Exhibit 4.2(a)
ALABAMA POWER COMPANY
TO
JPMORGAN CHASE BANK, N.A.
TRUSTEE
THIRTY-THIRD SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 8, 2006
SERIES GG 5?% SENIOR NOTES
DUE FEBRUARY 1, 2046
TABLE OF CONTENTS(1)
Page
ARTICLE 1 Series GG Senior Notes..................................................................................1
SECTION 101. Establishment..........................................................................1
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SECTION 102. Definitions............................................................................2
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SECTION 103. Payment of Principal and Interest......................................................3
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SECTION 104. Denominations..........................................................................4
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SECTION 105. Global Securities......................................................................4
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SECTION 106. Transfer...............................................................................4
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SECTION 107. Redemption at the Company's Option.....................................................5
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SECTION 108. Mandatory Redemption...................................................................5
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ARTICLE 2 Special Insurance Provisions............................................................................5
SECTION 201. Supplemental Indentures................................................................5
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SECTION 202. Events of Default and Remedies.........................................................6
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SECTION 203. Insurance Policy Payment Procedures....................................................6
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SECTION 204. Application of Term "Outstanding" to Series GG Notes...................................7
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SECTION 205. Insurer as Third Party Beneficiary.....................................................7
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SECTION 206. Concerning the Special Insurance Provisions............................................8
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SECTION 207. Concerning the Policy..................................................................8
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ARTICLE 3 Miscellaneous Provisions................................................................................8
SECTION 301. Recitals by Company....................................................................8
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SECTION 302. Ratification and Incorporation of Original Indenture...................................8
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SECTION 303. Executed in Counterparts...............................................................8
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EXHIBIT A FORM OF SERIES GG NOTE
EXHIBIT B CERTIFICATE OF AUTHENTICATION
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 THIRTY-THIRD SUPPLEMENTAL INDENTURE is made as of the 8th day of
February, 2006, by and between ALABAMA POWER COMPANY, an Alabama corporation,
600 North 18th Street, Birmingham, Alabama 35291 (the "Company"), and JPMORGAN
CHASE BANK, N.A., a national banking association, 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
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as
heretofore supplemented;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as further
supplemented by this Thirty-Third 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 Thirty-Third Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Series GG 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 GG 5?% Senior Notes due February 1, 2046 (the "Series GG
Notes").
There are to be authenticated and delivered $100,000,000 aggregate
principal amount of Series GG Notes, and such principal amount of the Series GG
Notes may be increased from time to time pursuant to Section 301 of the Original
Indenture. All Series GG 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 GG Notes. Any such additional Series GG Notes
will have the same interest rate, maturity and other terms, including the
benefit of the Policy (appropriately increased to cover the principal amount of
and interest due on the additional Series GG Notes, subject to Section 207
hereof), as those initially issued. No Series GG 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 GG Notes shall be issued in definitive fully registered form.
The Series GG 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 GG Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
GG Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series GG 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 GG 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.
"Insurance Agreement" means that certain Insurance Agreement, dated as
of February 8, 2006, by and between the Company and the Insurer.
"Insurance Trustee" means The Bank of New York, New York, New York, or
any successor thereto, as the Insurance Trustee under the Policy.
"Insurer" means Ambac Assurance Corporation, a Wisconsin-domiciled
stock insurance company.
"Interest Payment Dates" means February 1, May 1, August 1 and November
1 of each year, commencing May 1, 2006.
"Mandatory Redemption Event" means the Company's failure to comply with
(i) Section 1.02 of the Insurance Agreement, the continuance of such failure for
a period in excess of 10 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; or (ii) 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.
"Original Issue Date" means February 8, 2006.
"Policy" means the financial guaranty insurance policy issued by the
Insurer with respect to payments due for principal of and interest on the Series
GG Notes (including any additional Series GG Notes referred to in the second
paragraph of Section 101 hereof, subject to Section 207 hereof) as provided in
such policy.
"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 February 1, 2046.
SECTION 103. Payment of Principal and Interest. The principal of the Series GG
Notes shall be due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Series GG Notes shall bear interest at the rate of 5?%
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 GG
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 GG
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 GG 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 GG 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 GG Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series GG 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 GG 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 GG Notes shall be made upon surrender of the
Series GG Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series GG 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.
SECTION 104. Denominations. The Series GG Notes may be issued in
denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series GG 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 GG Notes represented by the Global
Security will not be exchangeable for, and will not otherwise be issuable as,
Series GG 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 GG 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.
Subject to the procedures of the Depositary, a Global Security shall be
exchangeable for Series GG 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, (ii)
the Company in its sole discretion determines that such Global Security shall be
so exchangeable, or (iii) there shall have occurred an Event of Default with
respect to the Series GG Notes. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Series GG 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 GG 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 GG Notes, except to the Insurer, 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 GG 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 GG Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series GG Notes redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series GG Notes will be
subject to redemption at the option of the Company in whole or in part, without
premium, from time to time, on or after February 1, 2011, upon not less than 30
nor more than 60 days' notice, at a Redemption Price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest thereon to
the Redemption Date.
In the event of redemption of the Series GG Notes in part only, a new
Series GG Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
Any redemption of less than all of the Series GG Notes shall, with
respect to the principal thereof, be divisible by $25.
Notice of redemption pursuant to this Section 107 shall be given to
Holders of Series GG Notes as provided in Section 1104 of the Original
Indenture.
SECTION 108. Mandatory Redemption. Upon the occurrence of a Mandatory Redemption
Event, the Company shall redeem the Series GG Notes, in whole but not in part,
prior to the Stated Maturity upon not less than 30 nor more than 60 days' notice
at a Redemption Price equal to (i) 102% of the principal amount to be redeemed
plus accrued and unpaid interest to the Redemption Date if the Redemption Date
is prior to February 1, 2011 or (ii) 100% of the principal amount to be redeemed
plus accrued and unpaid interest to the Redemption Date if the Redemption Date
is on or after February 1, 2011. 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 GG
Notes on a date fixed by the Company within 60 days after the occurrence of the
Mandatory Redemption Event. 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 pursuant to this Section 108 shall be given to
Holders of Series GG Notes 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 GG Notes
pursuant to Section 902 of the Original Indenture. Any provision of this
Thirty-Third Supplemental Indenture or the Original Indenture expressly
recognizing or granting rights to the Insurer may not be amended in any manner
which affects the rights of the Insurer without the prior written consent of the
Insurer.
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 occurs
with respect to the Series GG Notes 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 GG Notes or the Trustee for the benefit of
the Holders of the Series GG Notes under the Indenture, including, without
limitation, (i) the right to accelerate the principal of the Series GG 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 GG 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).
SECTION 203. Insurance Policy Payment Procedures. (a) On each Interest Payment
Date and on the Business Day immediately preceding the Stated Maturity, the
Trustee will determine whether there are sufficient funds to pay the principal
of or interest on the Series GG Notes on such Interest Payment Date or at the
Stated Maturity, as the case may be. If the Trustee determines that there are
insufficient funds available, the Trustee shall so notify the Insurer. Such
notice shall specify the amount of the deficiency and whether the Series GG
Notes are deficient as to principal or interest, or both. The Insurer will make
payments of principal or interest due on the Series GG Notes in accordance with
the Policy on or before the first (1st) Business Day next following the date on
which the Insurer shall have received notice of Nonpayment (as defined in the
Policy) from the Trustee.
(b) In the event of Nonpayment and notification thereof to the Insurer,
the Trustee shall make available to the Insurer and, at the Insurer's direction,
to the Insurance Trustee, the books kept by the Trustee for the registration and
for the registration of transfer of Series GG Notes as provided in the
Indenture.
(c) The Trustee shall, at the time it provides notice to the Insurer
pursuant to (a) above, notify Holders of Series GG Notes entitled to receive the
payment of principal or interest thereon from the Insurer (i) as to the fact of
such entitlement, (ii) that the Insurer will remit to them all or a part of the
interest payments next coming due upon proof of Holder entitlement to interest
payments and delivery to the Insurance Trustee, in form satisfactory to the
Insurance Trustee, of an appropriate assignment of the Holder's right to
payment, (iii) that should they be entitled to receive full payment of principal
from the Insurer, they must surrender their Series GG Notes (along with an
appropriate instrument of assignment in form satisfactory to the Insurance
Trustee to permit ownership of such Series GG Notes to be registered in the name
of the Insurer) for payment to the Insurance Trustee, and not the Trustee or any
Paying Agent and (iv) that should they be entitled to receive partial payment of
principal from the Insurer, they must surrender their Series GG Notes for
payment thereon first to the Trustee, who shall note on such Series GG Notes the
portion of the principal paid by the Trustee, and then, along with an
appropriate instrument of assignment in form satisfactory to the Insurance
Trustee, to the Insurance Trustee, which will then pay the unpaid portion of
principal.
(d) In the event that the Trustee has notice that any payment of
principal of or interest on a Series GG Note which has become Due for Payment
(as defined in the Policy) and which is made to a Holder by or on behalf of the
Company has been deemed a preferential transfer and theretofore recovered from
its 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, the Trustee shall, at the time the Insurer is notified
pursuant to (a) above, notify all Holders of the Series GG Notes 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 if sufficient funds are
not otherwise available, and the Trustee shall furnish to the Insurer its
records evidencing the payments of principal of and interest on the Series GG
Notes which have been made by the Trustee and subsequently recovered from
Holders and the dates on which such payments were made.
(e) In addition to those rights granted the Insurer under the
Indenture, the Insurer shall, to the extent it makes payment of principal of or
interest on Series GG 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
registration books of the Company maintained by the Trustee upon receipt from
the Insurer of proof of the payment of interest thereon to the Holders of the
Series GG 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
registration books of the Company maintained by the Trustee upon surrender of
the Series GG Notes by the Holders thereof together with proof of the payment of
principal thereof.
SECTION 204. Application of Term "Outstanding" to Series GG Notes. In the event
that the principal and/or interest due on the Series GG Notes shall be paid by
the Insurer pursuant to the Policy, the Series GG Notes shall remain Outstanding
for all purposes of the Indenture, not be considered defeased or otherwise
satisfied and not be considered paid by the Company, and the assignment and
pledge of the Indenture and all covenants, agreements and other obligations of
the Company to the Holders of the Series GG Notes shall continue to exist and
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. Insurer as Third Party Beneficiary. To the extent that the
Indenture confers upon or gives or grants to the Insurer any right, remedy or
claim under or by reason of the Indenture, the Insurer is hereby explicitly
recognized as being a third-party beneficiary hereunder and may enforce any such
right, remedy or claim conferred, given or granted hereunder.
SECTION 206. 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.
SECTION 207. Concerning the Policy. Should the Company issue additional Series
GG Notes, as contemplated in Section 101 hereof, such additional Series GG Notes
will have the benefit of the Policy upon the endorsement of the Policy by the
Insurer pursuant to a mutually acceptable agreement of the Company and the
Insurer at or prior to the time of such issuance. The Insurer is under no
obligation to endorse the Policy to extend its benefits to any additional Series
GG Notes if it does not reach such an agreement with the Company.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Thirty-Third 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 GG Notes and of this Thirty-Third 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 as heretofore
supplemented and as supplemented by this Thirty-Third Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Thirty-Third 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.
[Signature page to follow.]
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/ Ceila H. Shorts By: /s/ Art P. Beattie
Ceila H. Shorts Art P. Beattie
Assistant Secretary Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: JPMORGAN CHASE BANK, N.A.,
as Trustee
By:Rose Ciaccia By:/s/Carol Ng
Trust Officer Carol Ng
Vice President
EXHIBIT A
FORM OF SERIES GG NOTE
NO. __ CUSIP NO. 010392 54 6
ALABAMA POWER COMPANY
SERIES GG 5?% SENIOR NOTE
DUE FEBRUARY 1, 2046
Principal Amount: $__________________
Regular Record Date: 15th calendar day prior to
Interest Payment Date
(whether or not a
Business Day)
Original Issue Date: February 8, 2006
Stated Maturity: February 1, 2046
Interest Payment Dates: February 1, May 1, August 1 and November 1
Interest Rate: 5?%
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, quarterly in arrears on each Interest Payment Date as
specified above, commencing on May 1, 2006, 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 GG Notes shall be made upon surrender of the
Series GG Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series GG 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.
Financial Guaranty Insurance Policy No. 25024BE (the "Policy") with
respect to payments due for principal of and interest on this Note has been
issued by Ambac Assurance Corporation ("Ambac Assurance"). The Policy has been
delivered to The Bank of New York, New York, New York, as the Insurance Trustee
under said Policy and will be held by such Insurance Trustee or any successor
insurance trustee. The Policy is on file and available for inspection at the
principal office of the Insurance Trustee and a copy thereof may be secured from
Ambac Assurance or the Insurance Trustee. All payments required to be made under
the Policy shall be made in accordance with the provisions thereof. The owner of
this Note acknowledges and consents to the subrogation rights of Ambac Assurance
as more fully set forth in the Policy.
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, N.A.
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, N.A. (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 GG 5?% Senior Notes
due February 1, 2046 (the "Series GG 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 GG Notes (i) shall, from time to time, on or after February
1, 2011 upon not less than 30 nor more than 60 days' notice to the Holders
thereof, be subject to redemption at the option of the Company, without premium,
in whole or in part, at a Redemption Price equal to 100% of the principal amount
of the Series GG Notes to be redeemed plus accrued and unpaid interest on the
Series GG Notes to the Redemption Date and (ii) upon the occurrence of a
"Mandatory Redemption Event" (as defined below), shall be subject to mandatory
redemption, upon not less than 30 nor more than 60 days' notice, in whole but
not in part, at a Redemption Price equal to (i) 102% of the principal amount of
the Series GG Notes plus accrued and unpaid interest to the Redemption Date if
the Redemption Date is prior to February 1, 2011 or (ii) 100% of the principal
amount of the Series GG Notes plus accrued and unpaid interest to the Redemption
Date if the Redemption Date is on or after February 1, 2011. "Mandatory
Redemption Event" means the Company's failure to comply with (x) Section 1.02 of
the Insurance Agreement, dated as of February 8, 2006 (the "Insurance
Agreement"), by and between the Company and Ambac Assurance Corporation (the
"Insurer"), the continuance of such failure for a period in excess of 10 days
after receipt by the Company of written notice thereof from the Insurer and the
receipt by the Trustee of notice thereof, or (y) 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. Subject to the notice
requirements of the Indenture, the Company shall redeem the Series GG Notes
within 60 days after the occurrence of the Mandatory Redemption Event.
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 GG 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.
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)
EN 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.
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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, N.A.
as Trustee
By:
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Authorized Officer