Exhibit 4.2
ALABAMA POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE.
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 17, 1998
$100,000,000
SERIES E 6.25% SENIOR NOTES
DUE SEPTEMBER 30, 2010
TABLE OF CONTENTS1
PAGE
ARTICLE 1Series E Senior Notes.........................................4
SECTION 101. Establishment.......................................................................................4
SECTION 102. Definitions.........................................................................................4
SECTION 103. Payment of Principal and Interest...................................................................5
SECTION 104. Denominations.......................................................................................5
SECTION 105. Global Securities...................................................................................5
SECTION 106. Transfer............................................................................................6
SECTION 107. Redemption at the Company's Option..................................................................6
SECTION 108. Redemption at the Holder's Option...................................................................7
ARTICLE 2Special Insurance Provisions.....................................9
SECTION 201. Supplemental Indentures.............................................................................9
SECTION 202. Events of Default and Remedies......................................................................9
SECTION 203. Insurance Policy Payment Procedures.................................................................9
SECTION 204. Application of Term "Outstanding" to Series E Notes................................................11
SECTION 205. Insurer as Third Party Beneficiary.................................................................11
SECTION 206. Notices............................................................................................11
SECTION 207. Concerning the Special Insurance Provisions........................................................11
SECTION 208. Amendments or Supplements..........................................................................11
ARTICLE 3Miscellaneous Provisions......................................12
SECTION 301. Recitals by Company................................................................................12
SECTION 302. Ratification and Incorporation of Original Indenture...............................................12
SECTION 303. Executed in Counterparts...........................................................................12
THIS FIFTH SUPPLEMENTAL INDENTURE is made as of the 17th day
of September, 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
Trustee, as supplemented by a First Supplemental Indenture, dated as of December
12, 1997 (the "First Supplemental Indenture"), a Second Supplemental Indenture
dated as of February 26, 1998 (the "Second Supplemental Indenture"), a Third
Supplemental Indenture, dated as of April 23, 1998 (the "Third Supplemental
Indenture"), and a Fourth Supplemental Indenture, dated as of August 19, 1998
(the "Fourth Supplemental Indenture");
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as
supplemented by this Fifth 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 Fifth 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 E Senior Notes
. There is hereby established a new series of Senior Notes to be issued
under the Indenture, to be designated as the Company's Series E 6.25% Senior
Notes due September 30, 2010 (the "Series E Notes").
There are to be authenticated and delivered $100,000,000 principal
amount of Series E Notes, and no further Series E Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series E Notes shall be issued in definitive fully
registered form.
The Series E 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 E Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
E Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series E 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 following defined terms used herein shall, unless the context
otherwise requires, have the meanings specified below. Capitalized terms used
herein for which no definition is provided herein shall have the meanings set
forth in the Original Indenture.
"Insurance Paying Agent" means State Street Bank and Trust Company,
N.A., New York, New York, or any successor thereto, as the Fiscal Agent under
the Policy.
"Insurer" means MBIA Insurance Corporation, a New York-domiciled stock
insurance corporation.
"Interest Payment Dates" means March 31, June 30, September 30, and
December 31 of each year.
"Original Issue Date" means September 17, 1998.
"Policy" means the financial guaranty insurance policy issued by the
Insurer with respect to regularly scheduled payments due for principal of and
interest on the Series E Notes as provided in such policy.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Stated Maturity" means September 30, 2010.
. The principal of the Series E Notes shall be due at Stated Maturity
(unless earlier redeemed). The unpaid principal amount of the Series E Notes
shall bear interest at the rate of 6.25% 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 E 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 E 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
E 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 E 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 E Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series E 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 E 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 E Notes shall be made upon surrender of the
Series E Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series E 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 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.
. The Series E Notes may be issued in the denominations of $1,000, or
any integral multiple thereof.
. The Series E 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 E Notes represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Series E 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 E 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 E 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 E Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series E Notes registered in such names as the Depositary shall
direct.
. No service charge will be made for any transfer or exchange of Series
E 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 E Notes except to the Insurer during a period beginning at the
opening of business fifteen (15) days before the day of the mailing of a notice
pursuant to Section 1104 of the Original Indenture identifying the serial
numbers of the Series E 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 E Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series E Note redeemed in part.
. The Series E 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 September 17, 2002, 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 E Notes in part only, a new
Series E 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 E Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series E Notes shall, with
respect to the principal thereof, be divisible by $1,000.
. For purposes of this Section 108, a "Beneficial Owner" means the
Person who has the right to sell, transfer or otherwise dispose of an interest
in a Series E Note and the right to receive the proceeds therefrom, as well as
the interest and principal payable to the Holder thereof. In general, a
determination of beneficial ownership in the Series E Notes will be subject to
the rules, regulations and procedures governing the Depositary and institutions
that have accounts with the Depositary or a nominee thereof ("Participants").
Unless the Series E Notes have been declared due and payable prior to
their maturity by reason of an Event of Default, the Representative (as
hereinafter defined) of a deceased Beneficial Owner has the right to request
redemption prior to Stated Maturity of all or part of his interest, expressed in
integral multiples of $1,000 principal amount, in the Series E Notes, and the
Company will redeem the same subject to the limitations that the Company will
not be obligated to redeem, during the period from the Original Issue Date
through and including October 1, 1999 (the "Initial Period"), and during any
twelve-month period which ends on and includes each October 1 thereafter (each
such twelve-month period being hereinafter referred to as a "Subsequent
Period"), (i) on behalf of a deceased Beneficial Owner any interest in the
Series E Notes which exceeds an aggregate principal amount of $25,000 or (ii)
interests in the Series E Notes in an aggregate principal amount exceeding
$2,000,000. A request for redemption may be initiated by the Representative of a
deceased Beneficial Owner at any time and in any principal amount in integral
multiples of $1,000. If the Company, although not obligated to do so, chooses to
redeem interests of any deceased Beneficial Owner in the Series E Notes in the
Initial Period or any Subsequent Period in excess of the $25,000 limitation,
such redemption, to the extent that it exceeds the $25,000 limitation for any
deceased Beneficial Owner, shall not be included in the computation of the
$2,000,000 limitation for such Initial Period or such Subsequent Period, as the
case may be, or for any succeeding Subsequent Period.
Subject to the $25,000 and $2,000,000 limitations, the Company will,
after the death of any Beneficial Owner, redeem the interest of such Beneficial
Owner in the Series E Notes within 60 days following receipt by the Trustee of a
Redemption Request (as herein defined). If Redemption Requests exceed the
aggregate principal amount of interests in Series E Notes required to be
redeemed during the Initial Period or during any Subsequent Period, then such
excess Redemption Requests will be applied in the order received by the Trustee
to successive Subsequent Periods, regardless of the number of Subsequent Periods
required to redeem such interests.
A request for redemption of an interest in the Series E Notes may be
initiated by the personal representative or other Person authorized to represent
the estate of the deceased Beneficial Owner or from a surviving joint tenant(s)
or tenant(s) by the entirety (each, a "Representative"). The Representative
shall deliver a request to the Participant through whom the deceased Beneficial
Owner owned such interest, in form satisfactory to the Participant, together
with evidence of the death of the Beneficial Owner, evidence of the authority of
the Representative satisfactory to the Participant, such waivers, notices or
certificates as may be required under applicable state or federal law and such
other evidence of the right to such redemption as the Participant shall require.
The request shall specify the principal amount of the interest in the Series E
Notes to be redeemed. The Participant shall thereupon deliver to the Depositary
a request for redemption substantially in the form attached as Exhibit C hereto
(a "Redemption Request"), accompanied by the documents submitted to the
Participant as above provided, and the Depositary will forward the same to the
Trustee. Documents accompanying Redemption Requests shall be in form
satisfactory to the Company. The Trustee may conclusively assume, without
independent investigation, that the statements contained in each Redemption
Request are true and correct and shall have no responsibility for reviewing any
documents accompanying a Redemption Request or for determining whether the
applicable decedent is in fact the Beneficial Owner of the interest in the
Series E Note to be redeemed or is in fact deceased and whether the
Representative is duly authorized to request redemption on behalf of the
applicable Beneficial Owner.
The price to be paid by the Company for interests in the Series E Notes
to be redeemed pursuant to a Redemption Request is 100% of the principal amount
thereof plus accrued but unpaid interest to the date of payment. Subject to
arrangements with the Depositary, payment for interests in the Series E Notes
which are to be redeemed shall be made to the Depositary upon presentation of
Series E Notes to the Trustee for redemption in the aggregate principal amount
specified in the Redemption Requests submitted to the Trustee by the Depositary
which are to be fulfilled in connection with such payment. The principal amount
of any Series E Notes acquired or redeemed by the Company other than by
redemption at the option of any Representative of a deceased Beneficial Owner
pursuant to this Section 108 shall not be included in the computation of either
the $25,000 or the $2,000,000 limitation for the Initial Period or for any
Subsequent Period.
For purposes of this Section 108, an interest in a Series E Note held
in tenancy by the entirety, joint tenancy or by tenants in common will be deemed
to be held by a single Beneficial Owner and the death of a tenant by the
entirety, joint tenant or tenant in common will be deemed the death of a
Beneficial Owner. The death of a Person who, during his lifetime, was entitled
to substantially all of the rights of a Beneficial Owner of an interest in the
Series E Notes will be deemed the death of the Beneficial Owner, regardless of
the recordation of such interest on the records of the Participant, if such
rights can be established to the satisfaction of the Participant and the
Company. Such interests shall be deemed to exist in typical cases of nominee
ownership, ownership under the Uniform Gifts to Minors Act or the Uniform
Transfers to Minors Act, community property or other similar joint ownership
arrangements, including individual retirement accounts or Keogh [H.R. 10] plans
maintained solely by or for the decedent or by or for the decedent and any
spouse, and trust and certain other arrangements where one Person has
substantially all of the rights of a Beneficial Owner during such Person's
lifetime.
In the case of any Redemption Request which is presented pursuant to
this Section 108 and which has not been fulfilled at the time the Company gives
notice of its election to redeem Series
E Notes pursuant to Section 107 hereof, such interest or portion thereof shall
not be subject to redemption pursuant to such Section 107, but shall remain
subject to redemption pursuant to this Section 108.
Subject to the provisions of the immediately preceding sentence, any
Redemption Request may be withdrawn by the Person(s) presenting the same upon
delivery of a written request for such withdrawal given by the Depositary to the
Trustee prior to payment of such Redemption Request.
During such time or times as, in accordance with Section 105 hereof,
the Series E Notes are not represented by a Global Security and are issued in
definitive form, all references in this Section 108 to Participants and the
Depositary, including the Depositary's governing rules, regulations and
procedures shall be deemed deleted, all determinations which under this Section
108 the Participants are required to make shall be made by the Company
(including, without limitation, determining whether the applicable decedent is
in fact the Beneficial Owner of the interest in the Series E Note to be redeemed
or is in fact deceased and whether the Representative is duly authorized to
request redemption on behalf of the applicable Beneficial Owner), all redemption
requests, to be effective, shall be delivered by the Representative to the
Trustee, with a copy to the Company, and shall be in the form of a Redemption
Request (with appropriate changes to reflect the fact that such Redemption
Request is being executed by a Representative) and, in addition to all documents
that are otherwise required to accompany a Redemption Request, shall be
accompanied by the Series E Note that is the subject of such request.
ARTICLE 2
Special Insurance Provisions
. 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 E Notes pursuant to Section 902 of the
Original Indenture.
. 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 E 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 E Notes or the
Trustee for the benefit of the Holders of the Series E Notes under the
Indenture, including, without limitation, (i) the right to accelerate the
principal of the Series E 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 E 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).
. (a) If the Trustee does not have sufficient funds for any payment of
principal or interest on the due date or if the Trustee has notice that any
Holder has been required to disgorge payments of principal or interest on the
Series E Notes to a trustee in bankruptcy or creditors or others pursuant to a
final judgment by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such Holder within the meaning of any
applicable bankruptcy laws, then the Trustee shall notify the Insurer or its
designee of such fact by telephone or telegraphic notice, confirmed in writing
by registered or certified mail.
(b) The Trustee is hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for Holders of the Series E Notes as
follows:
1. If and to the extent there is a deficiency in amounts
required to pay interest on the Series E Notes, the Trustee shall (a)
execute and deliver to the Insurance Paying Agent, in form satisfactory
to the Insurance Paying Agent, an instrument appointing the Insurer as
agent for such Holders in any legal proceeding related to the payment
of such interest and an assignment to the Insurer of the claims for
interest to which such deficiency relates and which are paid by the
Insurer, (b) receive as designee of the respective Holders (and not as
Trustee) in accordance with the tenor of the Policy payment from the
Insurance Paying Agent with respect to the claims for interest so
assigned, and (c) disburse the same to such respective Holders; and
2. If and to the extent of a deficiency in amounts required to
pay principal of the Series E Notes, the Trustee shall (a) execute and
deliver to the Insurance Paying Agent in form satisfactory to the
Insurance Paying Agent an instrument appointing the Insurer as agent
for such Holders in any legal proceeding relating to the payment of
such principal and an assignment to the Insurer of any of the Series E
Notes surrendered to the Insurance Paying Agent to the extent of the
principal amount thereof as has not previously been paid or for which
moneys are not held by the Trustee and available for such payment (but
such assignment shall be delivered only if payment from the Insurance
Paying Agent is received), (b) receive as designee of the respective
Holders (and not as Trustee) in accordance with the tenor of the Policy
payment therefor from the Insurance Paying Agent, and (c) disburse the
same to such Holders.
(c) Payments with respect to claims for interest on and principal of
Series E Notes disbursed by the Trustee from proceeds of the Policy shall not be
considered to discharge the obligation of the Company with respect to such
Series E Notes, and the Insurer shall become the owner of such unpaid Series E
Note and claims for the interest thereon in accordance with the tenor of the
assignment made to it under the provisions of this subsection or otherwise.
(d) Irrespective of whether any such assignment is executed and
delivered, the Company and the Trustee hereby agree for the benefit of the
Insurer that,
1. They recognize that to the extent the Insurer makes
payments, directly or indirectly (as by paying through the Trustee), on
account of principal of or interest on the Series E Notes, the Insurer
will be subrogated to the rights of such Holders to receive the amount
of such principal and interest from the Company, with interest thereon
as provided and solely from the sources stated in the Indenture and the
Series E Notes; and
2. They will accordingly pay to the Insurer the amount of such
principal and interest (including principal and interest recovered
under subparagraph (ii) of the first paragraph of the Policy, which
principal and interest shall be deemed past due and not to have been
paid), with interest thereon as provided in the Indenture and the
Series E Note, but only from the sources and in the manner provided
herein for the payment of principal of and interest on the Series E
Notes to Holders, and will otherwise treat the Insurer as the owner of
such rights to the extent of the amount of such principal and interest.
. In the event that the principal and/or interest due on the Series E
Notes shall be paid by the Insurer pursuant to the Policy, the Series E 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 E 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.
. To the extent that the Indenture confers upon or gives or grants to
the Insurer any right, remedy or claim under or by reason of the Indenture, the
Insurer is hereby explicitly recognized as being a third-party beneficiary
hereunder and may enforce any such right, remedy or claim conferred, given or
granted hereunder.
. Any notice that is required to be given to a Holder of the Series E
Note or to the Trustee pursuant to the Indenture shall also be provided to the
Insurer. All notices required to be given to the Insurer under the Indenture
shall be in writing and shall be sent by registered or certified mail addressed
to MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504,
Attention: Surveillance.
. 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.
. The Trustee, in determining whether any amendments or supplements to
the Indenture may be made without the consent of the Holders, or in determining
whether any action should be taken, shall consider the effect of such action on
the rights of the Holders as if the Policy were not in effect.
ARTICLE 3
Miscellaneous Provisions
. The recitals in this Fifth 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 E Notes and of
this Fifth Supplemental Indenture as fully and with like effect as if set forth
herein in full.
. As heretofore supplemented and as supplemented hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture,
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and this Fifth
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
. This Fifth 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.
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:
Patricia B. Southerland William B. Hutchins, III
Assistant Secretary Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: THE CHASE MANHATTAN BANK, as Trustee
By: By:
Senior Trust Officer Senior Trust Officer
EXHIBIT A
FORM OF SERIES E NOTE
NO. __ CUSIP NO. 010392DH8
ALABAMA POWER COMPANY
SERIES E 6.25% SENIOR NOTE
DUE SEPTEMBER 30, 2010
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Principal Amount: $_____________
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Regular Record Date: 15th calendar day prior to Interest Payment Date
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Original Issue Date: September 17, 1998
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Stated Maturity: September 30, 2010
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Interest Payment Dates: March 31, June 30, September 30 and December 31
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Interest Rate: 6.25% per annum
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Authorized Denomination: $1,000
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Initial Redemption Date: September 17, 2002
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Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_______________________________________________, or registered assigns, the
principal sum of _________ DOLLARS ($__________) 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 December 31, 1998,
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 E Notes shall be made upon surrender of the
Series E Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series E 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 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.
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 E 6.25%
Senior Notes due September 30, 2010 (the "Series E Notes") in the aggregate
principal amount of up to $100,000,000. 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 September 17, 2002
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 addition, at the option of any deceased Beneficial Owner's
Representative, interests in the Series E Notes are redeemable at 100% of their
principal amount, plus accrued interest, subject to certain limitations provided
in the Indenture.
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 $1,000 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
MBIA Insurance Corporation (the "Insurer") has issued a financial
guaranty insurance policy (the "Policy") containing the following provisions,
such policy being on file at The Chase Manhattan Bank, 450 West 33rd Street, New
York, New York 10001.
The Insurer, in consideration of the payment of the premium and subject
to the terms of the Policy, hereby unconditionally and irrevocably guarantees to
any owner, as hereinafter defined, of the following described obligations, the
full and complete payment required to be made by or on behalf of the Company to
The Chase Manhattan Bank or its successor (the "Paying Agent") of an amount
equal to (i) the principal of (at the stated maturity) and interest on, the
Obligations (as that term is defined below) as such payments shall become due
but shall not be so paid (except that in the event of any acceleration of the
due date of such principal by reason of mandatory or optional redemption or
acceleration resulting from default or otherwise, the payments guaranteed hereby
shall be made in such amounts and at such times as such payments of principal
would have been due had there not been any such acceleration); and (ii) the
reimbursement of any such payment which is subsequently recovered from any owner
pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes an avoidable preference to such owner within the meaning of
any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii)
of the preceding sentence shall be referred to herein collectively as the
"Insured Amounts." "Obligations" shall mean:
$100,000,000
ALABAMA POWER COMPANY
SERIES E 6.25% SENIOR NOTES
DUE SEPTEMBER 30, 2010
Upon receipt of telephonic notice, such notice subsequently confirmed
in writing by registered or certified mail, or upon receipt of written notice by
registered or certified mail, by the Insurer from the Paying Agent or any owner
of an Obligation the payment of an Insured Amount for which is then due, that
such required payment has not been made, the Insurer on the due date of such
payment or within one Business Day after receipt of notice of such nonpayment,
whichever is later, will make a deposit of funds, in an account with State
Street Bank and Trust Company, N.A., in New York, New York, or its successor,
sufficient for the payment of any such Insured Amounts which are then due. Upon
presentment and surrender of such Obligations or presentment of such other proof
of ownership of the Obligations, together with any appropriate instruments of
assignment to evidence the assignment of the Insured Amounts due on the
Obligations as are paid by the Insurer, and appropriate instruments to effect
the appointment of the Insurer as agent for such owners of the Obligations in
any legal proceeding related to payment of Insured Amounts on the Obligations,
such instrument being in a form satisfactory to State Street Bank and Trust
Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to such
owners or the Paying Agent payment of the Insured Amounts due on such
Obligations, less any amount held by the Paying Agent for the payment of such
Insured Amounts and legally available therefor. The Policy does not insure
against loss of any prepayment premium which may at any time be payable with
respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any
Obligation as indicated in the books maintained by the Paying Agent, the Company
or any designee of the Company for such purpose. The term owner shall not
include the Company or any party whose agreement with the Company constitutes
the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its
offices located at 113 King Street, Armonk, New York 10504 and such service of
process shall be valid and binding.
This policy is non-cancellable for any reason. The premium on this
policy is not refundable for any reason including the payment prior to maturity
of the Obligations.
The insurance provided by the Policy is not covered by the
Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law.
MBIA Insurance Corporation
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
EXHIBIT C
FORM OF REQUEST FOR REDEMPTION
Alabama Power Company
Series E 6.25% Senior Notes
due September 30, 2010
CUSIP No. 010392DH8
The undersigned Participant does hereby certify, pursuant to Section
108 of the Fifth Supplemental Indenture dated as of September 17, 1998 to the
Indenture dated as of December 1, 1997 between Alabama Power Company (the
"Company") and The Chase Manhattan Bank, as trustee (the "Trustee"), to the
Company and the Trustee that:
1. [Name of deceased Beneficial Owner] is deceased.
2. [Name of deceased Beneficial Owner] had a $___________
interest in the Company's Series E 6.25% Senior Notes due September 30, 2010
(the "Series E Senior Notes").
3. [Name of Representative] is [Beneficial Owner's personal
representative/ other person authorized to represent the estate of the
Beneficial Owner/surviving joint tenant/ surviving tenant by the entirety] of
[Name of deceased Beneficial Owner] and has delivered to the undersigned a
request for redemption in form satisfactory to the undersigned, requesting that
$_______ [$1,000 or an integral multiple thereof] be redeemed pursuant to said
Section 108. Such request and the documents accompanying such request, all of
which are satisfactory to the undersigned, are delivered herewith.
4. [Name of Participant] holds the interest in the Series E
Senior Notes with respect to which this Request for Redemption is being made on
behalf of [Name of deceased Beneficial Owner].
IN WITNESS WHEREOF, the undersigned has executed this Request for
Redemption as of _______________,
- ------.
[Name of Participant]
By:
Name:
Title:
- --------
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.