLE 1 - Series AA Senior Notes...........................................2
SECTION 101. Establishment.........................................2
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SECTION 102. Definitions...........................................3
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SECTION 103. Payment of Principal and Interest.....................4
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SECTION 104. Denominations.........................................5
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SECTION 105. Global Securities.....................................5
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SECTION 106. Transfer..............................................5
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SECTION 107. Redemption at the Company's Option....................6
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SECTION 108. Mandatory Redemption..................................6
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ARTICLE 2 - Special Insurance Provisions.....................................7
SECTION 201. Supplemental Indentures...............................7
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SECTION 202. Insurance Policy Payment Procedures...................8
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SECTION 203. Application of Term "Outstanding" to Series AA Notes..9
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SECTION 204. Concerning the Special Insurance Provisions...........9
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ARTICLE 3 - Miscellaneous Provisions.........................................9
SECTION 301. Recitals by Company...................................9
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SECTION 302. Ratification and Incorporation of Original Indenture..9
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SECTION 303. Executed in Counterparts.............................10
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EXHIBIT A - FORM OF SERIES AA SENIOR NOTES...................................A
EXHIBIT B - CERTIFICATE OF AUTHENTICATION....................................B
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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 TWENTY-SEVENTH SUPPLEMENTAL INDENTURE is made as of the 21st day
of April, 2004, 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, 4 New York Plaza, New York, New York 10004 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Note
Indenture, dated as of December 1, 1997 (the "Original Indenture"), with the
Trustee, as supplemented by a First Supplemental Indenture, dated as of December
12, 1997 (the "First Supplemental Indenture"), a Second Supplemental Indenture,
dated as of February 26, 1998 (the "Second Supplemental Indenture"), a Third
Supplemental Indenture, dated as of April 23, 1998 (the "Third Supplemental
Indenture"), a Fourth Supplemental Indenture, dated as of August 19, 1998 (the
"Fourth Supplemental Indenture"), a Fifth Supplemental Indenture, dated as of
September 17, 1998 (the "Fifth Supplemental Indenture"), a Sixth Supplemental
Indenture, dated as of September 24, 1998 (the "Sixth Supplemental Indenture"),
a Seventh Supplemental Indenture, dated as of October 15, 1998 (the "Seventh
Supplemental Indenture"), an Eighth Supplemental Indenture, dated as of November
3, 1998 (the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture,
dated as of November 17, 1998 (the "Ninth Supplemental Indenture"), a Tenth
Supplemental Indenture, dated as of May 26, 1999 (the "Tenth Supplemental
Indenture"), an Eleventh Supplemental Indenture, dated as of August 19, 1999
(the "Eleventh Supplemental Indenture"), a Twelfth Supplemental Indenture, dated
as of September 30, 1999 (the "Twelfth Supplemental Indenture"), a Thirteenth
Supplemental Indenture, dated as of May 18, 2000 (the "Thirteenth Supplemental
Indenture"), a Fourteenth Supplemental Indenture, dated as of August 29, 2001
(the "Fourteenth Supplemental Indenture"), a Fifteenth Supplemental Indenture,
dated as of August 29, 2001 (the "Fifteenth Supplemental Indenture"), a
Sixteenth Supplemental Indenture, dated as of June 28, 2002 (the "Sixteenth
Supplemental Indenture"), a Seventeenth Supplemental Indenture, dated as of
October 22, 2002 (the "Seventeenth Supplemental Indenture"), an Eighteenth
Supplemental Indenture, dated as of November 26, 2002 (the "Eighteenth
Supplemental Indenture"), a Nineteenth Supplemental Indenture, dated as of
December 12, 2002 (the "Nineteenth Supplemental Indenture"), a Twentieth
Supplemental Indenture, dated as of February 19, 2003 (the "Twentieth
Supplemental Indenture"), a Twenty-First Supplemental Indenture, dated as of
February 19, 2003 (the "Twenty-First Supplemental Indenture"), a Twenty-Second
Supplemental Indenture, dated as of March 14, 2003 (the "Twenty-Second
Supplemental Indenture"), a Twenty-Third Supplemental Indenture, dated as of
April 23, 2003 (the "Twenty-Third Supplemental Indenture"), a Twenty-Fourth
Supplemental Indenture, dated as of May 7, 2003 (the "Twenty-Fourth Supplemental
Indenture"), a Twenty-Fifth Supplemental Indenture, dated as of November 20,
2003 (the "Twenty-Fifth Supplemental Indenture") and a Twenty-Sixth Supplemental
Indenture, dated as of February 17, 2004 (the "Twenty-Sixth Supplemental
Indenture");
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as further
supplemented by this Twenty-Seventh Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Senior
Notes may at any time be established pursuant to a supplemental indenture
executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a
new series of Senior Notes;
WHEREAS, additional Senior 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 Twenty-Seventh 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 1Series AA Senior Notes
SECTION 101. Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
Series AA 5 5/8% Senior Notes due April 15, 2034 (the "Series AA Notes").
There are to be authenticated and delivered $150,000,000 aggregate
principal amount of Series AA Notes, and such principal amount of the Series AA
Notes may be increased from time to time pursuant to Section 301 of the Original
Indenture. All Series AA Notes need not be issued at the same time and such
series may be reopened at any time, without the consent of any Holder, for
issuances of additional Series AA Notes. Any such additional Series AA Notes
will have the same interest rate, maturity and other terms as those initially
issued. No Series AA Notes shall be authenticated and delivered in excess of the
principal amount as so increased except as provided by Sections 203, 303, 304,
907 or 1107 of the Original Indenture. The Series AA Notes shall be issued in
definitive fully registered form.
The Series AA Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Series AA Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
AA Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series AA 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.
The Series AA Notes will not have a sinking fund.
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.
"Due for Payment" means, when referring to the principal of a Series AA
Note, the Stated Maturity and does not refer to any earlier date on which
payment is due by reason of call for redemption, acceleration or other
advancement of maturity and means, when referring to interest on a Series AA
Note, the stated date for payment in interest.
"Fiscal Agent" means U.S. Bank Trust National Association, New York,
New York or its successor.
"Insurance Agreement" means that certain Insurance Agreement, dated as
of April 21, 2004, by and between the Company and the Insurer.
"Insurer" means Financial Guaranty Insurance Company, a New York stock
insurance company, or any successor thereto.
"Interest Payment Dates" means January 15, April 15, July 15 and
October 15 of each year, commencing July 15, 2004.
"Mandatory Redemption Event" means the Company's failure to comply with
Section 3.01 or Section 3.02 of the Insurance Agreement, the continuance of such
failure for a period in excess of 30 days after receipt by the Company of
written notice thereof from the Insurer and the receipt by the Trustee of notice
thereof in accordance with Section 108 hereof.
"Nonpayment" means the failure by the Company to provide sufficient
funds to the Paying Agent for payment in full of all principal or interest on
the Series AA Notes Due for Payment and includes any payment of principal or
interest (as applicable) made to a Holder of the Series AA Notes by or on behalf
of the Company which has been recovered from such Holder pursuant to the United
States Bankruptcy Code by a trustee in bankruptcy in accordance with a final,
nonappealable order of a court having competent jurisdiction.
"Original Issue Date" means April 21, 2004.
"Policy" means the surety bond issued by the Insurer that guarantees
payment of principal of and interest on the Series AA Notes Due for Payment.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date (whether or not a Business Day).
"Stated Maturity" means April 15, 2034.
SECTION 103. Payment of Principal and Interest. The principal of the
Series AA Notes shall be due at Stated Maturity (unless earlier redeemed). The
unpaid principal amount of the Series AA Notes shall bear interest at the rate
of 5 5/8% per annum until paid or duly provided for. Interest shall be paid
quarterly in arrears on each Interest Payment Date to the Person in whose name
the Series AA Notes are registered on the Regular 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. Any such interest that is not so punctually paid or duly
provided for will forthwith cease to be payable to the Holders on such Regular
Record Date and may either be paid to the Person or Persons in whose name the
Series AA 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, notice
whereof shall be given to Holders of the Series AA 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 AA 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.
Payments of interest on the Series AA Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series AA Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series AA Notes is not a Business Day, then payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date the
payment was originally payable.
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Series AA Notes shall be made upon surrender of the
Series AA Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series AA Notes shall be paid 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 or other electronic 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. Regardless of any other
arrangement agreed to between the Company and the Paying Agent, the Company
shall deposit with the Paying Agent sufficient funds for the principal payment
due at the Stated Maturity no later than one Business Day prior to the Stated
Maturity.
SECTION 104. Denominations. The Series AA Notes may be issued in
denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series AA 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 AA Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series AA 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 AA 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 AA 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 by the Company, 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 by the
Company, in each case within 90 days after the Company receives such notice or
becomes aware of such cessation, or (ii) there shall have occurred an Event of
Default with respect to the Series AA Notes. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for Series
AA Notes registered in such names as the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer
or exchange of Series AA 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 AA Notes during a period beginning at the opening of business fifteen
(15) days before the date of the mailing of a notice pursuant to Section 1104 of
the Original Indenture identifying the serial numbers of the Series AA Notes to
be called for redemption, and ending at the close of business on the day of the
mailing, or (b) to transfer or exchange any Series AA Notes theretofore selected
for redemption in whole or in part, except the unredeemed portion of any Series
AA Notes redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series AA Notes
shall be subject to redemption at the option of the Company, in whole or in
part, without premium, at any time or from time to time on or after April 21,
2009, upon not less than 30 nor more than 60 days' notice, at a Redemption Price
equal to 100% of the principal amount of the Series AA Notes to be redeemed plus
accrued and unpaid interest on such Series AA Notes to the Redemption Date.
In the event of redemption of the Series AA Notes in part only, a new
Series AA Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series AA Notes shall, with
respect to the principal thereof, be divisible by $25.
SECTION 108. Mandatory Redemption. Upon the occurrence of a Mandatory
Redemption Event, the Company shall redeem the Series AA Notes, in whole, prior
to the Stated Maturity upon not less than 30 nor more than 60 days' notice at a
Redemption Price equal to 100% of the principal amount plus accrued and unpaid
interest to the Redemption Date. A Mandatory Redemption Event will be deemed to
have occurred at the time that the Trustee receives written notice from the
Insurer of the occurrence of a Mandatory Redemption Event and such notice shall
constitute the notice required by Section 1102 of the Original Indenture and
shall not be required to be evidenced by a Board Resolution. Subject to the
notice requirements set forth herein, the Company shall redeem the Series AA
Notes (i) on April 21, 2009 if the Mandatory Redemption Event occurs on or prior
to February 20, 2009 or (ii) if the Mandatory Redemption Event occurs after
February 20, 2009, within 60 days after the occurrence of the Mandatory
Redemption Event, but in no event earlier than April 21, 2009. Any notice of
redemption required to be given by the Trustee in connection with a redemption
required by this Section 108 need not be given earlier than 15 days after the
date the Trustee receives notice of a Mandatory Redemption Event pursuant to
this Section 108.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
ARTICLE 2
Special Insurance Provisions
SECTION 201. Supplemental Indentures. The consent of the Insurer shall
be required with respect to any indenture or indentures supplemental to the
Original Indenture requiring the consent of the Holders of the Series AA Notes
pursuant to Section 902 of the Original Indenture. The Company shall deliver to
any rating agency rating the Series AA Notes notice of each indenture or
indentures supplemental to the Original Indenture and a copy thereof at least 15
days in advance of its execution and provide the Insurer with a full transcript
of all proceedings related to the execution of any such indenture or indentures
supplemental to the Original Indenture.
SECTION 202. Events of Default and Remedies. Subject to Section 107 of
the Original Indenture and to the Trust Indenture Act, including, without
limitation, Sections 316(a)(1) and 317(a) thereof, if an Event of Default with
respect to the Series AA Notes occurs and is continuing, the Insurer shall be
entitled to control and direct the enforcement of all rights and remedies
granted to the Holders of the Series AA Notes or the Trustee for the benefit of
the Holders of the Series AA Notes under the Indenture, including, without
limitation, (i) the right to accelerate the principal of the Series AA Notes as
provided in Section 502 of the Original Indenture, and (ii) the right to annul
any such declaration of acceleration, and the Insurer shall also be entitled to
approve any waiver of an Event of Default with respect to the Series AA Notes,
the obligation of the Trustee to comply with any such direction to be subject to
compliance with the conditions set forth in Sections 512 and 603(e) of the
Original Indenture (as if references in those Sections to Holders were
references to the Insurer) and the protections provided to the Trustee by
Section 601(c)(3) of the Original Indenture shall be applicable with respect to
any direction from the Insurer given pursuant hereto (as if references in said
Section to Holders were references to the Insurer). The Insurer shall be
entitled to notify the Trustee and the Company of a default referred to in
Section 501(4) of the Original Indenture relating to the Series AA Notes as if
it were the Holder of at least 25% in principal amount of the Outstanding Series
AA Notes, provided that such notice shall otherwise conform to the requirements
of said Section 501(4).
The Trustee and the Company shall give the Insurer immediate notice of
any default in the payment of the principal of or interest on the Series AA
Notes (the obligation of the Trustee to give such notice to be deemed satisfied
if the Paying Agent shall have provided the notice required by Section 203(a)
hereof). The Trustee and the Company shall give the Insurer notice of any event
which with the giving of notice or the passage of time would constitute an Event
of Default with respect to the Series A Notes within 30 days of the Trustee's or
the Company's knowledge thereof, provided that the Trustee shall not be deemed
to have knowledge thereof unless a Responsible Officer of the Trustee assigned
to its Corporate Trust Office shall have actual knowledge thereof or unless the
Trustee shall have received written notice thereof from the Company or the
Holders of at least 25% in principal amount of the Series AA Notes then
Outstanding.
No effect shall be given to payments made under the Policy in
determining whether an Event of Default with respect to the Series AA Notes has
occurred or is continuing.
SECTION 203. Insurance Policy Payment Procedures. (a) If the Paying
Agent does not have sufficient funds for any payment of principal or interest
Due for Payment by reason of the Company's Nonpayment, then any Holder of the
Series AA Notes or the Paying Agent will notify the Insurer by telephonic or
telegraphic notice, subsequently confirmed in writing, or written notice by
registered or certified mail. The Insurer shall make such payment to the Fiscal
Agent on the date on which such principal or interest is Due for Payment or
within one Business Day (as defined in the Policy) after receipt of the notice
of Nonpayment, whichever is later, and the Fiscal Agent shall make such payments
in accordance with the Policy. In addition to the foregoing:
(i) The Paying Agent shall provide the Insurer and the Fiscal Agent
with a list of the Holders entitled to receive principal or interest payments
from the Insurer under the terms of the Policy and shall make arrangements for
the Insurer and the Fiscal Agent to disburse such amount Due for Payment on any
Series AA Note to the Holder or the Paying Agent.
(ii) The Paying Agent shall, at the same time that it provides the
Insurer with the list of Holders, notify the Holders entitled to receive payment
of principal or interest on the Series AA Notes from the Insurer (A) as to the
fact of such entitlement, (B) that the Insurer will remit to them or the Paying
Agent all or part of the interest payments Due for Payment, (C) that, except as
provided in paragraph (b) below, in the event that the Holder is entitled to
receive full payment of principal from the Insurer, such Holder must tender the
Series AA Note to the Insurer or the Paying Agent with an instrument of transfer
executed in the name of the Insurer and (D) that, except as provided in
paragraph (b) below, in the event that such Holder is entitled to receive
partial payment of principal from the Insurer, such Holder must tender its
Series AA Note for payment to the Paying Agent which shall note on such Series
AA Note the portion of principal paid by the Paying Agent, and then, with an
acceptable form of assignment executed in the name of the Insurer, to the Fiscal
Agent which will then pay the unpaid portion of principal to the Holder subject
to the terms of the Policy.
(b) In the event that the Trustee has notice that any payment of
principal of or interest on a Series AA Note has been recovered from a Holder
pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in
accordance with the final, nonappealable order of a court having competent
jurisdiction, the Trustee shall notify the Insurer of such recovery in
accordance with the notice requirements of this Section 203(a) and notify all
Holders that in the event that any Holder's payment is so recovered, such Holder
will be entitled to payment from the Insurer to the extent of such recovery. The
Paying Agent shall furnish to the Insurer its records evidencing the payments of
principal of and interest on the Series AA Notes which have been made by the
Paying Agent and subsequently recovered from the Holders, and the dates on which
such payments were made.
(c) The Insurer shall, to the extent it makes payment of principal of
or interest on the Series AA Notes, become subrogated to the rights of the
recipients of such payments in accordance with the terms of the Policy and, to
evidence such subrogation, (i) in the case of subrogation as to claims for past
due interest, the Trustee shall note the Insurer's rights as subrogee on the
Security Register maintained by the Trustee upon receipt from the Insurer of
proof of the payment of interest thereon to the Holder of such Series AA Notes
and (ii) in the case of subrogation as to claims for past due principal, the
Trustee shall note the Insurer's rights as subrogee on the Security Register for
the Series AA Notes maintained by the Trustee, as Security Registrar, upon
receipt of proof of the payment of the principal thereof to the Holders of such
Series AA Notes. Notwithstanding anything in this Supplemental Indenture or the
Series AA Notes to the contrary, the Paying Agent shall make payment of such
past due interest and past due principal directly to the Insurer to the extent
that the Insurer is a subrogee with respect thereto.
SECTION 204. Application of Term "Outstanding" to Series AA Notes. In
the event that the principal and/or interest due on the Series AA Notes shall be
paid by the Insurer pursuant to the Policy, the Series AA Notes shall remain
Outstanding for all purposes of the Indenture, shall not be considered defeased
or otherwise satisfied and not be considered paid by the Company, and the
Indenture and all covenants, agreements and other obligations of the Company to
the Holders of the Series AA Notes shall continue to exist and such covenants,
agreements and other obligations shall run to the benefit of the Insurer, and
the Insurer shall be subrogated to the rights of such Holders to the extent of
each such payment.
SECTION 205. Concerning the Special Insurance Provisions. The
provisions of this Article 2 shall apply notwithstanding anything in the
Indenture to the contrary, but only so long as the Policy shall be in full force
and effect and the Insurer is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Twenty-Seventh
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 AA Notes and of this Twenty-Seventh Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 302. 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, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture, the Tenth Supplemental Indenture, the Eleventh
Supplemental Indenture, the Twelfth Supplemental Indenture, the Thirteenth
Supplemental Indenture, the Fourteenth Supplemental Indenture, the Fifteenth
Supplemental Indenture, the Sixteenth Supplemental Indenture, the Seventeenth
Supplemental Indenture, the Eighteenth Supplemental Indenture, the Nineteenth
Supplemental Indenture, the Twentieth Supplemental Indenture, the Twenty-First
Supplemental Indenture, the Twenty-Second Supplemental Indenture, the
Twenty-Third Supplemental Indenture, the Twenty-Fourth Supplemental Indenture,
the Twenty-Fifth Supplemental Indenture, the Twenty-Sixth Supplemental Indenture
and this Twenty-Seventh Supplemental Indenture shall be read, taken and
construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Twenty-Seventh 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: /s/Celia Shorts By: /s/William B. Hutchins, III
-------------------------------- -------------------------------
Assistant Secretary William B. Hutchins, III
Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: JPMORGAN CHASE BANK, as Trustee
By: /s/Diane Darconte By: /s/Carol Ng
----------------------------------------- ---------------------------
Diane Darconte Carol Ng
Trust Officer Vice President
EXHIBIT A
FORM OF SERIES AA NOTE
NO. __ CUSIP NO. 010392 55 3
ALABAMA POWER COMPANY
SERIES AA 5 5/8% SENIOR NOTE
DUE APRIL 15, 2034
Principal Amount: $__________________
Regular Record Date: 15th calendar day prior to Interest Payment Date
(whether or not a Business Day)
Original Issue Date: April 21, 2004
Stated Maturity: April 15, 2034
Interest Payment Dates: January 15, April 15, July 15 and October 15
Interest Rate: 5 5/8%
Authorized Denomination: $25 or any integral multiple thereof
Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
___________________________________________, or registered assigns, the
principal sum of ____________________________________________ DOLLARS
($______________) 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, semiannually in arrears on each Interest Payment Date
as specified above, commencing on July 15, 2004, and on the Stated Maturity (or
upon earlier redemption) at the rate per annum shown above 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 at the close of business on the Regular Record Date as
specified above next preceding such Interest Payment Date, provided that any
interest payable at the 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 Regular Record Date and may
either be paid to the Person in whose name this Note is registered at the close
of business 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 will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any Interest Payment Date would otherwise be a day
that is not a Business Day, then payment of the interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee is closed for business.
Payment of the principal of and interest due at the Stated Maturity or
earlier redemption of the Series AA Notes shall be made upon surrender of the
Series AA Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series AA Notes shall be paid 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 or other electronic 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.
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:
-----------------------
Vice President
Attest:
Assistant Secretary
{Seal of ALABAMA POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior 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 Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of December 1, 1997, as supplemented (the "Indenture"),
between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), 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 AA 5 5/8% Senior Notes
due April 15, 2034 (the "Series AA Notes") which is unlimited in aggregate
principal amount. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
The Series AA Notes (i) shall, at any time or, from time to time, on or
after April 21, 2009 upon not less than 30 nor more than 60 days' notice to the
holders thereof, be subject to optional redemption at the option of the Company,
in whole or in part, at a Redemption Price equal to 100% of the principal amount
of the Series AA Notes to be redeemed plus accrued and unpaid interest on the
Series AA Notes to the Redemption Date and (ii) shall, on or after April 21,
2009 upon not less than 30 nor more than 60 days' notice to the holders thereof,
be subject to mandatory redemption, in whole but not in part, at a Redemption
Price equal to 100% of the principal amount of the Series AA Notes plus accrued
and unpaid interest on such Series AA Notes to the Redemption Date, upon the
occurrence of the Company's failure to comply with Section 3.01 or Section 3.02
of the Insurance Agreement, dated as of April 21, 2004, by and between the
Company and Financial Guaranty Insurance Company (the "Insurer"), the
continuance of such failure for a period in excess of 30 days after receipt by
the Company of written notice thereof from the Insurer and the receipt by the
Trustee of notice thereof.
In the event of redemption of this Note in part only, a new Note or
Notes of this Series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof.
The Series AA Notes will not have a sinking fund.
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 registerable 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 $25 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.
STATEMENT OF INSURANCE
Financial Guaranty Insurance Company (the "Insurer") has issued a
surety bond containing the following provisions with respect to the Series AA
Notes, such surety bond being on file at the principal corporate trust office of
Trustee, as paying agent for the Series AA Notes (the "Paying Agent"):
The Insurer hereby unconditionally and irrevocably agrees to pay for
disbursement to the Holders that portion of the principal of and interest on the
Series AA Notes which is then Due for Payment and which the Company shall have
failed to provide. Due for Payment means, with respect to principal, the stated
maturity thereof, and does not refer to any earlier date on which the payment of
principal of the Series AA Notes is due by reason of call for redemption,
acceleration or other advancement of maturity and means, with respect to
interest, the stated date for payment of such interest.
Upon receipt of telephonic or telegraphic notice, subsequently
confirmed in writing, or written notice by registered or certified mail, from a
Holder or the Paying Agent to the Insurer that the required payment of principal
or interest has not been made by the Company to the Paying Agent, the Insurer on
the due date of such payment or within one Business Day (as defined in the
surety bond) after receipt of notice of such nonpayment, whichever is later,
will make a deposit of funds, in an account with U.S. Bank Trust National
Association, or its successor as its agent (the "Fiscal Agent"), sufficient to
make the portion of such payment not paid by the Company. Upon presentation to
the Fiscal Agent of evidence satisfactory to it of the Holder's right to receive
such payment and any appropriate instruments of assignment required to vest all
of such Holder's right to such payment in the Insurer, the Fiscal Agent will
disburse such amount to the Holder.
As used herein the term "Holder" means the person other than the
Company or the borrower(s) of note proceeds who at the time of nonpayment of a
Series AA Note is entitled under the terms of such Series AA Note to payment
thereof.
The surety bond is non-cancellable for any reason.
Financial Guaranty Insurance Company
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
entireties under Uniform Gifts to
JT TEN - as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
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 Senior Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
---------------------------------------
Authorized Officer