Exhibit 1.1
$300,000,000
Series CC 3.50% Senior Notes
due November 15, 2007
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
November 9, 2004
Banc of America Securities LLC
214 N. Tyron Street
Charlotte, North Carolina 28255
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of the Several Underwriters
Ladies and Gentlemen:
Alabama Power Company, an Alabama corporation (the "Company"), confirms
its agreement (the "Agreement") with you and the other Underwriters named in
Schedule I hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom you are acting as representatives (in such capacity you shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the Company and the purchase by the Underwriters, acting severally and not
jointly, of $300,000,000 aggregate principal amount of the Series CC 3.50%
Senior Notes due November 15, 2007 (the "Senior Notes") as set forth in Schedule
I hereto.
The Company understands that the Underwriters are making a public
offering of the Senior Notes pursuant to this Agreement. The Senior Notes will
be issued pursuant to an indenture, dated as of December 1, 1997, as heretofore
supplemented (the "Base Indenture"), between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), and as
further supplemented by a twenty-ninth supplemental indenture, dated as of
November 16, 2004, to the Base Indenture relating to the Senior Notes (the
"Supplemental Indenture" and, together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-110950,
333-110950-01, 333-110950-02 and 333-110950-03) in respect of the
Senior Notes and certain other securities has been prepared and filed
in accordance with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration
statement and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all documents
incorporated by reference therein); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus supplement,
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes,
in the form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the
Prospectus as amended or supplemented in final form by a prospectus
supplement relating to the Senior Notes in the form in which it is
filed with the Commission, pursuant to Rule 424(b) under the 1933 Act
in accordance with Section 3(e) hereof, including any documents
incorporated by reference therein as of the date of such filing, being
hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of the
1934 Act and the rules and regulations of the Commission thereunder,
and as of such time of filing, when read together with the Prospectus,
none of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder and, when read together
with the Prospectus as it otherwise may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the Company makes no
warranty or representation to the Underwriters with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
through the Representatives expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series CC Senior Notes
- Book-Entry-Only Issuance - The Depository Trust Company."
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or
supplements to the Registration Statement or the Prospectus, when any
such post-effective amendments are declared effective or supplements
are filed with the Commission, as the case may be, will comply, in all
material respects with the applicable provisions of the 1933 Act, the
1934 Act, the 1939 Act (hereinafter defined) and the General Rules and
Regulations of the Commission thereunder and do not and will not, (i)
as of the applicable effective date as to the Registration Statement
and any amendment thereto and (ii) as of the date of the Final
Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein
not misleading in the case of the Registration Statement and any
amendment thereto, and, in the light of the circumstances under which
they were made, not misleading in the case of the Final Supplemented
Prospectus as further amended or supplemented; except that the Company
makes no warranties or representations with respect to (A) that part of
the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), (B) statements or omissions made in the
Registration Statement or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly for
use therein or (C) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series CC Senior Notes
- Book-Entry-Only Issuance - The Depository Trust Company."
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have
been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company, whether
or not arising in the ordinary course of business.
(f) The Company is a corporation duly organized and existing under the
laws of the State of Alabama and has due corporate authority to carry
on the public utility business in which it is engaged and to own and
operate the properties used by it in such business, to enter into and
perform its obligations under this Agreement and the Indenture and to
issue and sell the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution
and delivery of the Indenture by the Trustee, the Indenture will, on
the Closing Date constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity) (the "Enforceability Exceptions"); the Indenture will
conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
shall have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation
of the charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(k) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and regulations
thereunder; (B) such as may be required under the Public Utility
Holding Company Act of 1935, as amended; (C) the qualification of the
Indenture under the 1939 Act; (D) the approval of the Alabama Public
Service Commission (the "Alabama Commission"); and (E) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(l) The financial statements incorporated by reference in the
Registration Statement and the Final Supplemented Prospectus, together
with the related schedules and notes, present fairly, in all material
respects, the financial position, results of operations and cash flows
of the Company as of and for the dates indicated; said financial
statements have been prepared in conformity with accounting principles
generally accepted in the United States ("GAAP") applied on a
consistent basis (except that the unaudited financial statements may be
subject to normal year-end adjustments) throughout the periods involved
and necessarily include amounts that are based on the best estimates
and judgments of management. The selected financial data and the
summary financial information included in the Final Supplemented
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited and unaudited
financial statements incorporated by reference in the Registration
Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase
from the Company, the principal amount of the Senior Notes set forth in
Schedule I to this Agreement opposite the name of such Underwriter
(plus any additional amount of the Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of Section
10 hereof), at a price equal to 99.622% of the principal amount
thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Dewey Ballantine LLP, 1301 Avenue
of the Americas, New York, New York 10019 at 10:00 A.M., New York Time,
on November 16, 2004 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be
agreed upon by the Representatives and the Company (such time and date
of payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company by wire transfer in federal funds
at the Closing Date against delivery of the Senior Notes to Banc of
America Securities LLC on behalf of all of the Underwriters. It is
understood that each Underwriter has authorized Banc of America
Securities LLC, for each Underwriter's account, to accept delivery of,
receipt for, and make payment of, the principal amount of the Senior
Notes which each Underwriter has agreed to purchase. Banc of America
Securities LLC, individually and not as a representative of the
Underwriters, may (but shall not be obligated to) make payment of the
principal amount of the Senior Notes to be purchased by any Underwriter
whose payment has not been received by the Closing Date, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
The delivery of the Senior Notes shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York or its designee, and the Underwriters shall
accept such delivery.
The certificate(s) for the Senior Notes will be made available for
examination by the Representatives not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representatives orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Representatives sufficient conformed
copies of the Registration Statement, the Prospectus and the Final
Supplemented Prospectus and of all supplements and amendments thereto
(in each case without exhibits) for distribution to the Underwriters
and, from time to time, as many copies of the Prospectus and the Final
Supplemented Prospectus as the Underwriters may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating
to the offering of the Senior Notes in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Senior
Notes by an Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an
amendment of the Final Supplemented Prospectus, as the case may be, in
order to make the Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if for any other
reason it shall be necessary during such period to amend or supplement
the Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus or the
Prospectus in order to comply with the 1933 Act or the 1934 Act, the
Company forthwith will (i) notify the Underwriters to suspend
solicitation of purchases of the Senior Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Final Supplemented Prospectus is delivered, not misleading or which
will effect any other necessary compliance. In case any Underwriter is
required to deliver a prospectus in connection with the sale of any
Senior Notes after the expiration of the period specified in the
preceding sentence, the Company, upon the request of such Underwriter,
will furnish to such Underwriter, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus,
complying with Section 10(a) of the 1933 Act. During the period
specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof prior to
such filing to the Representatives and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representatives may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the rules and
regulations under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representatives of such filing and to confirm such advice in
writing.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representatives' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement). The
Representatives agree that commercial paper or other debt securities
with scheduled maturities of less than one year are not subject to this
Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement, including
but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
Prospectus, the Final Supplemented Prospectus, and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of any
blue sky survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering contemplated by this
Agreement, if applicable, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Senior Notes, (ix) any fees payable in connection with the
rating of the Senior Notes, (x) the cost and charges of any transfer agent or
registrar, and (xi) the cost of qualifying the Senior Notes with The Depository
Trust Company.
Except as otherwise provided in Section 9 hereof, the Underwriters
shall pay all other expenses incurred by them in connection with their offering
of the Senior Notes including fees and disbursements of their counsel, Dewey
Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Alabama Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Representatives, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Balch & Bingham
LLP, general counsel for the Company, substantially in the form
attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders
LLP, counsel for the Company, substantially in the form attached hereto
as Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore LLP, counsel to the Trustee, substantially in the form attached
hereto as Schedule III.
(4) The opinion, dated the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(d) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Registration Statement and the Final Supplemented Prospectus,
any material adverse change in the business, properties or financial
condition of the Company, whether or not arising in the ordinary course
of business, and the Representatives shall have received a certificate
of the President or any Vice President of the Company, and dated as of
the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to the Closing Date and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or, to the knowledge of the Company, threatened by the
Commission.
(e) On the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP, a letter dated the Closing Date to the effect
that: (A) they are an independent registered public accounting firm
with respect to the Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act; (B) in their opinion, the
financial statements audited by them and incorporated by reference in
the Final Supplemented Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act
and the rules and regulations under the 1934 Act; and (C) on the basis
of certain limited procedures performed through a specified date not
more than three business days prior to the date of such letter, namely
(i) reading the minute books of the Company; (ii) performing the
procedures specified by the standards of the Public Company Accounting
Oversight Board (United States) ("PCAOB") for a review of interim
financial statement information as described in PCAOB Interim Standard
AU 722, "Interim Financial Information", on the unaudited financial
statements, if any, of the Company incorporated by reference in the
Final Supplemented Prospectus and on the latest available unaudited
financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated by reference in the Final
Supplemented Prospectus; and (iii) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being understood that
the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche
LLP make no representations as to the sufficiency of such procedures
for the Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any,
incorporated by reference in the Final Supplemented Prospectus, for
them to be in conformity with GAAP; (2) such unaudited condensed
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Earnings
Before Income Taxes and Net Income After Dividends on Preferred Stock
and the unaudited Ratio of Earnings to Fixed Charges set forth in the
Final Supplemented Prospectus do not agree with the amounts set forth
in or derived from the unaudited financial statements for the same
period included or incorporated by reference in the Registration
Statement; (4) as of a specified date not more than three business days
prior to the date of delivery of such letter, there has been any change
in the capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown in the latest balance
sheet incorporated by reference in the Final Supplemented Prospectus,
except in each case for changes or decreases which (i) the Final
Supplemented Prospectus discloses have occurred or may occur, (ii) are
occasioned by the declaration of dividends, (iii) are occasioned by
draw-downs under existing pollution control financing arrangements,
(iv) are occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (v) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or optional
redemption provisions relating thereto, (vi) are occasioned by the
reclassification of current maturities of long-term debt, or (vii) are
disclosed in such letter; and (5) the unaudited amounts for Operating
Revenues, Earnings Before Income Taxes and Net Income After Dividends
on Preferred Stock and the unaudited Ratio of Earnings to Fixed Charges
for any calendar quarter subsequent to those set forth in (3) above,
which, if available, shall be set forth in such letter, do not agree
with the amounts set forth in or derived from the unaudited financial
statements for the same period or were not determined on a basis
substantially consistent with that of the corresponding audited amounts
or ratios included or incorporated by reference in the Final
Supplemented Prospectus.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require
for the purpose of enabling it to pass upon the issuance and sale of
the Senior Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes as herein contemplated shall
be satisfactory in form and substance to the Representatives and Dewey
Ballantine LLP, counsel for the Underwriters.
(g) No amendment or supplement to the Registration Statement or the
Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to Section
13 or 14 of the 1934 Act) shall be unsatisfactory in form to Dewey
Ballantine LLP or shall contain information (other than with respect to
an amendment or supplement relating solely to the activity of the
Underwriters) which, in the reasonable judgment of the Representatives,
shall materially impair the marketability of the Senior Notes.
(h) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company shall be subject to the conditions set forth in the
first sentence of Section 5(a) and in Section 5(b). In case such conditions
shall not have been fulfilled, this Agreement may be terminated by the Company
by mailing or delivering written notice thereof to the Representatives. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, 1934 Act or
otherwise, and to reimburse such Underwriter and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus or,
if the Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14 of
the 1934 Act which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter through the Representatives for use therein and except that this
indemnity with respect to the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus, if the Company shall have furnished any amendment
or supplement thereto, shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the Senior Notes to any
person if a copy of the Preliminary Prospectus, the Prospectus or the Final
Supplemented Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may then be amended or
supplemented, shall not have been sent or given by or on behalf of such
Underwriter to such person with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue statement or omission or
alleged omission was corrected in the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days after the receipt by it
of notice of the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against an Underwriter or any such person
controlling such Underwriter and such Underwriter shall notify the Company of
the commencement thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including the selection
of counsel, to direct) the defense thereof, at its own expense. In case the
Company elects to direct such defense and select such counsel, any Underwriter
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless the employment of such
counsel has been authorized in writing by the Company in connection with
defending such action. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any liability
or responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter through
the Representatives for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by, or on behalf of the Company and shall survive delivery of the
Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended or
there shall have been a material disruption in settlement in securities
generally, (ii) minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the Commission or by the New York
Stock Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity, crisis or emergency (including,
without limitation, acts of terrorism) affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result that, in the
reasonable judgment of the Representatives, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representatives
pursuant to subsection (a) above or because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters for the reasonable fees and disbursements of Dewey
Ballantine LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER. If an Underwriter shall fail on
the Closing Date to purchase the Senior Notes that it is obligated to purchase
under this Agreement (the "Defaulted Securities"), the Representatives shall
have the right, within 24 hours thereafter, to make arrangements for the
non-defaulting Underwriters, or any other underwriters to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10%
of the Senior Notes, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Final
Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Banc of America
Securities LLC, 9 West 57th Street, 40th Floor, New York, New York 10019,
Attention: Robert D. Craig; Lehman Brothers Inc., 745 Seventh Avenue, New York,
New York 10019, Attention: Debt Capital Markets Power Group; notices to the
Company shall be mailed to 600 North 18th Street, 17th Floor, Birmingham,
Alabama 35291, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Earl C. Long.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By: /s/J. Randy DeRieux
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC OF AMERICA SECURITIES LLC
By: /s/Peter J. Carbone
Title: Vice President
LEHMAN BROTHERS INC.
By: /s/Greg Hall
Title: Managing Director
As Representatives of the Underwriters named in Schedule I hereto
SCHEDULE I
Principal Amount of
Name of Underwriters Series CC Senior Notes
Banc of America Securities LLC 105,000,000
Lehman Brothers Inc. 105,000,000
Lazard Freres & Co. LLC 30,000,000
Morgan Keegan & Company, Inc. 30,000,000
Synovus Securities Inc. 30,000,000
TOTAL: $300,000,000
============
Schedule II-A
[Letterhead of Balch & Bingham LLP]
November __, 2004
Banc of America Securities LLC
214 N. Tyron Street
Charlotte, North Carolina 28255
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series CC 3.50% Senior Notes
due November 15, 2007
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $300,000,000
aggregate principal amount of its Series CC 3.50% Senior Notes due November 15,
2007 (the "Notes") pursuant to a Senior Note Indenture dated as of December 1,
1997, by and between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented
and as further supplemented by the Twenty-Ninth Supplemental Indenture dated as
of November 16, 2004 (collectively, the "Indenture"); and (ii) the purchase by
the Underwriters (as defined herein) of the Notes pursuant to the terms of an
Underwriting Agreement dated November 9, 2004 (the "Underwriting Agreement"),
among the Company and the Underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as representatives (the
"Representatives"). This opinion is being delivered to you as Representatives
pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File Nos. 333-110950, 333-110950-01,
333-110950-02 and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement") filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003 as
supplemented by a final prospectus supplement relating to the Notes dated
November 9, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2003 (the "Form 10-K"), the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 2004, June 30, 2004
and September 30, 2004 and the Current Reports on Form 8-K of the Company dated
February 5, 2004, February 10, 2004, April 7, 2004, April 7, 2004, August 2,
2004, August 19, 2004, August 30, 2004, September 15, 2004, October 5, 2004 and
November 9, 2004 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures (other than those of the Company), the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as
the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Alabama and has
due corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of November 9, 2004, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of the filing of the
Form 10-K (including the Exchange Act Documents on file with the Commission as
of such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contained, as of its date, or
contains, on the date hereof, any untrue statement therein of a material fact or
omitted, as of its date, or omits, as of the date hereof, to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series CC Senior
Notes - Book-Entry-Only Issuance - The Depository Trust Company."
We are members of the State Bar of Alabama and we do not express any
opinion herein concerning any law other than the laws of such State, the federal
law of the United States and, to the extent set forth herein, the law of the
State of New York.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent, except that Troutman Sanders LLP and Dewey Ballantine LLP may rely on
this opinion in giving their opinions pursuant to the Underwriting Agreement
insofar as such opinion relates to matters of Alabama law.
Yours very truly,
BALCH & BINGHAM LLP
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
November __, 2004
Banc of America Securities LLC
214 N. Tyron Street
Charlotte, North Carolina 28255
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series CC 3.50% Senior Notes
due November 15, 2007
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the "Company") in
connection with (i) the Company's issuance of $300,000,000 aggregate principal
amount of its Series CC 3.50% Senior Notes due November 15, 2007 (the "Notes")
pursuant to a Senior Note Indenture dated as of December 1, 1997, by and between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Twenty-Ninth Supplemental Indenture dated as of November 16,
2004 (collectively, the "Indenture"); and (ii) the purchase by the Underwriters
(as defined herein) of the Notes pursuant to the terms of an Underwriting
Agreement dated November 9, 2004 (the "Underwriting Agreement"), among the
Company and the Underwriters named in Schedule I thereto (the "Underwriters")
for whom you are acting as representatives (the "Representatives"). This opinion
is being delivered to you as Representatives pursuant to Section 5(c)(2)
thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File Nos. 333-110950, 333-110950-01,
333-110950-02 and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement") filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003 as
supplemented by a final prospectus supplement relating to the Notes dated
November 9, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2003 (the "Form 10-K"), the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 2004, June 30, 2004
and September 30, 2004 and the Current Reports on Form 8-K of the Company dated
February 5, 2004, February 10, 2004, April 7, 2004, April 7, 2004, August 2,
2004, August 19, 2004, August 30, 2004, September 15, 2004, October 5, 2004 and
November 9, 2004 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of
Alabama law upon the opinion dated the date hereof rendered to you by Balch &
Bingham LLP and relying as to matters of New York law upon the opinion dated the
date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Alabama and has
due corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of November 9, 2004, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of the filing of the
Form 10-K (including the Exchange Act Documents on file with the Commission as
of such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, as of the date hereof, to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series CC Senior
Notes - Book-Entry-Only Issuance - The Depository Trust Company."
We are members of the State Bar of Georgia and we do not express any
opinion herein concerning any law other than the law of the State of Georgia and
the federal law of the United States and, to the extent set forth herein, the
laws of the States of Alabama and New York.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore LLP]
November __, 2004
Banc of America Securities LLC
214 N. Tyron Street
Charlotte, North Carolina 28255
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of the Several Underwriters
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
ALABAMA POWER COMPANY
Series CC 3.50% Senior Notes
due November 15, 2007
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank) (the "Bank") in connection with (a) the Senior Note
Indenture, dated as of December 1, 1997 as heretofore supplemented (the
"Original Indenture"), between Alabama Power Company (the "Company") and the
Bank, as Trustee, and (b) the Twenty-Ninth Supplemental Indenture, dated as of
November 16, 2004 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture and certain resolutions adopted by
the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture and, insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its terms
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of the
Indenture do not conflict with or constitute a breach of the charter or bylaws
of the Bank; and
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture or the performance
by the Bank of its duties thereunder, except such as have been obtained, taken
or made.
We are admitted to practice only in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE LLP
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
November __, 2004
Banc of America Securities LLC
214 N. Tyron Street
Charlotte, North Carolina 28255
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series CC 3.50% Senior Notes
due November 15, 2007
Ladies and Gentlemen:
We have represented the Underwriters (hereinafter defined) in
connection with (i) the issuance and sale by Alabama Power Company (the
"Company") of $300,000,000 aggregate principal amount of its Series CC 3.50%
Senior Notes due November 15, 2007 (the "Notes") pursuant to a Senior Note
Indenture dated as of December 1, 1997, by and between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the
Twenty-Ninth Supplemental Indenture, dated as of November 16, 2004
(collectively, the "Indenture"); and (ii) the purchase by the Underwriters (as
defined herein) of the Notes pursuant to the terms of an Underwriting Agreement
dated November 9, 2004 (the "Underwriting Agreement"), among the Company and the
Underwriters named in Schedule I thereto (the "Underwriters") for whom you are
acting as representatives (the "Representatives"). This opinion is being
delivered to you as Representatives pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File Nos. 333-110950, 333-110950-01,
333-110950-02 and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement"), filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003, as
supplemented by a final prospectus supplement relating to the Notes dated
November 9, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2003 (the "Form 10-K"), the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 2004, June 30, 2004
and September 30, 2004 and the Current Reports on Form 8-K of the Company dated
February 5, 2004, February 10, 2004, April 7, 2004, April 7, 2004, August 2,
2004, August 19, 2004, August 30, 2004, September 15, 2004, October 5, 2004 and
November 9, 2004 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as
the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as aforesaid and as to
all matters covered hereby which are governed by or dependent upon the law of
the State of Alabama upon the opinion of Balch & Bingham LLP dated the date
hereof and addressed to you, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Alabama and has
due corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Alabama Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of November 9, 2004, complied as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of the date
of the filing of the Form 10-K (including the Exchange Act Documents on file
with the Commission as of such date), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Final Supplemented Prospectus (including the Exchange Act Documents)
contained, as of its date, or contains, on the date hereof, any untrue statement
of a material fact or omitted, as of its date, or omits, on the date hereof, to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series CC
Senior Notes - Book-Entry-Only Issuance - The Depository Trust Company."
We are members of the State Bar of New York and we do not express any
opinion herein concerning any law other than the law of the State of New York
and the federal law of the United States and, to the extent set forth herein,
the law of the State of Alabama.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent except that Balch & Bingham LLP and Troutman Sanders LLP may rely on
this opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and Balch
& Bingham LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP