Exhibit 4.2
ALABAMA POWER COMPANY
TO
JPMORGAN CHASE BANK, N.A.,
TRUSTEE
THIRTY-SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 14, 2006
SERIES JJ 6.375% SENIOR NOTES
DUE JUNE 15, 2046
2
TABLE OF CONTENTS(1)
PAGE
Table of Contents
Page
ARTICLE 1 Series JJ Senior Notes......................................................................1
SECTION 101. Establishment..........................................................................1
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SECTION 102. Definitions............................................................................2
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SECTION 103. Payment of Principal and Interest......................................................3
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SECTION 104. Denominations..........................................................................4
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SECTION 105. Global Securities......................................................................4
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SECTION 106. Transfer...............................................................................5
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SECTION 107. Redemption at the Company's Option.....................................................5
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SECTION 108. Mandatory Redemption...................................................................5
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ARTICLE 2 Special Insurance Provisions................................................................6
SECTION 201. Supplemental Indentures................................................................6
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SECTION 202. Events of Default and Remedies.........................................................6
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SECTION 203. Insurance Policy Payment Procedures....................................................7
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SECTION 204. Application of Term "Outstanding" to Series JJ Notes...................................8
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SECTION 205. Concerning the Special Insurance Provisions............................................8
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ARTICLE 3 Miscellaneous Provisions....................................................................8
SECTION 301. Recitals by Company....................................................................8
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SECTION 302. Ratification and Incorporation of Original Indenture...................................8
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SECTION 303. Executed in Counterparts...............................................................9
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EXHIBIT A FORM OF SERIES JJ NOTE
EXHIBIT B CERTIFICATE OF AUTHENTICATION
1 This Table of Contents does not constitute part of the Indenture or have any
bearing upon the interpretation of any of its terms and provisions.
THIS THIRTY-SIXTH SUPPLEMENTAL INDENTURE is made as of the 14th day of
June, 2006, by and between ALABAMA POWER COMPANY, an Alabama corporation, 600
North 18th Street, Birmingham, Alabama 35291 (the "Company"), and JPMORGAN CHASE
BANK, N.A., a national banking association, 4 New York Plaza, New York, New York
10004 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Note
Indenture, dated as of December 1, 1997 (the "Original Indenture"), with
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank), as
heretofore supplemented;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as further
supplemented by this Thirty-Sixth Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Senior Notes may
at any time be established pursuant to a supplemental indenture executed by the
Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new
series of Senior Notes;
WHEREAS, additional Senior Notes of other series hereafter established,
except as may be limited in the Original Indenture as at the time supplemented
and modified, may be issued from time to time pursuant to the Indenture as at
the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Thirty-Sixth Supplemental Indenture and to make it a valid and
binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Series JJ Senior Notes
SECTION 101. Establishment. There is hereby established a new series of Senior
Notes to be issued under the Indenture, to be designated as the Company's Series
JJ 6.375% Senior Notes due June 15, 2046 (the "Series JJ Notes").
There are to be authenticated and delivered $150,000,000 aggregate
principal amount of Series JJ Notes, and such principal amount of the Series JJ
Notes may be increased from time to time pursuant to Section 301 of the Original
Indenture. All Series JJ Notes need not be issued at the same time and such
series may be reopened at any time, without the consent of any Holder, for
issuances of additional Series JJ Notes. Any such additional Series JJ Notes
will have the same interest rate, maturity and other terms, including the
benefit of the Policy (appropriately increased to cover the principal amount of
and interest due on the additional Series JJ Notes), as those initially issued.
No Series JJ Notes shall be authenticated and delivered in excess of the
principal amount as so increased except as provided by Sections 203, 303, 304,
907 or 1107 of the Original Indenture. The Series JJ Notes shall be issued in
definitive fully registered form.
The Series JJ Notes shall be issued in the form of one or more Global
Securities in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Series JJ Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
JJ Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series JJ Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
The Series JJ Notes will not have a sinking fund.
SECTION 102. Definitions. The following defined terms used herein shall, unless
the context otherwise requires, have the meanings specified below. Capitalized
terms used herein for which no definition is provided herein shall have the
meanings set forth in the Original Indenture.
"Due for Payment" means, when referring to the principal of a Series JJ
Note, the Stated Maturity and does not refer to any earlier date on which
payment is due by reason of a call for redemption, acceleration or other
advancement of maturity and means, when referring to interest on a Series JJ
Note, the stated date for payment in interest.
"Fiscal Agent" means U.S. Bank Trust National Association, New York,
New York, or its successor.
"Insurance Agreement" means that certain Insurance Agreement, dated as
of June 14, 2006, by and between the Company and the Insurer.
"Insurer" means Financial Guaranty Insurance Company, a New York stock
insurance company, or any successor thereto.
"Interest Payment Dates" means March 15, June 15, September 15 and
December 15 of each year, commencing September 15, 2006.
"Mandatory Redemption Event" means the Company's failure to comply with
(i) Section 1.02 of the Insurance Agreement, the continuance of such failure for
a period in excess of 10 days after receipt by the Company of written notice
thereof from the Insurer and the receipt by the Trustee of notice thereof in
accordance with Section 108 hereof; or (ii) Section 3.01 or Section 3.02 of the
Insurance Agreement, the continuance of such failure for a period in excess of
30 days after receipt by the Company of written notice thereof from the Insurer
and the receipt by the Trustee of notice thereof in accordance with Section 108
hereof.
"Nonpayment" means the failure by the Company to provide sufficient
funds to the Paying Agent for payment in full of all principal or interest on
the Series JJ Notes Due for Payment and includes any payment of principal or
interest (as applicable) made to a Holder of the Series JJ Notes by or on behalf
of the Company which has been recovered from such Holder pursuant to the United
States Bankruptcy Code by a trustee in bankruptcy in accordance with a final,
nonappealable order of a court having competent jurisdiction.
"Original Issue Date" means June 14, 2006.
"Policy" means the surety bond issued by the Insurer that guarantees
payment of principal of and interest on the Series JJ Notes when such principal
or interest is Due for Payment.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date (whether or not a Business Day).
"Stated Maturity" means June 15, 2046.
SECTION 103. Payment of Principal and Interest. The principal of the Series JJ
Notes shall be due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Series JJ Notes shall bear interest at the rate of
6.375% per annum until paid or duly provided for. Interest shall be paid
quarterly in arrears on each Interest Payment Date to the Person in whose name
the Series JJ Notes are registered on the Regular Record Date for such Interest
Payment Date, provided that interest payable at the Stated Maturity of principal
or on a Redemption Date as provided herein will be paid to the Person to whom
principal is payable. Any such interest that is not so punctually paid or duly
provided for will forthwith cease to be payable to the Holders on such Regular
Record Date and may either be paid to the Person or Persons in whose name the
Series JJ Notes are registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of the Series JJ Notes not less than ten (10)
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange,
if any, on which the Series JJ Notes shall be listed, and upon such notice as
may be required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series JJ Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series JJ Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series JJ Notes is not a Business Day, then payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date the
payment was originally payable.
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Series JJ Notes shall be made upon surrender of the
Series JJ Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series JJ Notes shall be paid in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of interest (including interest on
any Interest Payment Date) will be made, subject to such surrender where
applicable, at the option of the Company, (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer or other electronic transfer at such place and
to such account at a banking institution in the United States as may be
designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto. Regardless of any other
arrangement agreed to between the Company and the Paying Agent, the Company
shall deposit with the Paying Agent sufficient funds for the principal and
interest payment due at the Stated Maturity no later than one Business Day prior
to the Stated Maturity.
SECTION 104. Denominations. The Series JJ Notes may be issued in
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denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series JJ Notes will be issued in the form
of one or more Global Securities registered in the name of the Depositary (which
shall be The Depository Trust Company) or its nominee. Except under the limited
circumstances described below, Series JJ Notes represented by the Global
Security will not be exchangeable for, and will not otherwise be issuable as,
Series JJ Notes in definitive form. The Global Securities described above may
not be transferred except by the Depositary to a nominee of the Depositary or by
a nominee of the Depositary to the Depositary or another nominee of the
Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series JJ Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
Subject to the procedures of the Depositary, a Global Security shall be
exchangeable for Series JJ Notes registered in the names of persons other than
the Depositary or its nominee only if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global
Security and no successor Depositary shall have been appointed by the Company,
or if at any time the Depositary ceases to be a clearing agency registered under
the Securities Exchange Act of 1934, as amended, at a time when the Depositary
is required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Company, in each case within 90 days
after the Company receives such notice or becomes aware of such cessation, (ii)
the Company in its sole discretion determines that such Global Security shall be
so exchangeable, or (iii) there shall have occurred an Event of Default with
respect to the Series JJ Notes. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Series JJ Notes
registered in such names as the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer or
exchange of Series JJ Notes, but payment will be required of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (a) to issue, transfer or exchange
any Series JJ Notes during a period beginning at the opening of business fifteen
(15) days before the date of the mailing of a notice pursuant to Section 1104 of
the Original Indenture identifying the serial numbers of the Series JJ Notes to
be called for redemption, and ending at the close of business on the day of the
mailing, or (b) to transfer or exchange any Series JJ Notes theretofore selected
for redemption in whole or in part, except the unredeemed portion of any Series
JJ Notes redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series JJ Notes will be
subject to redemption at the option of the Company in whole or in part, without
premium or penalty, at any time and from time to time, on or after June 14,
2011, upon not less than 30 nor more than 60 days' notice, at a Redemption Price
equal to 100% of the principal amount of the Series JJ Notes to be redeemed plus
any accrued and unpaid interest thereon to the Redemption Date.
In the event of redemption of the Series JJ Notes in part only, a new
Series JJ Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series JJ Notes shall, with
respect to the principal thereof, be divisible by $25.
SECTION 108. Mandatory Redemption. Upon the occurrence of a Mandatory Redemption
Event, the Company shall redeem the Series JJ Notes, in whole but not in part,
prior to the Stated Maturity upon not less than 30 nor more than 60 days' notice
at a Redemption Price equal to 100% of the principal amount plus accrued and
unpaid interest to the Redemption Date. A Mandatory Redemption Event will be
deemed to have occurred at the time that the Trustee receives written notice
from the Insurer of the occurrence of a Mandatory Redemption Event and such
notice shall constitute notice under Section 1102 of the Original Indenture and
shall not be required to be evidenced by a Board Resolution. Subject to the
notice requirements set forth herein, the Company shall redeem the Series JJ
Notes (i) on June 14, 2011 if the Mandatory Redemption Event occurs on or prior
to April 15, 2011 or (ii) if the Mandatory Redemption Event occurs after April
15, 2011, within 60 days after the occurrence of the Mandatory Redemption Event,
but in no event earlier than June 14, 2011. Any notice of redemption required to
be given by the Trustee in connection with a redemption required by this Section
108 need not be given earlier than 15 days after the date the Trustee receives
notice of a Mandatory Redemption Event pursuant to this Section 108.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
ARTICLE 2
Special Insurance Provisions
SECTION 201. Supplemental Indentures. The consent of the Insurer shall be
required with respect to any indenture or indentures supplemental to the
Original Indenture requiring the consent of the Holders of the Series JJ Notes
pursuant to Section 902 of the Original Indenture. The Company shall deliver to
any rating agency rating the Series JJ Notes notice of each indenture or
indentures supplemental to the Original Indenture and a copy thereof at least 15
days in advance of its execution and provide the Insurer with a full transcript
of all proceedings related to the execution of any such indenture or indentures
supplemental to the Original Indenture.
SECTION 202. Events of Default and Remedies. Subject to Section 107 of the
Original Indenture and to the Trust Indenture Act, including, without
limitation, Sections 316(a)(1) and 317(a) thereof, if an Event of Default with
respect to the Series JJ Notes occurs and is continuing, the Insurer shall be
entitled to control and direct the enforcement of all rights and remedies
granted to the Holders of the Series JJ Notes or the Trustee for the benefit of
the Holders of the Series JJ Notes under the Indenture, including, without
limitation, (i) the right to accelerate the principal of the Series JJ Notes as
provided in Section 502 of the Original Indenture, and (ii) the right to annul
any such declaration of acceleration, and the Insurer shall also be entitled to
approve any waiver of an Event of Default with respect to the Series JJ Notes,
the obligation of the Trustee to comply with any such direction to be subject to
compliance with the conditions set forth in Sections 512 and 603(e) of the
Original Indenture (as if references in those Sections to Holders were
references to the Insurer) and the protections provided to the Trustee by
Section 601(c)(3) of the Original Indenture shall be applicable with respect to
any direction from the Insurer given pursuant hereto (as if references in said
Section to Holders were references to the Insurer). The Insurer shall be
entitled to notify the Trustee and the Company of a default referred to in
Section 501(4) of the Original Indenture relating to the Series JJ Notes as if
it were the Holder of at least 25% in principal amount of the Outstanding Series
JJ Notes, provided that such notice shall otherwise conform to the requirements
of said Section 501(4).
The Trustee and the Company shall give the Insurer immediate notice of
any default in the payment of the principal of or interest on the Series JJ
Notes (the obligation of the Trustee to give such notice to be deemed satisfied
if the Paying Agent shall have provided the notice required by Section 203(a)
hereof). The Trustee and the Company shall give the Insurer notice of any event
which with the giving of notice or the passage of time would constitute an Event
of Default with respect to the Series JJ Notes within 30 days of the Trustee's
or the Company's knowledge thereof, provided that the Trustee shall not be
deemed to have knowledge thereof unless a Responsible Officer of the Trustee
assigned to its Corporate Trust Office shall have actual knowledge thereof or
unless the Trustee shall have received written notice thereof from the Company
or the Holders of at least 25% in principal amount of the Series JJ Notes then
Outstanding.
No effect shall be given to payments made under the Policy in
determining whether an Event of Default with respect to the Series JJ Notes has
occurred or is continuing.
SECTION 203. Insurance Policy Payment Procedures.(b) (a) If the Paying Agent
does not have sufficient funds for any payment of principal or interest Due for
Payment by reason of the Company's Nonpayment, then any Holder of the Series JJ
Notes or the Paying Agent will notify the Insurer by telephonic or telegraphic
notice, subsequently confirmed in writing, or written notice by registered or
certified mail. The Insurer shall make such payment to the Fiscal Agent on the
date on which such principal or interest is Due for Payment or within one
Business Day (as defined in the Policy) after receipt of the notice of
Nonpayment, whichever is later, and the Fiscal Agent shall make such payments in
accordance with the Policy. In addition to the foregoing:
(i) The Paying Agent shall provide the Insurer and the Fiscal Agent
with a list of the Holders entitled to receive principal or
interest payments from the Insurer under the terms of the Policy
and shall make arrangements for the Insurer and the Fiscal Agent
to disburse such amount Due for Payment on any Series JJ Note to
the Holder.
(ii) The Paying Agent shall, at the same time that it provides the
Insurer with the list of Holders, notify the Holders entitled to
receive payment of principal or interest on the Series JJ Notes
from the Insurer (A) as to the fact of such entitlement, (B) that
the Insurer will remit to them all or part of the interest
payments Due for Payment, (C) that, except as provided in
paragraph (iii) below, in the event that the Holder is entitled
to receive full payment of principal from the Insurer, such
Holder must tender the Series JJ Note to the Insurer or the
Fiscal Agent with an instrument of transfer executed in the name
of the Insurer and (D) that, except as provided in paragraph
(iii) below, in the event that such Holder is entitled to receive
partial payment of principal from the Insurer, such Holder must
tender its Series JJ Note for payment to the Paying Agent which
shall note on such Series JJ Note the portion of principal paid
by the Paying Agent, and then, with an acceptable form of
assignment executed in the name of the Insurer, to the Fiscal
Agent which will then pay the unpaid portion of principal to the
Holder subject to the terms of the Policy.
(iii) In the event that the Trustee has notice that any payment of
principal of or interest on a Series JJ Note has been recovered
from a Holder pursuant to the United States Bankruptcy Code by a
trustee in bankruptcy in accordance with the final, nonappealable
order of a court having competent jurisdiction, the Trustee shall
notify the Insurer of such recovery in accordance with the notice
requirements of this Section 203(a) and notify all Holders that
in the event that any Holder's payment is so recovered, such
Holder will be entitled to payment from the Insurer to the extent
of such recovery. The Paying Agent shall furnish to the Insurer
its records evidencing the payments of principal of and interest
on the Series JJ Notes which have been made by the Paying Agent
and subsequently recovered from the Holders, and the dates on
which such payments were made.
(iv) The Insurer shall, to the extent it makes payment of principal of
or interest on the Series JJ Notes, become subrogated to the
rights of the recipients of such payments in accordance with the
terms of the Policy and, to evidence such subrogation, (A) in the
case of subrogation as to claims for past due interest, the
Trustee shall note the Insurer's rights as subrogee on the
Security Register maintained by the Trustee upon receipt from the
Insurer of proof of the payment of interest thereon to the Holder
of such Series JJ Notes and (B) in the case of subrogation as to
claims for past due principal, the Trustee shall note the
Insurer's rights as subrogee on the Security Register for the
Series JJ Notes maintained by the Trustee, as Security Registrar,
upon receipt of proof of the payment of the principal thereof to
the Holders of such Series JJ Notes. Notwithstanding anything in
this Supplemental Indenture or the Series JJ Notes to the
contrary, the Paying Agent shall make payment of such past due
interest and past due principal directly to the Insurer to the
extent that the Insurer is a subrogee with respect thereto.
SECTION 204. Application of Term "Outstanding" to Series JJ Notes. In the event
that the principal and/or interest due on the Series JJ Notes shall be paid by
the Insurer pursuant to the Policy, the Series JJ Notes shall remain Outstanding
for all purposes of the Indenture, not be considered defeased or otherwise
satisfied and not be considered paid by the Company, and the Indenture and all
covenants, agreements and other obligations of the Company to the Holders of the
Series JJ Notes shall continue to exist and such covenants, agreements and other
obligations shall run to the benefit of the Insurer, and the Insurer shall be
subrogated to the rights of such Holders to the extent of each such payment.
SECTION 205. Concerning the Special Insurance Provisions. The provisions of this
Article 2 shall apply notwithstanding anything in the Indenture to the contrary,
but only so long as the Policy shall be in full force and effect and the Insurer
is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Thirty-Sixth Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of Series JJ Notes and of this Thirty-Sixth Supplemental Indenture as
fully and with like effect as if set forth herein in full.
SECTION 302. Ratification and Incorporation of Original Indenture. As heretofore
supplemented and as supplemented hereby, the Original Indenture is in all
respects ratified and confirmed, and the Original Indenture as heretofore
supplemented and as supplemented by this Thirty-Sixth Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Thirty-Sixth Supplemental Indenture
may be simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
[Signature page to follow.]
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
ATTEST: ALABAMA POWER COMPANY
By: /s/ Ceila Shorts By: /s/ Art P. Beattie
--------------------------------- --------------------------------
Assistant Secretary Art P. Beattie
Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: JPMORGAN CHASE BANK, N.A.,
as Trustee
By: /s/ Diane Darconte By: /s/ L O'Brien
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Trust Officer L. O'Brien
Vice President
EXHIBIT A
FORM OF SERIES JJ NOTE
NO. __ CUSIP NO. 010392 52 0
ALABAMA POWER COMPANY
SERIES JJ 6.375% SENIOR NOTE
DUE JUNE 15, 2046
Principal Amount: $__________________
Regular Record Date: 15th calendar day prior to
Interest Payment Date (whether
or not a Business Day)
Original Issue Date: June 14, 2006
Stated Maturity: June 15, 2046
Interest Payment Dates: March 15, June 15, September 15
and December 15
Interest Rate: 6.375%
Authorized Denomination: $25 or any integral multiple
thereof
Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
___________________________________________, or registered assigns, the
principal sum of ____________________________________________ DOLLARS
($______________) on the Stated Maturity shown above (or upon earlier
redemption), and to pay interest thereon from the Original Issue Date shown
above, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly in arrears on each Interest Payment Date as
specified above, commencing on September 15, 2006, and on the Stated Maturity
(or upon earlier redemption) at the rate per annum shown above until the
principal hereof is paid or made available for payment and on any overdue
principal and on any overdue installment of interest. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date (other
than an Interest Payment Date that is the Stated Maturity or on a Redemption
Date) will, as provided in such Indenture, be paid to the Person in whose name
this Note (the "Note") is registered at the close of business on the Regular
Record Date as specified above next preceding such Interest Payment Date,
provided that any interest payable at the Stated Maturity or on any Redemption
Date will be paid to the Person to whom principal is payable. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this Note
is registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Notes of this series shall be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any Interest Payment Date would otherwise be a day
that is not a Business Day, then payment of the interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee is closed for business.
Payment of the principal of and interest due at the Stated Maturity or
earlier redemption of the Series JJ Notes shall be made upon surrender of the
Series JJ Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series JJ Notes shall be paid in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payment of interest (including interest on
an Interest Payment Date) will be made, subject to such surrender where
applicable, at the option of the Company, (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer or other electronic transfer at such place and
to such account at a banking institution in the United States as may be
designated in writing to the Trustee at least 16 days prior to the date for
payment by the Person entitled thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
ALABAMA POWER COMPANY
By:
-----------------------
Vice President
Attest:
Assistant Secretary
{Seal of ALABAMA POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
--------------------------------------
Authorized Officer
- --------------------------
(Reverse Side of Note)
This Note is one of a duly authorized issue of Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of December 1, 1997, as supplemented (the "Indenture"),
between the Company and JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank), Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures incidental
thereto reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes issued thereunder and of the terms upon
which said Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof as Series JJ 6.375% Senior Notes
due June 15, 2046 (the "Series JJ Notes") which is unlimited in aggregate
principal amount. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
The Series JJ Notes (i) shall, at any time or, from time to time, on or
after June 14, 2011 upon not less than 30 nor more than 60 days' notice to the
holders thereof, be subject to optional redemption at the option of the Company,
in whole or in part, at a Redemption Price equal to 100% of the principal amount
of the Series JJ Notes to be redeemed plus accrued and unpaid interest on the
Series JJ Notes to the Redemption Date and (ii) shall be subject to mandatory
redemption, upon not less than 30 nor more than 60 days' notice, in whole but
not in part, at a Redemption Price equal to 100% of the principal amount of the
Series JJ Notes plus accrued and unpaid interest on such Series JJ Notes to the
Redemption Date, upon the occurrence of the Company's failure to comply with (x)
Section 1.02 of the Insurance Agreement, dated as of June 14, 2006 (the
"Insurance Agreement"), by and between the Company and Financial Guaranty
Insurance Company (the "Insurer"), the continuance of such failure for a period
in excess of 10 days after receipt by the Company of written notice thereof from
the Insurer and the receipt by the Trustee of notice thereof, or (y) Section
3.01 or Section 3.02 of the Insurance Agreement, the continuance of such failure
for a period in excess of 30 days after receipt by the Company of written notice
thereof from the Insurer and the receipt by the Trustee of notice thereof (each,
a "Mandatory Redemption Event"). Subject to the notice requirements of the
Indenture, the Company shall redeem the Series JJ Notes (i) on June 14, 2011 if
the Mandatory Redemption Event occurs on or prior to April 15, 2011 or (ii) if
the Mandatory Redemption Event occurs after April 15, 2011, within 60 days after
the occurrence of the Mandatory Redemption Event, but in no event earlier than
June 14, 2011.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the surrender hereof. The Series JJ Notes will
not have a sinking fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
STATEMENT OF INSURANCE
Financial Guaranty Insurance Company (the "Insurer") has issued a
surety bond containing the following provisions with respect to the Series JJ
Notes, such surety bond being on file at the principal corporate trust office of
Trustee, as paying agent for the Series JJ Notes (the "Paying Agent"):
The Insurer hereby unconditionally and irrevocably agrees to pay for
disbursement to the Holders that portion of the principal of and interest on the
Series JJ Notes which is then Due for Payment and which the Company shall have
failed to provide. Due for Payment means, with respect to principal, the stated
maturity thereof, and does not refer to any earlier date on which the payment of
principal of the Series JJ Notes is due by reason of call for redemption,
acceleration or other advancement of maturity and means, with respect to
interest, the stated date for payment of such interest.
Upon receipt of telephonic or telegraphic notice, subsequently
confirmed in writing, or written notice by registered or certified mail, from a
Holder or the Paying Agent to the Insurer that the required payment of principal
or interest has not been made by the Company to the Paying Agent, the Insurer on
the due date of such payment or within one Business Day (as defined in the
surety bond) after receipt of notice of such nonpayment, whichever is later,
will make a deposit of funds, in an account with U.S. Bank Trust National
Association, or its successor as its agent (the "Fiscal Agent"), sufficient to
make the portion of such payment not paid by the Company. Upon presentation to
the Fiscal Agent of evidence satisfactory to it of the Holder's right to receive
such payment and any appropriate instruments of assignment required to vest all
of such Holder's right to such payment in the Insurer, the Fiscal Agent will
disburse such amount to the Holder.
As used herein the term "Holder" means the person other than the
Company or the borrower(s) of note proceeds who at the time of nonpayment of a
Series JJ Note is entitled under the terms of such Series JJ Note to payment
thereof.
The surety bond is non-cancellable for any reason.
Financial Guaranty Insurance Company
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to
JT TEN- as joint tenants Minors Act
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
___________________________________________________________________________
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
___________________________________________________________________________
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
___________________________________________________________________________
___________________________________________________________________________
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
-------------------- ------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular without
alteration or enlargement, or any change whatever.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, N.A.,
as Trustee
By:
---------------------------------
Authorized Officer