Exhibit 1
$300,000,000
Series 2008A 6.125% Senior Notes
due May 15, 2038
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
May 8, 2008
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters named on Schedule I hereto
Ladies and Gentlemen:
Alabama Power Company, an Alabama corporation (the "Company"), confirms its
agreement (the "Agreement") with you and the other Underwriters named in
Schedule I hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 11
hereof) for whom you are acting as representatives (in such capacity you shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the Company and the purchase by the Underwriters, acting severally and not
jointly, of $300,000,000 aggregate principal amount of the Series 2008A 6.125%
Senior Notes due May 15, 2038 (the "Senior Notes") as set forth in Schedule I
hereto.
The Company understands that the Underwriters propose to make a public
offering of the Senior Notes as soon as the Representatives deem advisable after
this Agreement has been executed and delivered. The Senior Notes will be issued
pursuant to an indenture, dated as of December 1, 1997 (the "Base Indenture"),
by and between the Company and The Bank of New York (as successor to JPMorgan
Chase Bank, N.A. (formerly known as The Chase Manhattan Bank)), as trustee (the
"Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a forty-first supplemental indenture, dated as of
May 14, 2008, to the Base Indenture relating to the Senior Notes (the
"Supplemental Indenture" and, together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Underwriters as follows:
(a) A registration statement on Form S-3 (File No. 333-148513) in respect
of the Senior Notes and certain other securities has been prepared and
filed in accordance with the provisions of the Securities Act of 1933, as
amended (the "1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, became effective upon filing with the Commission in such form
(except that copies of the registration statement and any post-effective
amendment delivered to the Underwriters need not include exhibits but shall
include all documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been issued
and no proceeding for that purpose or pursuant to Section 8A of the 1933
Act against the Company or related to the offering has been initiated or,
to the best knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement as used with respect to the
Senior Notes, including the information deemed a part thereof pursuant to
Rule 430B(f)(1) under the 1933 Act on the date of such registration
statement's effectiveness for purposes of Section 11 of the 1933 Act, as
such Section applies to the Company and the Underwriters for the Senior
Notes pursuant to Rule 430B(f)(2) under the 1933 Act (the "Effective
Date"), including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the Effective Date,
being hereinafter called the "Registration Statement"; the base prospectus
relating to the Senior Notes and certain other securities of the Company,
in the form in which it has most recently been filed with the Commission on
or prior to the date of this Agreement relating to the Senior Notes, being
hereinafter called the "Basic Prospectus"; the Basic Prospectus as amended
and supplemented by a preliminary prospectus supplement dated May 8, 2008
relating to the Senior Notes which has been filed with the Commission
pursuant to Rule 424(b) under the 1933 Act, as it may be further amended
and supplemented immediately prior to the Applicable Time (as defined
below) is hereinafter called the "Pricing Prospectus," the Basic Prospectus
as amended or supplemented in final form, including by a prospectus
supplement relating to the Senior Notes in the form in which it is filed
with the Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 4(e) hereof is hereinafter called the "Final
Supplemented Prospectus"; any reference herein to any Preliminary
Prospectus, the Basic Prospectus, the Pricing Prospectus or the Final
Supplemented Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the date of such Preliminary Prospectus, Basic
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Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus, Basic
Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary Prospectus,
Basic Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement.
For purposes of this Agreement, the "Applicable Time" is 2:15 p.m. (New
York Time) on the date of this Agreement; the documents listed in Schedule III,
taken together and attached hereto, are collectively referred to as the "Pricing
Disclosure Package."
(b) The documents incorporated by reference in the Registration Statement
or the Pricing Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of the
1934 Act and the rules and regulations of the Commission thereunder, and as
of such time of filing, when read together with the Pricing Prospectus and
any Permitted Free Writing Prospectus (as defined in Section 3(a) hereof),
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Final Supplemented Prospectus or any
further amendment or supplement thereto, when such documents are filed with
the Commission, will comply in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the Commission
thereunder and, when read together with the Final Supplemented Prospectus
as it otherwise may be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to the Underwriters
with respect to: (A) any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use in the Pricing
Prospectus, any Permitted Free Writing Prospectus and the Final
Supplemented Prospectus; or (B) any information set forth in the Pricing
Prospectus or the Final Supplemented Prospectus under the caption
"Description of the Series 2008A Senior Notes - Book-Entry Only Issuance -
The Depository Trust Company."
(c) The Registration Statement and the Final Supplemented Prospectus
comply, and any further amendments or supplements thereto, when any such
amendments become effective or supplements are filed with the Commission,
as the case may be, will comply, in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act (as
hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and the Registration Statement, the Pricing
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Disclosure Package and the Final Supplemented Prospectus do not and will
not, (i) as of the Effective Date as to the Registration Statement and any
amendment thereto, (ii) as of the Applicable Time as to the Pricing
Disclosure Package and (iii) as of the date of the Final Supplemented
Prospectus as to the Final Supplemented Prospectus or as of the date when
any supplement is filed as to the Final Supplemented Prospectus as further
supplemented or as of the Closing Date as to the Final Supplemented
Prospectus or the Final Supplemented Prospectus as it may be further
supplemented as provided above, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the case of the Registration Statement
and any amendment thereto, and, in the light of the circumstances under
which they were made, not misleading in the case of the Pricing Disclosure
Package and the Final Supplemented Prospectus as further supplemented;
except that the Company makes no warranties or representations with respect
to (A) that part of the Registration Statement which shall constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended (the "1939 Act"), (B) any statements or omissions made in a
Permitted Free Writing Prospectus, the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use therein; or (C)
any information set forth in the Pricing Prospectus or the Final
Supplemented Prospectus under the caption "Description of the Series 2008A
Senior Notes - Book-Entry-Only Issuance - The Depository Trust Company."
(d) Each Permitted Free Writing Prospectus listed on Schedule III hereto
does not include anything that conflicts with the information contained in
the Registration Statement, the Pricing Prospectus or the Final
Supplemented Prospectus and each such Permitted Free Writing Prospectus, as
supplemented by and taken together with the Pricing Disclosure Package as
of the Applicable Time, did not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to any statement or
omissions made in a Permitted Free Writing Prospectus in reliance upon and
in conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use therein.
(e) With respect to the Registration Statement, (i) the Registration
Statement is an "automatic shelf registration statement" (as defined in
Rule 405 under the 1933 Act), (ii) the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting
to the use of the automatic shelf registration statement and (iii) the
conditions for use of Form S-3, as set forth in the General Instructions
thereof, have been satisfied.
(f) (A) At the time of filing of the Registration Statement, (B) at the
time of the most recent amendment to the Registration Statement for the
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purposes of complying with Section 10(a)(3) of the 1933 Act (whether such
amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus) and
(C) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the 1933 Act) made any
offer relating to the Senior Notes in reliance on the exemption of Rule 163
under the 1933 Act, the Company was a "well-known seasoned issuer" (as
defined in Rule 405 under the 1933 Act).
At the determination date for purposes of the Senior Notes within the
meaning of Rule 164(h) under the 1933 Act, the Company was not an
"ineligible issuer" as defined in Rule 405 under the 1933 Act.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, except as otherwise
stated therein, there has been no material adverse change in the business,
properties or financial condition of the Company, whether or not arising in
the ordinary course of business.
(h) The Company is a corporation duly organized and existing under the laws
of the State of Alabama and has due corporate authority to carry on the
public utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell
the Senior Notes to the Underwriters.
(i) This Agreement has been duly authorized, executed and delivered by the
Company.
(j) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will, on the
Closing Date, constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors' rights
generally or (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all material
respects to all statements relating thereto contained in the Pricing
Disclosure Package and the Final Supplemented Prospectus; and, on the
Closing Date, the Indenture will have been duly qualified under the 1939
Act.
(k) The issuance and delivery of the Senior Notes have been duly authorized
by the Company and, on the Closing Date, the Senior Notes will have been
duly executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described in
this Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by the
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Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Pricing Disclosure
Package and the Final Supplemented Prospectus.
(l) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by the
Company of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder shall have
been duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter or
bylaws of the Company, and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may
be bound or to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(m) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the transactions by
the Company contemplated in this Agreement, except (A) such as may be
required under the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Federal Power Act; (C) the qualification
of the Indenture under the 1939 Act; (D) the approval of the Alabama Public
Service Commission (the "Alabama Commission"); and (E) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(n) The financial statements incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus,
together with the related schedules and notes, present fairly, in all
material respects, the financial position, results of operations and cash
flows of the Company as of and for the dates indicated; said financial
statements have been prepared in conformity with accounting principles
generally accepted in the United States ("GAAP") applied on a consistent
basis (except that the unaudited financial statements incorporated by
reference in the Registration Statement, the Pricing Prospectus and the
Final Supplemented Prospectus may be subject to normal year-end
adjustments) throughout the periods involved and necessarily include
amounts that are based on the best estimates and judgments of management.
The selected financial data and the summary financial information included
in the Pricing Prospectus and the Final Supplemented Prospectus present
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fairly the information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements
incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, the
principal amount of the Senior Notes set forth in Schedule I to this
Agreement opposite the name of such Underwriter (plus any additional amount
of the Senior Notes that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 11 hereof), at a price equal to
98.866% of the principal amount thereof.
(b) Payment of the purchase price and delivery of certificates for the
Senior Notes shall be made at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M.,
New York Time, on May 14, 2008 (unless postponed in accordance with the
provisions of Section 11) or such other time, place or date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall
be made to the Company by wire transfer in federal funds at the Closing
Date against delivery of the Senior Notes to ▇▇▇▇▇▇ Brothers Inc. on behalf
of the Underwriters. It is understood that each Underwriter has authorized
▇▇▇▇▇▇ Brothers Inc., for each Underwriter's account, to accept delivery
of, receipt for, and make payment of, the principal amount of the Senior
Notes which each Underwriter has agreed to purchase. ▇▇▇▇▇▇ Brothers Inc.,
individually and not as a representative of the Underwriters, may (but
shall not be obligated to) make payment of the principal amount of the
Senior Notes to be purchased by any Underwriter whose payment has not been
received by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York or its designee, and the Representatives shall
accept such delivery.
The certificate(s) for the Senior Notes will be made available for
examination by the Representatives not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. FREE WRITING PROSPECTUSES.
(a) The Company represents and agrees that, without the prior consent of
the Representatives, it has not made and will not make any offer relating
to the Senior Notes that would constitute a "free writing prospectus" as
defined in Rule 405 under the 1933 Act, other than a Permitted Free Writing
7
Prospectus; each Underwriter, severally and not jointly, represents and
agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to
the Senior Notes that would constitute a "free writing prospectus" as
defined in Rule 405 under the 1933 Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to be filed by
the Company pursuant to Rule 433 or one or more free writing prospectuses
through customary Bloomberg distribution that do not contain substantive
changes from or additions to the information contained in Schedule II
hereto; any such free writing prospectus (which shall include the pricing
term sheet discussed in Section 3(b) hereof), the use of which has been
consented to by the Company and the Representatives, is listed on Schedule
III and herein called a "Permitted Free Writing Prospectus."
(b) The Company agrees to prepare a pricing term sheet, substantially in
the form of Schedule II hereto and approved by the Representatives, and to
file such pricing term sheet pursuant to Rule 433(d) under the 1933 Act
within the time period prescribed by such Rule.
(c) The Company and the Representatives have complied and will comply with
the requirements of Rule 433 under the 1933 Act applicable to any free
writing prospectus, including timely Commission filing where required and
legending.
(d) The Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event occurred or occurs as a result
of which such Permitted Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus or the
Final Supplemented Prospectus or include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and
furnish without charge to each Underwriter a free writing prospectus or
other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to
any statements or omissions in a Permitted Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives, expressly for
use therein.
(e) The Company agrees that if there occurs an event or development as a
result of which the Pricing Disclosure Package would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will notify the Representatives so
that any use of the Pricing Disclosure Package may cease until it is
amended or supplemented.
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SECTION 4. COVENANTS OF THE COMPANY. The Company covenants with the Underwriters
as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representatives
orally of the issuance of any stop order under the 1933 Act with respect to
the Registration Statement, or the institution of any proceedings for that
purpose or pursuant to Section 8A of the 1933 Act against the Company or
related to the offering, of which the Company shall have received notice,
and will use its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if issued. The Company will
deliver to the Representatives sufficient conformed copies of the
Registration Statement, the Basic Prospectus, the Pricing Prospectus and
the Final Supplemented Prospectus and of all supplements and amendments
thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Basic
Prospectus, the Pricing Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with written or electronic
copies of each amendment and supplement to the Final Supplemented
Prospectus relating to the offering of the Senior Notes in such quantities
as the Underwriters may from time to time reasonably request. If, during
the period (not exceeding nine months) when the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the 1933
Act) shall be required by law in connection with the sale of any Senior
Notes by an Underwriter, any event relating to or affecting the Company, or
of which the Company shall be advised in writing by the Representatives,
shall occur, which in the opinion of the Company or of Underwriters'
counsel should be set forth in a supplement to or an amendment of the Final
Supplemented Prospectus, as the case may be, in order to make the Final
Supplemented Prospectus not misleading in the light of the circumstances
when it (or in lieu thereof, the notice referred to in Rule 173(a) under
the 1933 Act) is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by
reference in the Final Supplemented Prospectus in order to comply with the
1933 Act or the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Senior Notes and
(ii) at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Final Supplemented Prospectus which
will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
9
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances when the Final
Supplemented Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is required
to deliver a prospectus in connection with the sale of any Senior Notes
after the expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of the Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Final Supplemented Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second sentence of this subsection,
the Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing copies thereof
prior to such filing to the Representatives and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the United
States as the Representatives may designate; provided, however, that the
Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a consent to
service of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the Company to
be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later than
the first day of the Company's next fiscal quarter following the "effective
date" (as defined in Rule 158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, the
Company will file the Final Supplemented Prospectus, in a form approved by
the Representatives, such approval not to be unreasonably withheld, with
the Commission and will advise the Representatives of such filing and will
confirm such advice in writing. Furthermore, the Company will make any
other required filings pursuant to Rule 433(d)(1) of the 1933 Act within
the time required by such Rule.
(f) During a period of 15 days from the date of this Agreement, the Company
will not, without the Representatives' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Senior Notes or any security convertible into or
exchangeable into or exercisable for the Senior Notes or any debt
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securities substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement). The Representatives agree that
commercial paper or other debt securities with scheduled maturities of less
than one year are not subject to this Section 4(f).
(g) If at any time when Senior Notes remain unsold by the Underwriters, the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) of
the 1933 Act or otherwise ceases to be eligible to use the automatic shelf
registration statement form, the Company will (i) promptly notify the
Representatives, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Senior Notes,
in a form satisfactory to the Representatives, (iii) use its reasonable
best efforts to cause such registration statement or post-effective
amendment to be declared effective and (iv) promptly notify the
Representatives of such effectiveness. The Company will take all other
reasonable action necessary or appropriate to permit the public offering
and sale of the Senior Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2) notice or
for which the Company has otherwise become ineligible. References herein to
the Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 4(c) hereof, including filing fees and the reasonable
fees and disbursements of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the Pricing
Prospectus, any Permitted Free Writing Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the Financial Industry Regulatory Authority, Inc. in connection with its review
of the offering contemplated by this Agreement, if applicable, (viii) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for
the Trustee in connection with the Indenture and the Senior Notes, (ix) any fees
payable in connection with the rating of the Senior Notes, (x) the cost and
charges of any transfer agent or registrar, and (xi) the cost of qualifying the
Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 10 hereof, the Underwriters shall
pay all other expenses incurred by them in connection with their offering of the
Senior Notes including fees and disbursements of their counsel, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP.
11
SECTION 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering shall be pending before, or to the knowledge of
the Company threatened by, the Commission on such date. If filing of the
Pricing Prospectus or the Final Supplemented Prospectus, or any supplement
thereto, is required pursuant to Rule 424, the Pricing Prospectus and the
Final Supplemented Prospectus, and any such supplement, as applicable,
shall have been filed in the manner and within the time period required by
Rule 424. The pricing term sheet contemplated by Section 3(b) hereto, and
any other material required to be filed by the Company pursuant to Rule
433(d) under the 1933 Act, shall have been filed by the Company with the
Commission within the applicable time periods prescribed for such filings
by Rule 433.
(b) Any required orders of the Alabama Commission permitting the
transactions contemplated hereby substantially in accordance with the terms
and conditions hereof shall be in full force and effect and shall contain
no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representatives, are deemed acceptable to
the Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the
Company unless within 24 hours after receiving a copy of any such order any
party to this Agreement shall give notice to the other parties to the
effect that such order contains an unacceptable provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
general counsel for the Company, substantially in the form attached
hereto as Schedule IV-A.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule IV-B.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
LLP, counsel to the Trustee, substantially in the form attached hereto
as Schedule V.
(4) The opinion, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule VI.
12
(d) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given
in the Registration Statement and the Final Supplemented Prospectus,
any material adverse change in the business, properties or financial
condition of the Company, whether or not arising in the ordinary
course of business, and the Representatives shall have received a
certificate of the President or any Vice President of the Company, and
dated as of the Closing Date, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties
in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
Closing Date and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(e) The Representatives shall have received on the date hereof and
shall receive on the Closing Date from Deloitte & Touche LLP, a letter
or letters addressed to the Representatives (which may refer to
letters previously delivered to the Representatives) dated the
respective dates of delivery thereof to the effect that: (A) they are
an independent registered public accounting firm with respect to the
Company within the meaning of the 1933 Act and the rules and
regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable, comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the
rules and regulations under the 1934 Act; and (C) on the basis of
certain limited procedures performed through a specified date not more
than three business days prior to the date of such letter, namely (i)
reading the minute books of the Company; (ii) performing the
procedures specified by the standards of the Public Company Accounting
Oversight Board (United States) for a review of interim financial
statement information as described in Statement on Auditing Standards
No. 100, "Interim Financial Information," on the unaudited financial
statements, if any, of the Company incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable, and on the latest available unaudited
financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable; and (iii) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding such unaudited financial statements or
any specified unaudited amounts derived therefrom (it being understood
that the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they would
13
not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche
LLP make no representations as to the sufficiency of such procedures
for the Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any,
incorporated by reference in the Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable, for
them to be in conformity with GAAP; (2) such unaudited condensed
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Earnings
Before Income Taxes and Net Income After Dividends on Preferred and
Preference Stock and the unaudited Ratio of Earnings to Fixed Charges
set forth in the Registration Statement and the Pricing Prospectus or
the Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, do not agree with the amounts
set forth in or derived from the unaudited financial statements for
the same period included or incorporated by reference in the
Registration Statement; (4) as of a specified date not more than three
business days prior to the date of delivery of such letter, there has
been any change in the capital stock or long-term debt of the Company
or any decrease in net assets as compared with amounts shown in the
latest unaudited balance sheet incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable, except in each case for changes or
decreases which (i) the Registration Statement and the Pricing
Prospectus or the Registration Statement, the Pricing Prospectus and
the Final Supplemented Prospectus, as applicable, disclose have
occurred or may occur, (ii) are occasioned by the declaration of
dividends, (iii) are occasioned by draw-downs under existing pollution
control financing arrangements, (iv) are occasioned by regularly
scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating thereto, (vi) are
occasioned by the reclassification of current maturities of long-term
debt, or (vii) are disclosed in such letter; and (5) the unaudited
amounts for Operating Revenues, Earnings Before Income Taxes and Net
Income After Dividends on Preferred and Preference Stock and the
unaudited Ratio of Earnings to Fixed Charges for any calendar quarter
subsequent to those set forth in (3) above, which, if available, shall
be set forth in such letter, do not agree with the amounts set forth
in or derived from the unaudited financial statements for the same
period or were not determined on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
incorporated by reference in the Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably
14
require for the purpose of enabling it to pass upon the issuance and
sale of the Senior Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Representatives and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) No amendment or supplement to the Registration Statement or the
Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to
Section 13 or 14 of the 1934 Act) shall be unsatisfactory in form to
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP or shall contain information (other than with
respect to an amendment or supplement relating solely to the activity
of the Underwriters) which, in the reasonable judgment of the
Representatives, shall materially impair the marketability of the
Senior Notes.
(h) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time prior to the Closing Date,
and such termination shall be without liability of any party to any other party
except as provided in Sections 5, 8 and 10(b) hereof.
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company shall be subject to the conditions set forth in the first sentence of
Section 6(a) and in Section 6(b). In case such conditions shall not have been
fulfilled, this Agreement may be terminated by the Company by mailing or
delivering written notice thereof to the Representatives. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 5, 8 and 10(b) hereof.
SECTION 8. INDEMNIFICATION.
The Company agrees to indemnify and hold harmless each of the Underwriters
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Permitted Free
Writing Prospectus or the Final Supplemented Prospectus or, if the Company shall
furnish to the Underwriters any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus, the Final Supplemented Prospectus as so
15
amended or supplemented, or in any free writing prospectus used by the Company
other than a Permitted Free Writing Prospectus, or arise out of or are based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Basic Prospectus, Pricing Prospectus, Permitted Free
Writing Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives for use therein. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 8, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 8. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
16
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 8(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus or the Final Supplemented Prospectus, or such
documents as amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through the
Representatives for use therein.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by, or on behalf of the Company and shall survive delivery of the Senior Notes
to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally
suspended or there shall have been a material disruption in settlement
in securities generally, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock Exchange
by the Commission or by the New York Stock Exchange, (iii) a general
banking moratorium shall have been declared by federal or New York
State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity, crisis or
emergency (including, without limitation, acts of terrorism) affecting
the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of the
Representatives, the offering, sale or delivery of the Senior Notes on
the terms and in the manner contemplated by this Agreement and the
Final Supplemented Prospectus shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representatives
pursuant to subsection (a) above or because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, then
in any such case, the Company will reimburse the Underwriters for the
reasonable fees and disbursements of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and for the
out of pocket expenses (in an amount not exceeding $10,000) reasonably
incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder,
except as provided in Sections 5 and 8 hereof.
17
SECTION 11. DEFAULT BY AN UNDERWRITER. If an Underwriter shall fail on the
Closing Date to purchase the Senior Notes that it is obligated to purchase under
this Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriters, or any other underwriters to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the Senior Notes, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION 12. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives at Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; and (ii) ▇▇▇▇▇▇
Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt
Capital Markets, Power Group (with a copy to the General Counsel at the same
address); notices to the Company shall be mailed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. Boulevard, N.W., Atlanta,
Georgia 30308, Attention: ▇▇▇▇ ▇. ▇▇▇▇.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
18
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase. The Company
acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement, the Company and the Underwriters have
arms-length business relationships that create no fiduciary duty on the part of
any party and each expressly disclaims any fiduciary or financial advisory
relationship.
SECTION 14. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 15. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
As Representatives of the Underwriters named in Schedule I hereto
SCHEDULE I
Principal Amount of
Name of Underwriters Series 2008A Senior
Notes
Citigroup Global Markets Inc. $ 120,000,000
▇▇▇▇▇▇ Brothers Inc. 120,000,000
Calyon Securities (USA) Inc. 12,000,000
Lazard Capital Markets LLC 12,000,000
Mizuho Securities USA Inc. 24,000,000
▇▇▇▇▇▇▇▇▇ Capital Partners, LLC 12,000,000
--------------------
TOTAL: $300,000,000
============
I-1
SCHEDULE II
PRICING TERM SHEET
(To Preliminary Prospectus Supplement dated May 8, 2008)
Issuer: Alabama Power Company
Security: Series 2008A 6.125% Senior Notes due May 15, 2038
Expected Ratings*: A2/A/A+ (▇▇▇▇▇'▇/Standard & Poor's/Fitch)
Size: $300,000,000
Coupon: 6.125%
Public Offering Price: 99.741%
Treasury Benchmark: 5.00% due May 15, 2037
US Treasury Yield: 4.594%
Spread to Treasury: 155 basis points
Re-offer Yield: 6.144%
Make-Whole Call: T+ 25 basis points
Interest Payment Dates: May 15 and November 15 of each year, beginning
November 15, 2008
Format: SEC Registered
Transaction Date: May 8, 2008
Expected Settlement Date: May 14, 2008
Joint-Lead Managers: Citigroup Global Markets Inc.
▇▇▇▇▇▇ Brothers Inc.
Co-Managers: Calyon Securities (USA) Inc.
Lazard Capital Markets LLC
Mizuho Securities USA Inc.
▇▇▇▇▇▇▇▇▇ Capital Partners, LLC
II-1
* Note: A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting ▇▇▇▇▇ on the
SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any underwriter or any
dealer participating in this offering will arrange to send you the prospectus if
you request it by calling Alabama Power Company collect at ▇-▇▇▇-▇▇▇-▇▇▇▇ or
Citigroup Global Markets Inc. toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇▇▇▇ Brothers
Inc. toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇.
II-2
SCHEDULE III
PRICING DISCLOSURE PACKAGE
1) Prospectus dated January 8, 2008
2) Preliminary Prospectus Supplement dated May 8, 2008 (which shall be
deemed to include documents incorporated by reference therein)
3) Permitted Free Writing Prospectuses
a) Pricing Term Sheet attached as Schedule II hereto
III-1
Schedule IV-A
[Letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
May 14, 2008
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series 2008A 6.125% Senior Notes
due May 15, 2038
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the "Company")
in connection with (i) the Company's issuance of $300,000,000 aggregate
principal amount of its Series 2008A 6.125% Senior Notes due May 15, 2038 (the
"Notes") pursuant to a Senior Note Indenture dated as of December 1, 1997, by
and between the Company and The Bank of New York (as successor to JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank)), as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the
Forty-First Supplemental Indenture dated as of May 14, 2008 (collectively, the
"Indenture"); and (ii) the purchase by the Underwriters (as defined herein) of
the Notes pursuant to the terms of an Underwriting Agreement dated May 8, 2008
(the "Underwriting Agreement") among the Company and the Underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives"). This opinion is being delivered to you
as Representatives pursuant to Section 6(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have the meanings
set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File No. 333-148513) pertaining to the Notes
and certain other securities filed by the Company under the Securities Act of
1933, as amended (the "Act"), as it became effective under the Act (the
"Registration Statement"); the Company's prospectus dated January 8, 2008 (the
"Basic Prospectus") as supplemented by a preliminary prospectus supplement dated
May 8, 2008 (the "Pricing Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act, which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2007, the Quarterly Report on Form 10-Q for the quarter ended
March 31, 2008 and the Current Reports on Form 8-K of the Company dated December
21, 2007, January 8, 2008 and February 26, 2008 (the "Pricing Exchange Act
Documents"), and a prospectus supplement dated May 8, 2008 (together with the
Basic Prospectus, the "Final Supplemented Prospectus"), filed by the Company
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
IV-A-1
Act, which, pursuant to Form S-3, incorporates by reference the Pricing Exchange
Act Documents and the Current Report on Form 8-K of the Company dated May 8,
2008 (the "Exchange Act Documents"), as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); and the Indenture. We have also
examined the free writing prospectus prepared by the Company and filed with the
Commission on May 8, 2008 pursuant to Rule 433 of the Act (the "Permitted Free
Writing Prospectus"). The documents listed in Schedule III to the Underwriting
Agreement, taken together, are collectively referred to as the "Pricing
Disclosure Package."
In addition, we have examined, and have relied as to matters of fact upon,
the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures (other than those of the Company), the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as the
"Agreements."
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion, relying as to matters of New York law upon
the opinion dated the date hereof rendered to you by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly organized and is validly existing and in good
standing as a corporation under the laws of the State of Alabama and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the Alabama
Public Service Commission and the Commission legally required for the issuance
and sale of the Notes have been obtained; such orders are sufficient for the
issuance and the sale of the Notes; the issuance and the sale of the Notes
conform in all material respects with the terms of such orders; and no other
IV-A-2
order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Pricing Disclosure Package and the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to the extent set
forth in paragraphs 4 and 5 above. In the course of the preparation by the
Company of the Registration Statement, the Pricing Disclosure Package, the Final
Supplemented Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with other
counsel for the Company, with representatives of Deloitte & Touche LLP and with
your counsel. Based upon our examination of the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation of the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus and the Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion that the Registration
IV-A-3
Statement, on the Effective Date, and the Final Supplemented Prospectus, as of
May 8, 2008, complied as to form in all material respects with the relevant
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, on the
Effective Date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, that the Pricing Disclosure
Package, as of the Applicable Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement therein of a material fact or omitted, as of its
date, or omits, on the date hereof, to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Pricing Prospectus and the Final Supplemented Prospectus under the caption
"Description of the Series 2008A Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Alabama and we do not express any
opinion herein concerning any law other than the laws of such State and the
federal law of the United States and, to the extent set forth herein, the law of
the State of New York.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent, except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may rely on
this opinion in giving their opinions pursuant to the Underwriting Agreement
insofar as such opinion relates to matters of Alabama law.
Yours very truly,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
IV-A-4
Schedule IV-B
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
May 14, 2008
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series 2008A 6.125% Senior Notes
due May 15, 2038
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the "Company") in
connection with (i) the Company's issuance of $300,000,000 aggregate principal
amount of its Series 2008A 6.125% Senior Notes due May 15, 2038 (the "Notes")
pursuant to a Senior Note Indenture dated as of December 1, 1997, by and between
the Company and The Bank of New York (as successor to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank)), as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Forty-First
Supplemental Indenture dated as of May 14, 2008 (collectively, the "Indenture");
and (ii) the purchase by the Underwriters (as defined herein) of the Notes
pursuant to the terms of an Underwriting Agreement dated May 8, 2008 (the
"Underwriting Agreement"), among the Company and the Underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives"). This opinion is being delivered to you
as Representatives pursuant to Section 6(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have the meanings
set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File No. 333-148513) pertaining to the Notes
IV-B-1
and certain other securities filed by the Company under the Securities Act of
1933, as amended (the "Act"), as it became effective under the Act (the
"Registration Statement"); the Company's prospectus dated January 8, 2008 (the
"Basic Prospectus") as supplemented by a preliminary prospectus supplement dated
May 8, 2008 (the "Pricing Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2007, the Quarterly Report on Form 10-Q of the Company for
the quarter ended March 31, 2008 and the Current Reports on Form 8-K of the
Company dated December 21, 2007, January 8, 2008 and February 26, 2008 (the
"Pricing Exchange Act Documents"), and as supplemented by a prospectus
supplement dated May 8, 2008 (together with the Basic Prospectus, the "Final
Supplemented Prospectus"), filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, which, pursuant to Form
S-3, incorporates by reference the Pricing Exchange Act Documents and the
Current Report on Form 8-K of the Company dated May 8, 2008 (the "Exchange Act
Documents"), as filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and the Indenture. We have also examined the free writing
prospectus prepared by the Company and filed with the Commission on May 8, 2008
pursuant to Rule 433 of the Act (the "Permitted Free Writing Prospectus"). The
documents listed in Schedule III to the Underwriting Agreement, taken together,
are collectively referred to as the "Pricing Disclosure Package."
In addition, we have examined, and have relied as to matters of fact upon,
the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as the
"Agreements."
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion, relying as to matters of Alabama law upon
the opinion dated the date hereof rendered to you by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and
relying as to matters of New York law upon the opinion dated the date hereof
rendered to you by ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly organized and is validly existing and in good
standing as a corporation under the laws of the State of Alabama and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
IV-B-2
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the Alabama
Public Service Commission and the Commission legally required for the issuance
and sale of the Notes have been obtained; such orders are sufficient for the
issuance and the sale of the Notes; the issuance and the sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Alabama or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Pricing Disclosure Package and the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to the extent set
forth in paragraphs 4 and 5 above. In the course of the preparation by the
Company of the Registration Statement, the Pricing Disclosure Package, the Final
Supplemented Prospectus and the Exchange Act Documents, we participated in
IV-B-3
conferences with certain officers and employees of the Company, with other
counsel for the Company, with representatives of Deloitte & Touche LLP and with
your counsel. Based upon our examination of the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation of the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus and the Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion that the Registration
Statement, on the Effective Date, and the Final Supplemented Prospectus, as of
May 8, 2008, complied as to form in all material respects with the relevant
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe (A) that the Registration Statement, on the
Effective Date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, (B) that the Pricing Disclosure
Package, as of the Applicable Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or (C) that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement therein of a material fact or omitted, as of its
date, or omits, on the date hereof, to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Pricing Prospectus and the Final Supplemented Prospectus under the caption
"Description of the Series 2008A Senior Notes - Book-Entry-Only Issuance - The
Depository Trust Company."
The attorneys in this firm that are rendering this opinion are members of
the State Bar of Georgia and we do not express any opinion herein concerning any
law other than the law of the State of Georgia, the federal law of the United
States and, to the extent set forth herein, the laws of the States of Alabama
and New York.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other purpose,
or relied upon by or furnished to any other person without our prior written
consent.
Iv-B-4
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule V
[Letterhead of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇]
May 14, 2008
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Alabama Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Alabama Power Company
Series 2008A 6.125% Senior Notes due May 15, 2038
Ladies and Gentlemen:
We have acted as counsel for The Bank of New York (as successor to JPMorgan
Chase Bank, N.A. (formerly known as The Chase Manhattan Bank)) ("BNY"), in
connection with the issuance by Alabama Power Company (the "Company") of
$300,000,000 aggregate principal amount of Series 2008A 6.125% Senior Notes due
May 15, 2038 (the "Notes"). The Notes are being issued under the Senior Note
Indenture dated as of December 1, 1997 (the "Original Indenture") between the
Company and BNY, as trustee (in such capacity, the "Trustee"), as heretofore
supplemented and as further supplemented by the Forty-First Supplemental
Indenture dated as of May 14, 2008 (the "Supplemental Indenture" and, together
with the Original Indenture, the "Indenture") between the Company and the
Trustee.
For purposes of this opinion, we have reviewed the Indenture and such other
documents, records and papers, and satisfied ourselves as to such other matters,
as we have deemed necessary or appropriate for this opinion. As to questions of
fact material to this opinion, we have relied on certificates of BNY and of
public officials. In such review, we have assumed the genuineness of all
V-1
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies or forms and the authenticity of the
originals of such latter documents. We have assumed that BNY has been duly
incorporated and that the Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding agreement of, and
is enforceable in accordance with its terms against, the Company.
Based upon the foregoing and subject to the qualifications below, we are of
the opinion that:
1) BNY is a banking corporation validly existing under the laws of the
State of New York with corporate power and authority to enter into and perform
its obligations under the Indenture.
2) The Supplemental Indenture has been duly authorized, executed and
delivered by BNY and the Indenture constitutes a valid and binding agreement of
BNY enforceable against BNY in accordance with its terms, except as may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of reasonableness, good faith
and fair dealing.
We are members of the Bar of the State of New York and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York. The opinions expressed herein are
limited to matters governed by the laws of the State of New York.
This opinion is solely for your benefit in connection with the issuance and
sale by the Company of the Notes and may not be relied upon by you for any other
purpose, or relied upon or furnished to any other person, without our prior
written consent.
Very truly yours,
V-2
Schedule VI
[Letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
May 14, 2008
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
ALABAMA POWER COMPANY
Series 2008A 6.125% Senior Notes
due May 15, 2038
Ladies and Gentlemen:
We have represented the Underwriters (hereinafter defined) in connection
with (i) the issuance and sale by Alabama Power Company (the "Company") of
$300,000,000 aggregate principal amount of its Series 2008A 6.125% Senior Notes
due May 15, 2038 (the "Notes") pursuant to a Senior Note Indenture dated as of
December 1, 1997, by and between the Company and The Bank of New York (as
successor to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Forty-First Supplemental Indenture, dated as of May 14, 2008
(collectively, the "Indenture"); and (ii) the purchase by the Underwriters (as
defined herein) of the Notes pursuant to the terms of an Underwriting Agreement
dated May 8, 2008 (the "Underwriting Agreement"), among the Company and the
Underwriters named in Schedule I thereto (the "Underwriters") for whom you are
acting as representatives (the "Representatives"). This opinion is being
delivered to you as Representatives pursuant to Section 6(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have the meanings
set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (File No. 333-148513) pertaining to the Notes
and certain other securities filed by the Company under the Securities Act of
1933, as amended (the "Act"), as it became effective under the Act (the
VI-1
"Registration Statement"); the Company's prospectus dated January 8, 2008 (the
"Basic Prospectus") as supplemented by a preliminary prospectus supplement dated
May 8, 2008 (the "Pricing Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Act, which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2007, the Quarterly Report on Form 10-Q of the Company for
the quarter ended March 31, 2008 and the Current Reports on Form 8-K of the
Company dated December 21, 2007, January 8, 2008 and February 26, 2008 (the
"Pricing Exchange Act Documents"), and a prospectus supplement dated May 8, 2008
(together with the Basic Prospectus, the "Final Supplemented Prospectus"), filed
by the Company pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, which, pursuant to Form S-3, incorporates by reference
the Pricing Exchange Act Documents and the Current Report on Form 8-K of the
Company dated May 8, 2008 (the "Exchange Act Documents"), as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. We have also examined the free writing prospectus prepared by the
Company and filed with the Commission on May 8, 2008 pursuant to Rule 433 of the
Act (the "Permitted Free Writing Prospectus"). The documents listed in Schedule
III to the Underwriting Agreement, taken together, are collectively referred to
as the "Pricing Disclosure Package."
In addition, we have examined, and have relied as to matters of fact upon,
the documents delivered to you at the closing (except the certificate
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as the
"Agreements."
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion, relying as aforesaid and as to all matters
covered hereby which are governed by or dependent upon the law of the State of
Alabama upon the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP dated the date hereof and
addressed to you, that:
1. The Company has been duly organized and is validly existing and in good
standing as a corporation under the laws of the State of Alabama and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
VI-2
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the Alabama
Public Service Commission and the Commission legally required for the issuance
and sale of the Notes have been obtained; such orders are sufficient for the
issuance and sale of the Notes; the issuance and sale of the Notes conform in
all material respects with the terms of such orders; and no other order, consent
or other authorization or approval of any Alabama or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and sale of the Notes in
accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery thereof by
the Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Pricing Disclosure Package and the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
We have not independently verified the accuracy, completeness or fairness
of the statements made or included in the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to the extent set
forth in paragraphs 4 and 5 above. In the course of the preparation by the
Company of the Registration Statement, the Pricing Disclosure Package, the Final
Supplemented Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with
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representatives of Deloitte & Touche LLP and with counsel to the Company. Based
upon our examination of the Registration Statement, the Pricing Disclosure
Package, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Pricing Disclosure Package and the Final Supplemented Prospectus
and our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, on the Effective Date, and the Final
Supplemented Prospectus, as of May 8, 2008, complied as to form in all material
respects with the relevant requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, on the
Effective Date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, that the Pricing Disclosure
Package, as of the Applicable Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement of a material fact or omitted, as of its date, or
omits, on the date hereof, to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Pricing
Prospectus and the Final Supplemented Prospectus under the caption "Description
of the Series 2008A Senior Notes - Book-Entry Only Issuance - The Depository
Trust Company."
We are members of the State Bar of New York and we do not express any
opinion herein concerning any law other than the law of the State of New York
and the federal law of the United States and, to the extent set forth herein,
the law of the State of Alabama.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by or furnished to any other person without our prior written consent except
that ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in
VI-4
giving their opinions pursuant to Section 6 of the Underwriting Agreement,
insofar as such opinions relate to matters of New York law, and ▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP may rely on this opinion in giving its opinion pursuant to Sections 102, 302
and 904 of the Indenture, insofar as such opinion relates to matters of New York
law.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP