Exhibit 4.2
ALABAMA POWER COMPANY
TO
THE CHASE MANHATTTAN BANK,
TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 26, 1998
$200,000,000
SERIES B 7% SENIOR QUARTERLY INTEREST NOTES
DUE DECEMBER 31, 2047
TABLE OF CONTENTS1
PAGE
ARTICLE 1..............................................................................1
SECTION 101. Establishment.............................................................2
SECTION 102. Definitions...............................................................3
SECTION 103. Payment of Principal and Interest.........................................3
SECTION 104. Denominations.............................................................3
SECTION 105. Global Securities.........................................................3
SECTION 106. Transfer..................................................................4
SECTION 107. Redemption................................................................4
SECTION 108. Limitation on Sale and Lease-Back Transactions............................5
ARTICLE 2..............................................................................5
SECTION 201. Recitals by Company.......................................................5
SECTION 202. Ratification and Incorporation of Original Indenture......................5
SECTION 203. Executed in Counterparts..................................................5
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
i
THIS SECOND SUPPLEMENTAL INDENTURE is made as of the 26th day
of February, 1998, by and between ALABAMA POWER COMPANY, an Alabama corporation,
600 North 18th Street, Birmingham, Alabama 35291 (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, 450 West 33rd Street, New York,
New York 10001 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a Senior Note
Indenture, dated as of December 1, 1997 (the "Original Indenture"), with The
Chase Manhattan Bank, as supplemented by a First Supplemental Indenture, dated
as of December 12, 1997 (the "First Supplemental Indenture"), with The Chase
Manhattan Bank;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by the First Supplemental
Indenture and this Second Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Senior
Notes may at any time be established by the Board of Directors of the Company in
accordance with the provisions of the Original Indenture and the terms of such
series may be described by 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,
delivery and recording of this Second 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 B 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 B 7% Senior Quarterly Interest Notes due December 31, 2047 (the "Series B
Notes").
There are to be authenticated and delivered $200,000,000 principal
amount of Series B Notes, and no further Series B Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series B Notes shall be issued in definitive fully
registered form.
The Series B Notes shall be issued in the form of one Global Security
in substantially the form set out in Exhibit A hereto. The Depositary with
respect to the Series B Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
B Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series B 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.
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.
"Attributable Debt" means in respect of a Sale and Lease-Back
Transaction, as at the time of determination, the present value (discounted at
the interest rate borne by the Series B Notes) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale and Lease-Back Transaction (including any period for which such lease
has been extended).
"Consolidated Net Tangible Assets" means the total of all assets
(including revaluations thereof as a result of commercial appraisals, price
level restatement or otherwise) appearing on a consolidated balance sheet of the
Company, net of applicable reserves and deductions, but excluding goodwill,
trade names, trademarks, patents, unamortized debt discount and all other like
intangible assets (which term shall not be construed to include such
revaluations), less the aggregate of the consolidated current liabilities of the
Company appearing on such balance sheet.
"Interest Payment Dates" means March 31, June 30, September 30, and
December 31 of each year.
"Original Issue Date" means February 26, 1998.
"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.
"Sale and Lease-Back Transaction" shall have the meaning set forth in
Section 108 of this Second Supplemental Indenture.
2
"Stated Maturity" means December 31, 2047.
SECTION 103. Payment of Principal and Interest. The unpaid principal
amount of the Series B Notes shall bear interest at the rate of 7% 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 B 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 B 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 B 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 B 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 B Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series B 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 B Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case 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 B Notes shall be made upon surrender of the
Series B Notes at the Corporate Trust Office of the Trustee, 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 at such place and to such account at
a banking institution in the United States as may be designated in writing to
the Trustee at least sixteen (16) days prior to the date for payment by the
Person entitled thereto.
SECTION 104. Denominations. The Series B Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series B 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 B Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series B Notes in definitive form. The Global Securities described
above may not be transferred except by the Depositary to a nominee of the
3
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 B Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series B 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 B Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series B 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 B 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 B Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Series B 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 B Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series B Note redeemed in part.
SECTION 107. Redemption. The Series B Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, at any time or from time to time on or after February 26, 2003, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest to the Redemption Date.
In the event of redemption of the Series B Notes in part only, a new
Series B Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series B Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
4
Any redemption of less than all of the Series B Notes shall, with
respect to the principal thereof, be divisible by $25.
SECTION 108. Limitation on Sale and Lease-Back Transactions. So long as
any Series B Notes remain Outstanding, the Company shall not enter into any
arrangement with any Person providing for the leasing by the Company of any
assets which have been or are to be sold or transferred by the Company to such
Person (a "Sale and Lease-Back Transaction") unless: (i) such transaction
involves a lease for a temporary period not to exceed three years; (ii) such
transaction is between the Company and an Affiliate of the Company; (iii) such
transaction is entered into within 60 days after the initial acquisition by the
Company of the assets or property subject to such transaction; (iv) after giving
effect thereto, the aggregate amount of all Attributable Debt with respect to
all such Sale and Lease-Back Transactions does not exceed 10% of Consolidated
Net Tangible Assets; or (v) within the twelve months preceding the sale or
transfer or the twelve months following the sale or transfer, the Company
applies, in the case of a sale or transfer for cash, an amount equal to the net
proceeds thereof and, in the case of a sale or transfer otherwise than for cash,
an amount equal to the fair value of the assets so leased at the time of
entering into such arrangement (as determined by the Board of Directors), (a) to
the retirement of indebtedness for money borrowed, incurred or assumed by the
Company which by its terms matures at, or is extendible or renewable at the
option of the obligor to, a date more than twelve months after the date of
incurring, assuming or guaranteeing such debt or (b) to investment in any assets
of the Company.
This Section 108 is expressly being included in the Original Indenture
by this Second Supplemental Indenture solely for the benefit of the Holders of
the Series B Notes.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Second
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 B Notes and of this Second Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
heretofore supplemented by the First Supplemental Indenture and as supplemented
hereby, the Original Indenture is in all respects ratified and confirmed, and
the Original Indenture, the First Supplemental Indenture and this Second
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
5
SECTION 203. Executed in Counterparts. This Second 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.
6
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: __________________________ By:________________________________
Assistant Secretary Vice President, Secretary and Comptroller
ATTEST: THE CHASE MANHATTAN BANK, as Trustee
By: By:________________________________
Senior Trust Officer
EXHIBIT A
FORM OF SERIES B NOTE
NO. 1 CUSIP NO. 010392637
ALABAMA POWER COMPANY
SERIES B 7% SENIOR QUARTERLY INTEREST NOTE
DUE DECEMBER 31, 2047
Principal Amount: $_____________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: February 26, 1998
Stated Maturity: December 31, 2047
Interest Payment Dates: March 31, June 30, September 30 and December 31
Interest Rate: 7% per annum
Authorized Denomination: $25
Initial Redemption Date: February 26, 2003
Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_______________________________________________, or registered assigns, the
principal sum of _________ DOLLARS ($__________) 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 the Interest
Payment Date next succeeding the Original Issue Date shown above 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 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 date on which interest is payable on this Note 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, except that, if such
Business Day is in the next succeeding calendar year, payment shall be made on
the immediately preceding Business Day, in each case 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 B Notes shall be made upon surrender of the
Series B Notes at the Corporate Trust Office of the Trustee, 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 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.
2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
ALABAMA POWER COMPANY
By:_____________________________________________
Art P. Beattie
Vice President, Secretary and Comptroller
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.
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________________________
Authorized Officer
(Reverse Side of Note)
This Note is one of a duly authorized issue of Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of December 1, 1997, as supplemented (the "Indenture"),
between the Company and 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 B 7%
Senior Quarterly Interest Notes due December 31, 2047 (the "Series B Notes") in
the aggregate principal amount of up to $200,000,000. Capitalized terms used
herein for which no definition is provided herein shall have the meanings set
forth in the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after February 26, 2003
at the option of the Company, without premium or penalty, in whole or in part,
at a Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest to the Redemption Date.
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 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 registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
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.
THE CHASE MANHATTAN BANK,
as Trustee
By: ____________________________________
Authorized Officer