Exhibit 1
$150,000,000
Series JJ 6.375% Senior Notes
due June 15, 2046
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
June 7, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
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 11
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 $150,000,000 aggregate principal amount of the Series JJ 6.375%
Senior Notes due June 15, 2046 (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, N.A. (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), and as further supplemented by a thirty-sixth supplemental
indenture, dated as of June 14, 2006, 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. 333-126348,
333-126348-01, 333-126348-02 and 333-126348-03) 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 or pursuant to Section 8A of the
1933 Act against the Company or related to the offering 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 used with respect to the Senior Notes,
including the information deemed a part thereof pursuant to Rule
430B(f)(1) under the 1933 Act on the date of such registration
statement's effectiveness for purposes of Section 11 of the 1933
Act, as such Section applies to the Company and the Underwriters
for the Senior Notes pursuant to Rule 430B(f)(2) under the 1933
Act (the "Effective Date"), including the exhibits thereto and
all documents incorporated by reference therein pursuant to Item
12 of Form S-3 at the Effective Date, being hereinafter called
the "Registration Statement;" the base prospectus relating to the
Senior Notes and certain other securities of the Company, in the
form in which it has most recently been filed with the Commission
on or prior to the date of this Agreement relating to the Senior
Notes, being hereinafter called the "Basic Prospectus;" the Basic
Prospectus as amended and supplemented by a preliminary
prospectus supplement dated June 6, 2006 relating to the Senior
Notes and as further amended and supplemented immediately prior
to the Applicable Time (as defined below) and has been filed with
the Commission pursuant to Rule 424(b) under the 1933 Act (such
document is hereinafter called the "Pricing Prospectus"); the
Basic Prospectus as amended or supplemented in final form,
including 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 4(e)
hereof is hereinafter called the "Final Supplemented Prospectus;"
any reference herein to any Preliminary Prospectus, the Basic
Prospectus, the Pricing Prospectus or the Final Supplemented
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, Basic Prospectus, Pricing Prospectus or Final
Supplemented Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus, the Basic
Prospectus, the Pricing Prospectus or the Final Supplemented
Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus, Basic
Prospectus, Pricing Prospectus or Final Supplemented 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, Basic Prospectus, Pricing Prospectus or
Final Supplemented 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.
For purposes of this Agreement, the "Applicable
Time" is 4:05 p.m. (New York Time) on the date of this
Agreement; the documents listed in Schedule III, taken
together and attached hereto, are collectively referred to as
the "Pricing Disclosure Package."
(b) The documents incorporated by reference in the Registration
Statement or the Pricing 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 Pricing Prospectus and any
Permitted Free Writing Prospectus (as defined in Section 3(a)
hereof), 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 Final Supplemented 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 Final Supplemented 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
Pricing Prospectus, any Permitted Free Writing Prospectus and the
Final Supplemented Prospectus; or (B) any information set forth
in the Pricing Prospectus or the Final Supplemented Prospectus
under the caption "Description of the Series JJ Senior Notes -
Book-Entry-Only Issuance - The Depository Trust Company," "The
Policy and the Insurer" and "Experts" (as it relates to
information with respect to the Insurer) or in Appendix A
thereto.
(c) The Registration Statement and the Final Supplemented Prospectus
comply, and any further amendments or supplements thereto, when
any such amendments become 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 the
Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus do not and will not, (i) as of the
Effective Date as to the Registration Statement and any amendment
thereto, (ii) as of the Applicable Time as to the Pricing
Disclosure Package and (iii) as of the date of the Final
Supplemented Prospectus as to the Final Supplemented Prospectus
or as of the date when any supplement is filed as to the Final
Supplemented Prospectus as further 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 Pricing
Disclosure Package and the Final Supplemented Prospectus as
further 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 a
Permitted Free Writing Prospectus, the Registration Statement,
the Pricing Prospectus 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 Pricing Prospectus or the Final Supplemented
Prospectus under the caption "Description of the Series JJ Senior
Notes - Book-Entry-Only Issuance - The Depository Trust Company,"
"The Policy and the Insurer" and "Experts" (as it relates to
information with respect to the Insurer) or in Appendix A
thereto.
(d) Each Permitted Free Writing Prospectus listed on Schedule III
hereto does not include anything that conflicts with the
information contained in the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus and each such
Permitted Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable
Time, did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no
warranty or representation to the Underwriters with respect to
any statement or omissions made in a Permitted Free Writing
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.
(e) 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.
(f) At the determination date for purposes of the Senior Notes within
the meaning of Rule 164(h) under the 1933 Act, the Company was
not an "ineligible issuer" as defined in Rule 405 under the 1933
Act.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Pricing 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.
(h) 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.
(i) This Agreement has been duly authorized, executed and delivered
by the Company.
(j) 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 Pricing Disclosure Package and the Final
Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(k) 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 this
Agreement, 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 Pricing Disclosure Package and
the Final Supplemented Prospectus.
(l) 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.
(m) The Company has duly authorized all necessary action to be taken
by it for the procurement of an irrevocable financial guaranty
insurance policy (the "Insurance Policy") issued by Financial
Guaranty Insurance Company (the "Insurer"), insuring the payment
of principal and interest on the Senior Notes, when due.
(n) 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 Federal Power Act; (C) the qualification of the
Indenture under the 1939 Act; (D) the approval of the Alabama
Public Service Commission (the "Alabama Commission"); and (E)
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or "blue
sky" laws.
(o) The financial statements incorporated by reference in the
Registration Statement, the Pricing Prospectus 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 Pricing Prospectus and 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.
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(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 11 hereof), at a
price equal to 96.85% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Balch & Bingham LLP, 1901 Sixth
Avenue North, Birmingham, Alabama at 10:00 A.M., New York Time,
on June 14, 2006 (unless postponed in accordance with the
provisions of Section 11) 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 Morgan Stanley & Co. Incorporated on behalf
of all of the Underwriters. It is understood that each
Underwriter has authorized Morgan Stanley & Co. Incorporated, 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. Morgan Stanley &
Co. Incorporated, 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. FREE WRITING PROSPECTUSES.
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(a) The Company represents and agrees that, without the prior consent
of the Representatives, it has not made and will not make any
offer relating to the Senior Notes that would constitute a "free
writing prospectus" as defined in Rule 405 under the 1933 Act,
other than a Permitted Free Writing Prospectus; each Underwriter,
severally and not jointly, represents and agrees that, without
the prior consent of the Company and the Representatives, it has
not made and will not make any offer relating to the Senior Notes
that would constitute a "free writing prospectus" as defined in
Rule 405 under the Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to
be filed by the Company pursuant to Rule 433; any such free
writing prospectus (which shall include the pricing term sheet
discussed in Section 3(b) hereof), the use of which has been
consented to by the Company and the Representatives, is listed on
Schedule III and herein called a "Permitted Free Writing
Prospectus."
(b) The Company agrees to prepare a pricing term sheet, substantially
in the form of Schedule II hereto and approved by the
Representatives, and to file such pricing term sheet pursuant to
Rule 433(d) under the 1933 Act within the time period prescribed
by such Rule.
(c) The Company and the Representatives have complied and will comply
with the requirements of Rule 433 under the 1933 Act applicable
to any free writing prospectus, including timely Commission
filing where required and legending.
(d) The Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event occurred or occurs as
a result of which such Permitted Free Writing Prospectus would
conflict with the information in the Registration Statement, the
Pricing Prospectus or the Final Supplemented Prospectus or
include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will
prepare and furnish without charge to each Underwriter a free
writing prospectus or other document, the use of which has been
consented to by the Representatives, which will correct such
conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or
omissions in a Permitted Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives,
expressly for use therein.
(e) The Company agrees that if there occurs an event or development
as a result of which the Pricing Disclosure Package would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein,
in light of the circumstances then prevailing, not misleading,
the Company will notify the Representatives so that any use of
the Pricing Disclosure Package may cease until it is amended or
supplemented.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants with the
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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
for that purpose or pursuant to Section 8A of the 1933 Act
against the Company or related to the offering, 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 Basic Prospectus, the Pricing
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 Basic Prospectus, the Pricing
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 written or
electronic 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 (or in lieu
thereof, the notice referred to in Rule 173(a) under the 1933
Act) 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 (or in lieu thereof, the notice referred to
in Rule 173(a) under the 1933 Act) 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 Final
Supplemented 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 (or in lieu thereof, the
notice referred to in Rule 173(a) under the 1933 Act) 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, in a form
approved by the Representatives, such approval not to be
unreasonably withheld, with the Commission and to advise the
Representatives of such filing and to confirm such advice in
writing. Furthermore, the Company will make any other required
filings pursuant to Rule 433(d)(1) of the 1933 Act within the
time required by such Rule.
(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 4(f).
(g) The Company will use its best efforts to effect the listing of
the Senior Notes on the New York Stock Exchange.
SECTION 5. 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 Pricing Prospectus, any Permitted Free
Writing 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, (xi) the premium payable to the Insurer in
connection with the issuance of the Insurance Policy, (xii) the fees and
expenses incurred in connection with the listing of the Senior Notes on the New
York Stock Exchange and (xiii) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 10 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 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
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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 or pursuant to Section 8A of the
1933 Act against the Company or related to the offering shall be
pending before, or to the knowledge of the Company threatened by,
the Commission on such date. If filing of the Pricing Prospectus
or the Final Supplemented Prospectus, or any supplement thereto,
is required pursuant to Rule 424, the Pricing Prospectus and the
Final Supplemented Prospectus, and any such supplement, as
applicable, shall have been filed in the manner and within the
time period required by Rule 424. The pricing term sheet
contemplated by 3(b) hereto, and any other material required to
be filed by the Company pursuant to Rule 433(d) under the 1933
Act, shall have been filed by the Company with the Commission
within the applicable time periods prescribed for such filings by
Rule 433.
(b) Any required orders of the Alabama 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 IV-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders
LLP, counsel for the Company, substantially in the form attached
hereto as Schedule IV-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore LLP, counsel to the Trustee, substantially in the form attached
hereto asSchedule V.
(4) The opinion, dated the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriters, substantially in the form attached
hereto as Schedule VI.
(5) The opinion, dated the Closing Date, of counsel to the
Insurer, substantially in the form attached hereto as Schedule VII.
(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 or pursuant to Section 8A of the
1933 Act against the Company or related to the offering have been
initiated or, to the knowledge of the Company, threatened by the
Commission.
(e) The Representatives shall have received on the date hereof and
shall receive on the Closing Date from Deloitte & Touche LLP, a
letter or letters addressed to the Representatives (which may
refer to letters previously delivered to the Representatives)
dated the respective dates of delivery thereof 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 Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable,
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 Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable,
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 Registration Statement
and the Pricing Prospectus or the Registration Statement, the
Pricing Prospectus and the Final Supplemented Prospectus, as
applicable; 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 Registration Statement
and the Pricing Prospectus or the Registration Statement, the
Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, 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
Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, 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 Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable,
except in each case for changes or decreases which (i) the
Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, 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 Registration
Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable.
(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) On the Closing Date, the Senior Notes shall be approved for
listing on the New York Stock Exchange upon notice of issuance.
(h) 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.
(i) On the Closing Date, the Representatives shall have received
evidence that the Insurance Policy has been issued by the Insurer
and confirmation that the Senior Notes have been rated at least
Aaa by Moody's Investors Service, Inc. and at least AAA by
Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
(j) 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 5, 8 and 10(b) hereof.
SECTION 7. 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 6(a) and in Section 6(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 5, 8 and 10(b) hereof.
SECTION 8. 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 Basic Prospectus, any Permitted Free Writing Prospectus, the
Pricing 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 Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus, the Final Supplemented Prospectus as so
amended or supplemented, or in any free writing prospectus used by the Company
other than a Permitted Free Writing Prospectus, 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, Basic Prospectus, Pricing Prospectus, Permitted Free
Writing 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. 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 8, 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 8. 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 8(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing 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 9. 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 10. 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 offering, sale or delivery of the Senior Notes on the terms
and in the manner contemplated by this Agreement and the Final Supplemented
Prospectus 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 5 and 8.
SECTION 11. 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, the
Pricing Prospectus or Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION 12. 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 Morgan Stanley & Co.
Incorporated, 1585 Broadway, 29th Floor, New York, New York 10036, Attention:
Investment Banking Department and Wachovia Capital Markets, LLC, One Wachovia
Center, 301 South College Street, Charlotte, North Carolina 28288-0602,
Attention: Jim Williams; 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., 30 Ivan Allen Jr.
Boulevard, N.W., Atlanta, Georgia 30308, Attention: Earl C. Long.
SECTION 13. 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 8 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. The Company
acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement, the Company and the Underwriters have an
arms-length business relationship that creates no fiduciary duty on the part of
any party and each expressly disclaims any fiduciary or financial advisory
relationship.
SECTION 14. 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 15. 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
---------------------------------
Name: J. Randy DeRieux
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
Name: Michael Fusco
Title: Executive Director
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ James T. Williams, Jr.
-----------------------------------------
Name: James T. Williams, Jr.
Title: Managing Director
As Representatives of the Underwriters named in Schedule I hereto
20
SCHEDULE I
Principal Amount of
Name of Underwriters Series JJ Senior Notes
Morgan Stanley & Co. Incorporated $30,000,000
Wachovia Capital Markets, LLC 30,000,000
Banc of America Securities LLC 30,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 30,000,000
ABN AMRO Incorporated 3,000,000
BNY Capital Markets, Inc. 3,000,000
Morgan Keegan & Company, Inc. 3,000,000
Raymond James & Associates, Inc. 3,000,000
SunTrust Capital Markets, Inc. 3,000,000
Jeffries & Company, Inc. 2,250,000
Muriel Siebert & Co., Inc. 2,250,000
Blaylock & Company, Inc. 1,500,000
Guzman & Company 1,500,000
M.R. Beal & Company 1,500,000
Protective Securities, a division of ProEquities, Inc. 1,500,000
Samuel A. Ramirez & Co., Inc. 1,500,000
The Williams Capital Group, L.P. 1,500,000
Toussaint Capital Partners, LLC 1,500,000
-----------------
TOTAL: $150,000,000
SCHEDULE II
PRICING TERM SHEET
(To Preliminary Prospectus Supplement dated June 6, 2006)
Issuer: Alabama Power Company
Security: Series JJ Senior Notes
Ratings: Aaa by Moody's, AAA by Standard & Poor's
Insurer: Financial Guaranty Insurance Company
Size: $150,000,000
Price: $25.00
Maturity: June 15, 2046
Redemption Terms: Callable in whole or in part any time on or
after June 14, 2011 at par
Coupon: 6.375%
Interest Payment Dates: March 15, June 15, September 15 and
December 15 of each year beginning
September 15, 2006
Format: SEC Registered
Expected Listing: NYSE
Proceeds to Issuer: 96.85% of principal amount
Transaction Date: June 7, 2006
Expected Settlement Date: June 14, 2006 (T+5)
Joint Lead Managers: Morgan Stanley & Co. Incorporated
Wachovia Capital Markets, LLC
Co-Managers: Banc of America Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Underwriters: ABN AMRO Incorporated
BNY Capital Markets, Inc.
Morgan Keegan & Company, Inc.
Raymond James & Associates, Inc.
SunTrust Capital Markets, Inc.
Jeffries & Company, Inc.
Muriel Siebert & Co., Inc.
Blaylock & Company, Inc.
Guzman & Company
M.R. Beal & Company
Protective Securities, a division of
ProEquities, Inc.
Samuel A. Ramirez & Co., Inc.
The Williams Capital Group, L.P.
Toussaint Capital Partners, LLC
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to send you the prospectus if
you request it by calling Alabama Power Company collect at 205-257-2714,
Morgan Stanley & Co. Incorporated toll-free at 1-866-718-1649 (institutional
investors) or 1-800-584-6837 (retail investors) or Wachovia Capital Markets,
LLC toll-free at 1-800-326-5897.
SCHEDULE III
PRICING DISCLOSURE PACKAGE
1) Prospectus dated July 19, 2005
2) Preliminary Prospectus Supplement dated June 6, 2006 (which shall be
deemed to include documents incorporated by reference therein)
3) Permitted Free Writing Prospectuses
a) Pricing Term Sheet attached as Schedule II hereto
Schedule IV-A
[Letterhead of Balch & Bingham LLP]
June ___, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series JJ 6.375% Senior Notes
due June 15, 2046
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $150,000,000
aggregate principal amount of its Series JJ 6.375% Senior Notes due June 15,
2046 (the "Notes") pursuant to a Senior Note Indenture dated as of December 1,
1997, by and between the Company and JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Thirty-Sixth Supplemental
Indenture dated as of June 14, 2006 (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 June 7, 2006 (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 6(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. 333-126348, 333-126348-01,
333-126348-02 and 333-126348-03) pertaining to the Notes and certain other
securities filed by the Company under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act (the "Registration
Statement"); the Company's prospectus dated July 19, 2005 (the "Basic
Prospectus") as supplemented by a preliminary prospectus supplement dated June
6, 2006 (the "Pricing Prospectus"), filed by the Company pursuant to Rule 424(b)
of the rules and regulations of the Securities and Exchange Commission (the
"Commission") under the Act, 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, 2005, the Quarterly Report on Form 10-Q for the quarter ended
March 31, 2006 and the Current Reports on Form 8-K of the Company dated January
10, 2006, January 11, 2006, January 13, 2006, January 31, 2006, February 1,
2006, February 20, 2006, March 8, 2006, March 9, 2006 and June 6, 2006 (the
"Pricing Exchange Act Documents"), and a prospectus supplement dated June 7,
2006 (together with the Basic Prospectus, the "Final Supplemented Prospectus"),
filed by the Company pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, which, pursuant to Form S-3, incorporates by reference
the Pricing Exchange Act Documents and the Current Reports on Form 8-K of the
Company dated June 7, 2006 and June 7, 2006 (the "Exchange Act Documents"), each
as filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"); and the Indenture. We have also examined the free writing prospectus
prepared by the Company and filed with the Commission on June 7, 2006 pursuant
to Rule 433 of the Act (the "Permitted Free Writing Prospectus"). The documents
listed in Schedule III to the Underwriting Agreement, taken together, are
collectively referred to as the "Pricing Disclosure Package."
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 Pricing Disclosure Package
and 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 Pricing
Disclosure Package and 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 Pricing Disclosure Package, 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 Pricing Disclosure Package,
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 Pricing Disclosure Package, the Final Supplemented Prospectus and
the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Pricing Disclosure Package, 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, on the date of the Underwriting Agreement and
the Final Supplemented Prospectus, as of June 7, 2006, 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 Pricing Disclosure Package, 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, on the date of the Underwriting Agreement (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, that the Pricing Disclosure Package, as of the Applicable Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, 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, 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 Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Pricing Prospectus and the Final Supplemented
Prospectus under the captions "Description of the Series JJ Senior Notes -
Book-Entry-Only Issuance - The Depository Trust Company" or "The Policy and the
Insurer" or under the caption "Experts" (as it relates to information with
respect to the Insurer) appearing on page S-13 thereof or in Appendix A thereto.
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 IV-B
[Letterhead of TROUTMAN SANDERS LLP]
June ___, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series JJ 6.375% Senior Notes
due June 15, 2046
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the
"Company") in connection with (i) the Company's issuance of $150,000,000
aggregate principal amount of its Series JJ 6.375% Senior Notes due June 15,
2046 (the "Notes") pursuant to a Senior Note Indenture dated as of December 1,
1997, by and between the Company and JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Thirty-Sixth Supplemental
Indenture dated as of June 14, 2006 (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 June 7, 2006, (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 6(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. 333-126348, 333-126348-01,
333-126348-02 and 333-126348-03) pertaining to the Notes and certain other
securities filed by the Company under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act (the "Registration
Statement"); the Company's prospectus dated July 19, 2005 (the "Basic
Prospectus"), as supplemented by a preliminary prospectus supplement dated June
6, 2006 (the "Pricing Prospectus"), filed by the Company pursuant to Rule 424(b)
of the rules and regulations of the Securities and Exchange Commission (the
"Commission") under the Act, 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, 2005, the Quarterly Report on Form 10-Q of the Company for
the quarter ended March 31, 2006 and the Current Reports on Form 8-K of the
Company dated January 10, 2006, January 11, 2006, January 13, 2006, January 31,
2006, February 1, 2006, February 20, 2006, March 8, 2006, March 9, 2006 and June
6, 2006 (the "Pricing Exchange Act Documents"), and as supplemented by a
prospectus supplement dated June 7, 2006 (together with the Basic Prospectus,
the "Final Supplemented Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, which,
pursuant to Form S-3, incorporates by reference the Pricing Exchange Act
Documents and the Current Reports on Form 8-K of the Company dated June 7, 2006
and June 7, 2006 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. We have also examined the free writing prospectus prepared by the
Company and filed with the Commission on June 7, 2006 pursuant to Rule 433 of
the Act (the "Permitted Free Writing Prospectus"). The documents listed in
Schedule III to the Underwriting Agreement, taken together, are collectively
referred to as the "Pricing Disclosure Package."
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 Pricing Disclosure Package
and 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 Pricing
Disclosure Package and 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,
Pricing Disclosure Package, 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 Pricing Disclosure Package, 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
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation of the
Registration Statement, the Pricing Disclosure Package, 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, on the date of the Underwriting Agreement and the Final Supplemented
Prospectus, as of June 7, 2006, 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 Pricing Disclosure Package, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe (A) that the Registration Statement, on the
date of the Underwriting Agreement (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, (B)
that the Pricing Disclosure Package, as of the Applicable Time, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or (C) 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 Pricing Disclosure Package, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Pricing Prospectus and the Final Supplemented
Prospectus under the captions "Description of the Series JJ Senior Notes -
Book-Entry-Only Issuance - The Depository Trust Company" or "The Policy and the
Insurer" or under the caption "Experts" (as it relates to information with
respect to the Insurer) appearing on page S-13 thereof or in Appendix A thereto.
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 V
[Letterhead of Cravath, Swaine & Moore LLP]
June ___, 2006
Alabama Power Company
Series JJ 6.375% Senior Notes due June 15, 2046
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank, N.A.
(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 Thirty-Sixth Supplemental
Indenture, dated as of June 14, 2006 (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 opinion that:
(i) Based solely on a certificate from the Comptroller of the
Currency, the Bank is a national banking association formed under the
laws of the United States and is authorized thereunder to transact the
business of banking;
(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
articles of association 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,
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
As Representatives of the Several
Underwriters
Alabama Power Company
600 North 18th Street
Birmingham, AL 35291
Financial Guaranty Insurance Company
125 Park Avenue
New York, NY 10017
Schedule VI
[Letterhead of DEWEY BALLANTINE LLP]
June ___, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series JJ 6.375% Senior Notes
due June 15, 2046
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 $150,000,000 aggregate principal amount of
its Series JJ 6.375% Senior Notes due June 15, 2046 (the "Notes")
pursuant to a Senior Note Indenture dated as of December 1, 1997, by
and between the Company and JPMorgan Chase Bank, N.A. (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Thirty-Sixth
Supplemental Indenture, dated as of June 14, 2006 (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 June 7, 2006 (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 6(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. 333-126348,
333-126348-01, 333-126348-02 and 333-126348-03) pertaining to the Notes
and certain other securities filed by the Company under the Securities
Act of 1933, as amended (the "Act"), as it became effective under the
Act (the "Registration Statement"); the Company's prospectus dated July
19, 2005 (the "Basic Prospectus") as supplemented by a preliminary
prospectus supplement dated June 6, 2006 (the "Pricing Prospectus"),
filed by the Company pursuant to Rule 424(b) of the rules and
regulations of the Securities and Exchange Commission (the
"Commission") under the Act, 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, 2005, the Quarterly Report on Form 10-Q
of the Company for the quarter ended March 31, 2006 and the Current
Reports on Form 8-K of the Company dated January 10, 2006, January 11,
2006, January 13, 2006, January 31, 2006, February 1, 2006, February
20, 2006, March 8, 2006, March 9, 2006 and June 6, 2006 (the "Pricing
Exchange Act Documents"), and a prospectus supplement dated June 7,
2006 (together with the Basic Prospectus, the "Final Supplemented
Prospectus"), filed by the Company pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, which, pursuant to
Form S-3, incorporates by reference the Pricing Exchange Act Documents
and the Current Report on Form 8-K of the Company dated June 7, 2006
and June 7, 2006 (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
and the Indenture. We have also examined the free writing prospectus
prepared by the Company and filed with the Commission on June 7, 2006
pursuant to Rule 433 of the Act (the "Permitted Free Writing
Prospectus"). The documents listed in Schedule III to the Underwriting
Agreement, taken together, are collectively referred to as the "Pricing
Disclosure Package."
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 Pricing Disclosure Package
and 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 Pricing Disclosure Package and 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 Pricing Disclosure Package, 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 Pricing Disclosure Package,
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 Pricing Disclosure Package, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration Statement, the
Pricing Disclosure Package and the Final Supplemented Prospectus and
our participation in the conferences referred to above, (i) we are of
the opinion that the Registration Statement, on the date of the
Underwriting Agreement and the Final Supplemented Prospectus, as of
June 7, 2006, 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 Pricing
Disclosure Package, 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, on the date of the
Underwriting Agreement (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, that the Pricing Disclosure Package, as of the Applicable
Time, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, 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 Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Pricing
Prospectus and the Final Supplemented Prospectus under the captions
"Description of the Series JJ Senior Notes - Book-Entry-Only Issuance -
The Depository Trust Company" or "The Policy and the Insurer" or under
the caption "Experts" (as it relates to information with respect to the
Insurer) appearing on page S-13 thereof or in Appendix A thereto.
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 6 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 opinions (i) pursuant to Sections
102, 302 and 904 of the Indenture and (ii) in connection with the
Company's listing application with respect to the Notes to the New York
Stock Exchange, insofar as such opinions relate to matters of New York
law.
Very truly yours,
DEWEY BALLANTINE LLP
Schedule VII
[Letterhead of FINANCIAL GUARANTY INSURANCE COMPANY]
June __, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0602
as Representatives of the Several Underwriters
Alabama Power Company
600 North 18th Street
Birmingham, Alabama 35291
JPMorgan Chase Bank, N.A.
4 New York Plaza
New York, New York 10004
Alabama Power Company
Series JJ 6.375% Senior Notes
due June 15, 2046
Ladies and Gentlemen:
I am Senior Counsel of Financial Guaranty Insurance Company ("Financial
Guaranty"), and have been requested to render an opinion concerning the issuance
by Financial Guaranty of its Surety Bond No. ______ (the "Surety Bond") in
connection with the issuance of the captioned obligations (the "Notes"). I have
examined such documents and records as I have deemed relevant for purposes of
this opinion, including (a) the Certificate of Incorporation of Financial
Guaranty, including all amendments thereto, (b) the amended By-laws of Financial
Guaranty as in effect on the date hereof, (c) the certificate of authority
issued to Financial Guaranty by the Superintendent of Insurance of the State of
New York, (d) the certificate of authority issued to Financial Guaranty by the
Commissioner of Insurance of the State of Alabama, (e) the executed Surety Bond,
(f) the statements in the Preliminary Prospectus Supplement dated June 6, 2006
and the Final Prospectus Supplement dated June 7, 2006 relating to the Notes
(together with the Preliminary Prospectus Supplement, the "Prospectus
Supplement") under the caption "The Policy and the Insurer" and in Appendix A
thereto and (g) the Insurance Agreement, dated as of June 14, 2006, between
Financial Guaranty and Alabama Power Company (the "Insurance Agreement").
On the basis of the foregoing, it is my opinion that:
(1) Financial Guaranty is a stock insurance corporation validly existing
and in good standing under the laws of the State of New York and
qualified to do business therein and is licensed and authorized to
issue its financial guaranty insurance policies under the laws of the
State of Alabama.
(2) The Surety Bond is valid and binding upon Financial Guaranty and
enforceable in accordance with its terms, subject to applicable laws
affecting creditors' rights generally.
(3) The execution and delivery by Financial Guaranty of the Surety Bond,
and the performance by Financial Guaranty of the terms thereof, will
not: (i) conflict with any of the terms, conditions or provisions of
(A) the Certificate of Incorporation of Financial Guaranty, including
any amendments thereto, (B) the amended By-laws of Financial Guaranty
as in effect on the date hereof, or (C) to my actual knowledge, any
covenant contained in any contract, agreement or instrument to which
Financial Guaranty is bound, which contract, agreement or instrument is
material to the financial condition of Financial Guaranty; (ii) to my
actual knowledge, constitute a default under any such contract,
agreement or instrument or (iii) contravene any law or governmental
regulation or order presently binding on Financial Guaranty the
contravention of which would affect the validity and enforcement of the
Surety Bond.
(4) The Insurance Agreement has been duly authorized, executed and
delivered by Financial Guaranty and, assuming the due authorization,
execution and delivery thereof by Alabama Power Company, constitutes a
valid and legally binding instrument of Financial Guaranty, enforceable
against Financial Guaranty in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws affecting
the enforcement of creditors' rights generally as such laws would apply
in the event of the liquidation, conservation or rehabilitation of, or
other similar occurrence with respect to, Financial Guaranty.
(5) Financial Guaranty, as an insurance company, is not eligible for relief
under the Federal Bankruptcy Laws. Any proceedings for the liquidation,
conservation or rehabilitation of Financial Guaranty would be governed
by the provisions of the Insurance Law of the State of New York.
(6) The statements described above in the Prospectus Supplement relating to
Financial Guaranty and the Surety Bond accurately and fairly present
the summary information set forth therein and do not omit any material
fact with respect to the description of Financial Guaranty relative to
the material terms of the Surety Bond or the ability of Financial
Guaranty to meet its obligations under the Surety Bond, except that no
opinion is expressed as to any financial statements or other financial
information included or referred to in, or incorporated by reference
into, the Prospectus Supplement relating to Financial Guaranty, and no
opinion is expressed as to the omission of Financial Guaranty's
financial statements from the Prospectus Supplement. The form of Surety
Bond contained in the Prospectus Supplement is a true and complete form
of the Surety Bond.
(7) The Surety Bond constitutes an "insurance policy" within the meaning of
Section 3(a)(8) of the Securities Act of 1933, as amended (the "Act"),
and is not required to be registered under the Act.
Very truly yours,
Senior Counsel