Exhibit 4.2
ALABAMA POWER COMPANY
TO
JPMORGAN CHASE BANK, N.A.
TRUSTEE
THIRTY-FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY 18, 2006
SERIES EE 5.75% SENIOR INSURED QUARTERLY NOTES
DUE JANUARY 15, 2036
TABLE OF CONTENTS(1)
Table of Contents
Page
ARTICLE 1 Series EE Senior Notes.............................................................4
SECTION 101. Establishment......................................................................4
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SECTION 102. Definitions........................................................................5
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SECTION 103. Payment of Principal and Interest..................................................5
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SECTION 104. Denominations......................................................................6
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SECTION 105. Global Securities..................................................................6
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SECTION 106. Transfer...........................................................................7
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SECTION 107. Redemption at the Company's Option.................................................7
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SECTION 108. Redemption upon Death of a Beneficial Owner........................................7
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ARTICLE 2 Special Insurance Provisions......................................................11
SECTION 201. Supplemental Indentures...........................................................11
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SECTION 202. Events of Default and Remedies....................................................11
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SECTION 203. Insurance Policy Payment Procedures...............................................11
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SECTION 204. Application of Term "Outstanding" to Series EE Notes..............................12
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SECTION 205. Insurer as Third Party Beneficiary................................................12
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SECTION 206. Concerning the Special Insurance Provisions.......................................13
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ARTICLE 3 Miscellaneous Provisions...........................................................................13
SECTION 301. Recitals by Company...............................................................13
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SECTION 302. Ratification and Incorporation of Original Indenture..............................13
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SECTION 303. Executed in Counterparts..........................................................13
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EXHIBIT A FORM OF SERIES EE 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-FIRST SUPPLEMENTAL INDENTURE is made as of the 18th day of
January, 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. (formerly known as The Chase Manhattan Bank), 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 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"), a Fourth Supplemental Indenture, dated as of August 19, 1998 (the
"Fourth Supplemental Indenture"), a Fifth Supplemental Indenture, dated as of
September 17, 1998 (the "Fifth Supplemental Indenture"), a Sixth Supplemental
Indenture, dated as of September 24, 1998 (the "Sixth Supplemental Indenture"),
a Seventh Supplemental Indenture, dated as of October 15, 1998 (the "Seventh
Supplemental Indenture"), an Eighth Supplemental Indenture, dated as of November
3, 1998 (the "Eighth Supplemental Indenture"), a Ninth Supplemental Indenture,
dated as of November 17, 1998 (the "Ninth Supplemental Indenture"), a Tenth
Supplemental Indenture, dated as of May 26, 1999 (the "Tenth Supplemental
Indenture"), an Eleventh Supplemental Indenture, dated as of August 19, 1999
(the "Eleventh Supplemental Indenture"), a Twelfth Supplemental Indenture, dated
as of September 30, 1999 (the "Twelfth Supplemental Indenture"), a Thirteenth
Supplemental Indenture, dated as of May 18, 2000 (the "Thirteenth Supplemental
Indenture"), a Fourteenth Supplemental Indenture, dated as of August 29, 2001
(the "Fourteenth Supplemental Indenture"), a Fifteenth Supplemental Indenture,
dated as of August 29, 2001 (the "Fifteenth Supplemental Indenture"), a
Sixteenth Supplemental Indenture, dated as of June 28, 2002 (the "Sixteenth
Supplemental Indenture"), a Seventeenth Supplemental Indenture, dated as of
October 22, 2002 (the "Seventeenth Supplemental Indenture"), an Eighteenth
Supplemental Indenture, dated as of November 26, 2002 (the "Eighteenth
Supplemental Indenture"), a Nineteenth Supplemental Indenture, dated as of
December 12, 2002 (the "Nineteenth Supplemental Indenture"), a Twentieth
Supplemental Indenture, dated as of February 19, 2003 (the "Twentieth
Supplemental Indenture"), a Twenty-First Supplemental Indenture, dated as of
February 19, 2003 (the "Twenty-First Supplemental Indenture"), a Twenty-Second
Supplemental Indenture, dated as of March 14, 2003 (the "Twenty-Second
Supplemental Indenture"), a Twenty-Third Supplemental Indenture, dated as of
April 23, 2003 (the "Twenty-Third Supplemental Indenture"), a Twenty-Fourth
Supplemental Indenture, dated as of May 7, 2003 (the "Twenty-Fourth Supplemental
Indenture"), a Twenty-Fifth Supplemental Indenture, dated as of November 20,
2003 (the "Twenty-Fifth Supplemental Indenture"), a Twenty-Sixth Supplemental
Indenture, dated as of February 17, 2004 (the "Twenty-Sixth Supplemental
Indenture"), a Twenty-Seventh Supplemental Indenture, dated as of April 21, 2004
(the "Twenty-Seventh Supplemental Indenture"), a Twenty-Eighth Supplemental
Indenture, dated as of August 25, 2004 (the "Twenty-Eighth Supplemental
Indenture), a Twenty-Ninth Supplemental Indenture, dated as of November 16, 2004
(the "Twenty-Ninth Supplemental Indenture") and a Thirtieth Supplemental
Indenture, dated as of March 16, 2005 (the "Thirtieth Supplemental Indenture");
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as heretofore supplemented and as further
supplemented by this Thirty-First 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-First 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 EE 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
EE 5.75% Senior Insured Quarterly Notes due January 15, 2036 (the "Series EE
Notes").
There are to be authenticated and delivered $100,000,000 aggregate
principal amount of Series EE Notes, and such principal amount of the Series EE
Notes may be increased from time to time pursuant to Section 301 of the Original
Indenture. All Series EE 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 EE Notes. Any such additional Series EE 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 EE Notes), as those initially issued.
No Series EE 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 EE Notes shall be issued in
definitive fully registered form.
The Series EE 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 EE Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
EE Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series EE 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 EE 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.
"Beneficial Owner" has the meaning set forth in Section 108 hereof.
"Initial Period" has the meaning set forth in Section 108 hereof.
"Insurer" means XL Capital Assurance Inc., a New York stock insurance
corporation.
"Interest Payment Dates" means January 15, April 15, July 15 and
October 15 of each year, commencing April 15, 2006.
"Original Issue Date" means January 18, 2006.
"Participants" has the meaning set forth in Section 108 hereof.
"Policy" means the financial guaranty insurance policy issued by the
Insurer with respect to payments due for principal of and interest on the Series
EE Notes as provided in such policy.
"Redemption Request" has the meaning set forth in Section 108 hereof.
"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).
"Representatives" has the meaning set forth in Section 108 hereof.
"Subsequent Period" has the meaning set forth in Section 108 hereof.
"Stated Maturity" means January 15, 2036.
SECTION 103. Payment of Principal and Interest. The principal of the Series EE
Notes shall be due at Stated Maturity (unless earlier redeemed). The unpaid
principal amount of the Series EE Notes shall bear interest at the rate of 5.75%
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 EE
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 EE
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 EE 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 EE 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 EE Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series EE 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 EE 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 EE Notes shall be made upon surrender of the
Series EE Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series EE Notes shall be paid in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of interest (including interest on
any Interest Payment Date) will be made, subject to such surrender where
applicable, at the option of the Company, (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or (ii) by wire transfer or other electronic transfer at such place and
to such account at a banking institution in the United States as may be
designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
SECTION 104. Denominations. The Series EE Notes may be issued in
denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series EE 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 EE Notes represented by the Global
Security will not be exchangeable for, and will not otherwise be issuable as,
Series EE 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 EE 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 EE 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 EE Notes. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Series EE 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 EE 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 EE 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 EE 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 EE Notes theretofore selected
for redemption in whole or in part, except the unredeemed portion of any Series
EE Notes redeemed in part.
SECTION 107. Redemption at the Company's Option. The Series EE 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 January 15,
2011, upon not less than 30 nor more than 60 days' notice, at a redemption price
(the "Redemption Price") equal to 100% of the principal amount to be redeemed
plus any accrued and unpaid interest thereon to the Redemption Date.
In the event of redemption of the Series EE Notes in part only, a new
Series EE Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
Any redemption of less than all of the Series EE Notes shall, with
respect to the principal thereof, be divisible by $1,000.
SECTION 108. Redemption upon Death of a Beneficial Owner. Unless the Series EE
Notes have been declared due and payable prior to the Stated Maturity by reason
of an Event of Default, or have been previously redeemed or otherwise repaid,
the Representative (as hereinafter defined) of a deceased Beneficial Owner (as
hereinafter defined) of the Series EE Notes has the right, on or after January
15, 2011, to request redemption prior to the Stated Maturity of all or part of
his or her interest in such Series EE 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 January 15, 2011 through and including January
15, 2012 (the "Initial Period"), and, during any twelve-month period that ends
on and includes each January 15 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 EE Notes which exceeds $25,000
aggregate principal amount or (ii) interests in the Series EE Notes exceeding
$2,000,000 in aggregate principal amount. A request for redemption may be
initiated by the Representative of a deceased Beneficial Owner at any time, on
or after January 15, 2011, and in any principal amount.
The Company may, at its option, redeem interests of any deceased
Beneficial Owner in the Series EE Notes in the Initial Period or any Subsequent
Period in excess of the $25,000 limitation. Any such redemption by the Company,
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 aggregate
limitation for the Series EE Notes for such Initial Period and for such
Subsequent Period or for any succeeding Subsequent Period. The Company may, at
its option, redeem interests of deceased Beneficial Owners in the Series EE
Notes in the Initial Period or in any Subsequent Period in an aggregate
principal amount exceeding the $2,000,000 aggregate limitation. Any such
redemption by the Company, to the extent it exceeds the $2,000,000 aggregate
limitation, shall not reduce the $2,000,000 aggregate limitation for any
succeeding Subsequent Period. On any determination by the Company to redeem
Series EE Notes in excess of the $25,000 limitation or the $2,000,000 aggregate
limitation, such Series EE Notes shall be redeemed in the order of the receipt
of Redemption Requests (as hereinafter defined) by the Trustee.
A request for redemption of an interest in the Series EE 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 or the trustee of a trust (each, a
"Representative"). A Representative may initiate a request for redemption at any
time and in any principal amount, provided that the principal amount is in
integral multiples of $1,000. The Representative shall deliver its request to
the Participant (as hereinafter defined) 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, any waivers, notices or
certificates as may be required under applicable state or federal law and any
other evidence of the right to such redemption as the Participant requires.
Subject to the rules and arrangements applicable to the Depositary, the
Participant will then deliver to the Depositary a request for redemption
substantially in the form attached to the Series EE Notes as Annex A (a
"Redemption Request"). The Depositary will, upon receipt of a Redemption
Request, forward the same to the Trustee. The Trustee is required to maintain
records with respect to Redemption Requests received by it, including the date
of receipt, the name of the Participant filing the Redemption Request and the
status of each Redemption Request with respect to the $25,000 limitation and the
$2,000,000 aggregate limitation. The Trustee will promptly file with the Company
each Redemption Request it receives, together with the information regarding the
eligibility of the Redemption Request with respect to the $25,000 limitation and
the $2,000,000 aggregate limitation. The Company, the Depositary and 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 (a) for reviewing any documents submitted to the Participant by
the Representative or (b) for determining whether the applicable decedent is in
fact the Beneficial Owner of the interest in the Series EE Notes 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.
Subject to the $25,000 limitation and the $2,000,000 aggregate
limitation, on or after January 15, 2011, the Company will, after the death of
any Beneficial Owner, redeem the interest of such Beneficial Owner in the Series
EE Notes on the next Interest Payment Date occurring not less than 30 days
following receipt by the Company of a Redemption Request from the Trustee. If
Redemption Requests exceed the aggregate principal amount of interests in Series
EE Notes required to be redeemed during the Initial Period or 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. The Company may,
at any time, notify the Trustee that it will redeem on the next Interest Payment
Date not less than 30 days thereafter, all or any lesser amount of Series EE
Notes for which Redemption Requests have been received but which are not then
eligible for redemption by reason of the $25,000 limitation or the $2,000,000
aggregate limitation. Any Series EE Notes so redeemed shall be redeemed in the
order of receipt of Redemption Requests by the Trustee.
The price to be paid by the Company for the Series EE Notes to be
redeemed pursuant to a Redemption Request is 100% of the principal amount
thereof plus accrued and unpaid interest to the date of payment. Subject to
arrangements with the Depositary, payment for interests in the Series EE Notes
to be redeemed shall be made to the Depositary upon presentation of the Series
EE 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 EE 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 limitation or the $2,000,000 aggregate limitation for the Initial
Period or any Subsequent Period.
For purposes of this section, a "Beneficial Owner" means the person who
has the right to sell, transfer or otherwise dispose of an interest in a Series
EE 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 EE 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").
For purposes of this section, an interest in a Series EE Note held in
tenancy by the entirety, by 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 or her lifetime, was
entitled to substantially all of the rights of a Beneficial Owner of an interest
in the Series EE 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 a Redemption Request that is presented on behalf of a
deceased Beneficial Owner and that has not been fulfilled at the time the
Company gives notice of its election to redeem the Series EE Notes in part
pursuant to Section 107 hereof, the Series EE Notes that are the subject of such
pending Redemption Request shall be redeemed pursuant to Section 107 hereof
prior to any other Series EE Notes.
Any Redemption Request may be withdrawn by the person(s) presenting
such request upon delivery of a written request for such withdrawal given by the
Participant on behalf of such person(s) to the Depositary and by the Depositary
to the Trustee not less than 60 days prior to the Interest Payment Date on which
such Series EE Notes are eligible for redemption.
The Company may, at its option, purchase any Series EE Notes for which
Redemption Requests have been received in lieu of redeeming such Series EE
Notes. Any Series EE Notes so purchased by the Company shall either be reoffered
for sale and sold within 180 days after the date of purchase or presented to the
Trustee for cancellation.
During such time or times as the Series EE Notes are not represented by
a Global Security and are issued in definitive form, all references to
Participants and the Depositary, including the Depositary's governing rules,
regulations and procedures, shall be deemed deleted, all determinations which
under this Section 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 EE Notes
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 mutually agreed to by the
Trustee and the Company to reflect the fact that such Redemption Request is
being executed by a Representative (including provision for signature
guarantees)) and, in addition to all documents that are otherwise required to
accompany a Redemption Request, shall be accompanied by the Series EE Note that
is the subject of such request and, if applicable, a properly executed
assignment or endorsement. If the record interest in the Series EE Note is held
by a nominee of the deceased Beneficial Owner, a certificate or letter from such
nominee attesting to the deceased's ownership of a beneficial interest in the
Series EE Note must also be delivered.
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 EE Notes
pursuant to Section 902 of 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 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 EE
Notes or the Trustee for the benefit of the Holders of the Series EE Notes under
the Indenture, including, without limitation, (i) the right to accelerate the
principal of the Series EE 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 EE Notes, the obligation of the Trustee to comply
with any such direction to be subject to compliance with the conditions set
forth in Sections 512 and 603(e) of the Original Indenture (as if references in
those Sections to Holders were references to the Insurer) and the protections
provided to the Trustee by Section 601(c)(3) of the Original Indenture shall be
applicable with respect to any direction from the Insurer given pursuant hereto
(as if references in said Section to Holders were references to the Insurer).
SECTION 203. Insurance Policy Payment Procedures. (a) The Insurer will make
payments of principal or interest due on the Series EE Notes in accordance with
the Policy on or before the first Business Day next following the date on which
the Insurer shall have received notice of Nonpayment (as defined in the Policy)
from the Trustee.
(b) In the event of Nonpayment and notification thereof to the Insurer, the
Trustee shall make available to the Insurer the books kept by the Trustee for
the registration and for the registration of transfer of Series EE Notes as
provided in the Indenture.
(c) The Trustee shall, at the time it provides notice to the Insurer pursuant to
(a) above, notify Holders of Series EE Notes entitled to receive the payment of
principal or interest thereon from the Insurer (i) as to the fact of such
entitlement, (ii) that the Insurer will remit to them all or a part of the
interest payments next coming due upon proof of Holder entitlement to interest
payments and delivery to the Insurer, in form satisfactory to the Insurer, of an
appropriate assignment of the Holder's right to payment, (iii) that should they
be entitled to receive full payment of principal from the Insurer, they must
surrender their Series EE Notes (along with an appropriate instrument of
assignment in form satisfactory to the Insurer to permit ownership of such
Series EE Notes to be registered in the name of the Insurer) for payment to the
Insurer, and not the Trustee or any paying agent, and (iv) that should they be
entitled to receive partial payment of principal from the Insurer, they must
surrender their Series EE Notes for payment thereon first to the Trustee, who
shall note on such Series EE Notes the portion of the principal paid by the
Trustee, and then, along with an appropriate instrument of assignment in form
satisfactory to the Insurer, to the Insurer, which will then pay the unpaid
portion of principal.
(d) In the event that the Trustee has notice that any payment of principal of or
interest on a Series EE Note which has become due for payment (under the terms
of the Policy) and which is made to a Holder by or on behalf of the Company has
been deemed a preferential transfer and theretofore recovered from its Holder
pursuant to the United States Bankruptcy Code by a trustee in bankruptcy in
accordance with a final, nonappealable order of a court having competent
jurisdiction, the Trustee shall, at the time the Insurer is notified pursuant to
(a) above, notify all Holders of the Series EE Notes that in the event that any
Holder's payment is so recovered, such Holder will be entitled to payment from
the Insurer to the extent of such recovery if sufficient funds are not otherwise
available, and the Trustee shall furnish to the Insurer its records evidencing
the payments of principal of and interest on the Series EE Notes which have been
made by the Trustee and subsequently recovered from Holders and the dates on
which such payments were made.
(e) In addition to those rights granted the Insurer under the Indenture, the
Insurer shall, to the extent it makes payment of principal of or interest on
Series EE Notes, become subrogated to the rights of the recipients of such
payments in accordance with the terms of the Policy, and to evidence such
subrogation (i) in the case of subrogation as to claims for past due interest,
the Trustee shall note the Insurer's rights as subrogee on the registration
books of the Company maintained by the Trustee upon receipt from the Insurer of
proof of the payment of interest thereon to the Holders of the Series EE Notes,
and (ii) in the case of subrogation as to claims for past due principal, the
Trustee shall note the Insurer's rights as subrogee on the registration books of
the Company maintained by the Trustee upon surrender of the Series EE Notes by
the Holders thereof together with proof of the payment of principal thereof.
SECTION 204. Application of Term "Outstanding" to Series EE Notes. In the event
that the principal and/or interest due on the Series EE Notes shall be paid by
the Insurer pursuant to the Policy, the Series EE Notes shall remain Outstanding
for all purposes of the Indenture, not be considered defeased or otherwise
satisfied and not be considered paid by the Company, and the assignment and
pledge of the Indenture and all covenants, agreements and other obligations of
the Company to the Holders of the Series EE Notes shall continue to exist and
shall run to the benefit of the Insurer, and the Insurer shall be subrogated to
the rights of such Holders to the extent of each such payment.
SECTION 205. Insurer as Third Party Beneficiary. To the extent that the
Indenture confers upon or gives or grants to the Insurer any right, remedy or
claim under or by reason of the Indenture, the Insurer is hereby explicitly
recognized as being a third-party beneficiary hereunder and may enforce any such
right, remedy or claim conferred, given or granted hereunder.
SECTION 206. Concerning the Special Insurance Provisions. The provisions of this
Article 2 shall apply notwithstanding anything in the Indenture to the contrary,
but only so long as the Policy shall be in full force and effect and the Insurer
is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Thirty-First 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 EE Notes and of this Thirty-First 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, the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth
Supplemental Indenture, the Sixth Supplemental Indenture, the Seventh
Supplemental Indenture, the Eighth Supplemental Indenture, the Ninth
Supplemental Indenture, the Tenth Supplemental Indenture, the Eleventh
Supplemental Indenture, the Twelfth Supplemental Indenture, the Thirteenth
Supplemental Indenture, the Fourteenth Supplemental Indenture, the Fifteenth
Supplemental Indenture, the Sixteenth Supplemental Indenture, the Seventeenth
Supplemental Indenture, the Eighteenth Supplemental Indenture, the Nineteenth
Supplemental Indenture, the Twentieth Supplemental Indenture, the Twenty-First
Supplemental Indenture, the Twenty-Second Supplemental Indenture, the
Twenty-Third Supplemental Indenture, the Twenty-Fourth Supplemental Indenture,
the Twenty-Fifth Supplemental Indenture, the Twenty-Sixth Supplemental
Indenture, the Twenty-Seventh Supplemental Indenture, the Twenty-Eighth
Supplemental Indenture, the Twenty-Ninth Supplemental Indenture, the Thirtieth
Supplemental Indenture and this Thirty-First Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Thirty-First 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: By:
------------------------ -----------------------
Assistant Secretary Art P. Beattie
Executive Vice President,
Chief Financial Officer and
Treasurer
ATTEST: JPMORGAN CHASE BANK, N.A.,
as Trustee
By: By:
------------------------------------- ---------------------------------
Trust Officer Carol Ng
Vice President
EXHIBIT A
FORM OF SERIES EE NOTE
NO. __ CUSIP NO. 010392 EQ 7
ALABAMA POWER COMPANY
SERIES EE 5.75% SENIOR INSURED QUARTERLY NOTE
DUE JANUARY 15, 2036
Principal Amount: $__________________
Regular Record Date: 15th calendar day prior to Interest Payment
Date (whether or not a
Business Day)
Original Issue Date: January 18, 2006
Stated Maturity: January 15, 2036
Interest Payment Dates: January 15, April 15, July 15 and October 15
Interest Rate: 5.75%
Authorized Denomination: $1,000 or any integral multiple thereof
Alabama Power Company, an Alabama corporation (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
___________________________________________, or registered assigns, the
principal sum of ____________________________________________ DOLLARS
($______________) 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 April 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 EE Notes shall be made upon surrender of the
Series EE Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series EE 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.
XL Capital Assurance, Inc. (the "Insurer"), New York, New York, has
delivered its financial guaranty insurance policy (the "Policy") with respect to
the scheduled payments due of principal of and interest on this Note to the
principal Corporate Trust Office of the Trustee. Said policy is on file and
available for inspection at the principal Corporate Trust Office of the Trustee
and a copy thereof may be obtained from the Insurer or the Trustee.
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 EE 5.75% Senior
Insured Quarterly Notes due January 15, 2036 (the "Series EE 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 Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after January 15, 2011
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
any accrued and unpaid interest to the Redemption Date.
Subject to the conditions and restrictions contained in the Indenture,
this Note may be redeemed 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, at the request of the Representative of the deceased
beneficial owner of this Note pursuant to a Redemption Request attached hereto
as Annex A.
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 EE 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 $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.
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.
ANNEX A
FORM OF REDEMPTION REQUEST
Alabama Power Company
Series EE 5.75% Senior Insured Quarterly Notes
due January 15, 2036
(the "Series EE Notes")
CUSIP NO. 010392 EQ 7
The undersigned, ____________________ (the "Participant"), does hereby
certify, pursuant to the provisions of that certain Senior Note Indenture, dated
as of December 1, 1997, as supplemented by the Thirty-First Supplemental
Indenture, dated as of January 18, 2006 (the "Indenture") made by and between
Alabama Power Company (the "Company") and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as Trustee (the "Trustee"), to The
Depository Trust Company (the "Depositary"), 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 above referenced Series EE 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/trustee of a
trust] of [Name of deceased Beneficial Owner] and has delivered to the
undersigned a request for redemption in form satisfactory to the undersigned,
requesting that $__________ principal amount of said Series EE Notes be redeemed
pursuant to said Indenture. The documents accompanying such request, all of
which are in proper form, are in all respects satisfactory to the undersigned
and [Name of Representative] is entitled to have the Series EE Notes to which
this Request relates redeemed.
4. The Participant holds the interest in the Series EE Notes with
respect to which this Request for Redemption is being made on behalf of [Name of
deceased Beneficial Owner].
5. The Participant hereby certifies that it will indemnify and hold
harmless the Depositary, the Trustee and the Company (including their respective
officers, directors, agents, attorneys and employees), against all damages,
loss, cost, expense (including reasonable attorneys' and accountants' fees),
obligations, claims or liability (collectively, the "Damages") incurred by the
indemnified party or parties as a result of or in connection with the redemption
of Series EE Notes to which this Request relates. The Participant will, at the
request of the Company, forward to the Company, a copy of the documents
submitted by [Name of Representative] in support of the request for redemption.
IN WITNESS WHEREOF, the undersigned has executed this Redemption Request
as of ____________, _____.
[PARTICIPANT NAME]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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