Exhibit 1.1
$250,000,000
Series BB Floating Rate Senior Notes
due August 25, 2009
ALABAMA POWER COMPANY
UNDERWRITING AGREEMENT
August 19, 2004
BNY Capital Markets, Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Alabama Power Company, an Alabama corporation (the "Company"),
confirms its agreement (the "Agreement") with each of you (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of $250,000,000 aggregate principal amount of the Series BB Floating Rate Senior
Notes due August 25, 2009 (the "Senior Notes") as set forth in Schedule I
hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The Senior Notes
will be issued pursuant to an indenture, dated as of December 1, 1997, as
heretofore supplemented (the "Base Indenture"), between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), and as further supplemented by a twenty-eighth supplemental
indenture, dated as of August 25, 2004, 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.
Pursuant to a Calculation Agent Agreement, dated as of June
15, 2002 (the "Calculation Agent Agreement"), between the Company and JPMorgan
Chase Bank, as calculation agent thereunder (the "Calculation Agent"), the
Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-110950,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-110950-03) 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, has been declared effective by 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 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 it became effective, including the exhibits
thereto and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the time such registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Senior Notes, in the form in which it was
included in the Registration Statement at the time it became effective,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the 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 or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or 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 or 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; and the Prospectus as amended or
supplemented in final form 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 3(e) hereof,
including any documents incorporated by reference therein as of the date of
such filing, being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or 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 Prospectus, 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 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 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 the Underwriters expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption "Description of the
Series BB Senior Notes - Book-Entry-Only Issuance - The Depository Trust
Company."
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or supplements
to the Registration Statement or the Prospectus, when any such
post-effective amendments are declared 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 (hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto
and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, 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 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) statements or omissions made in the Registration
Statement or the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters expressly for use therein or (C) any information set forth in
the Final Supplemented Prospectus under the caption "Description of the
Series BB Senior Notes - Book-Entry-Only Issuance - The Depository Trust
Company. "
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented 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.
(f) 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.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) 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 Final
Supplemented Prospectus; and, on the Closing Date, the Indenture will have
been duly qualified under the 1939 Act.
(i) 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 the Final Supplemented Prospectus, 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 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 Final Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery of the Calculation Agent Agreement by the Calculation Agent, the
Calculation Agent Agreement 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 the Enforceability Exceptions.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent 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.
(l) 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 Public Utility Holding Company Act of
1935, as amended; (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.
(m) The financial statements incorporated by reference in the
Registration Statement 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 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 Final Supplemented Prospectus present 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 10 hereof), at
a price equal to 99.50% of the principal amount thereof.
(b) Payment for 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 August 25, 2004 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be
agreed upon by the Underwriters 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 Wachovia Capital Markets, LLC
("Wachovia"), on behalf of all of the Underwriters. It is understood that
each Underwriter has authorized ▇▇▇▇▇▇▇▇, 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.
▇▇▇▇▇▇▇▇, 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 Underwriters shall accept
such delivery.
The certificate(s) for the Senior Notes will be made available for
examination by the Underwriters not later than 12:00 Noon, New York time, on the
last business day prior to the Closing Date.
SECTION 3. 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 Underwriters orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, 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 Underwriters
sufficient conformed copies of the Registration Statement, the 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 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 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 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 Underwriters, 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 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 Preliminary Prospectus or the
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 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 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
such 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 Underwriters 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 Underwriters 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 fiscal quarter next 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, to
file the Final Supplemented Prospectus with the Commission and to advise
the Underwriters of such filing and to confirm such advice in writing.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriters' 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
securities substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement). The Underwriters agree that
commercial paper or other debt securities with scheduled maturities of less
than one year are not subject to this Section 3(f).
SECTION 4. 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 3(c) hereof, including filing fees and
the reasonable fees and disbursements of 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
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 National Association of Securities
Dealers, Inc. in connection with its review of the offering contemplated by this
Agreement, if applicable, (viii) the fees and expenses of the Trustee and the
Calculation Agent, including the fees and disbursements of counsel for the
Trustee and the Calculation Agent in connection with the Indenture, the
Calculation Agent Agreement 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 9 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.
SECTION 5. 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 shall be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing of the Final
Supplemented Prospectus, or any supplement thereto, is required pursuant to
Rule 424, the Final Supplemented Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424.
(b) Any required orders of the Alabama Commission and the 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 Underwriters, 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 Underwriters 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 II-A.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II-B.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Swaine &
▇▇▇▇▇ LLP, counsel to the Trustee and the Calculation Agent,
substantially in the form attached hereto as Schedule III.
(4) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(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 Underwriters 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 have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(e) On the Closing Date, the Underwriters shall have received from
Deloitte & Touche LLP, a letter dated the Closing Date 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 Final
Supplemented Prospectus 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 five 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) ("PCAOB")
for a review of interim financial statement information as described in
PCAOB Interim Standard AU 722, "Interim Financial Information", on the
unaudited financial statements, if any, of the Company incorporated by
reference in the Final Supplemented Prospectus and on the latest available
unaudited financial statements of the Company, if any, for any calendar
quarter subsequent to the date of those incorporated in the Final
Supplemented Prospectus; 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 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 in the Final Supplemented Prospectus, 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 Stock and the unaudited Ratio of
Earnings to Fixed Charges set forth in the Final Supplemented Prospectus 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 five 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 balance sheet incorporated in the Final Supplemented Prospectus,
except in each case for changes or decreases which (i) the Final
Supplemented Prospectus discloses 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 draw-downs and 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 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 Final Supplemented Prospectus.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably 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 Underwriters 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 Underwriters, 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
Underwriters 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 4, 7 and 9(b) hereof.
SECTION 6. 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 5(a) and in Section 5(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 Underwriters. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) 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, 1934 Act or otherwise, and to reimburse 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
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 Prospectus or the Final Supplemented Prospectus
as so amended or supplemented, 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, Prospectus or Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company shall have
furnished any amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling such Underwriter)
on account of any losses, claims, damages, liabilities or actions arising
from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item
12 of Form S-3), as the same may then be amended or supplemented, shall not
have been sent or given by or on behalf of such Underwriter to such person
with or prior to the written confirmation of the sale involved and the
untrue statement or alleged untrue statement or omission or alleged
omission was corrected in the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus as supplemented or amended at the time of
such confirmation. 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 7, 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 7. 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.
(b) 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 the same extent and upon the same terms as
the indemnity agreement of the Company set forth in Section 7(a) hereof,
but only with respect to alleged untrue statements or omissions made in the
Registration Statement, the Preliminary Prospectus, the 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 such Underwriter for use therein.
SECTION 8. 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 9. TERMINATION OF AGREEMENT.
(a) The Underwriters 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 Underwriters, the marketability of the Senior Notes shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriters 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 4 and 7.
SECTION 10. 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 non-defaulting Underwriters
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of 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
non-defaulting Underwriters 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, each of 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 non-defaulting Underwriters 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 or Final
Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. 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 Underwriters at BNY Capital Markets, Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Credit Capital Markets;
Wachovia Capital Markets, LLC at One Wachovia Center, TW-▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.;
notices to the Company shall be mailed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇.
SECTION 12. 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 7 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
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.
SECTION 13. 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 14. 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.
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 between
the Underwriters and the Company in accordance with its terms.
Very truly yours,
ALABAMA POWER COMPANY
By: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written
BNY CAPITAL MARKETS, INC.
By:
Title:
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
WACHOVIA CAPITAL MARKETS, LLC
By:
Title:
SCHEDULE I
Principal Amount of
Name of Underwriters Series BB Senior Notes
BNY Capital Markets, Inc. $ 83,333,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 83,333,000
Wachovia Capital Markets, LLC $ 83,334,000
TOTAL: $250,000,000
============
Schedule II-A
[Letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
August __, 2004
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ALABAMA POWER COMPANY
Series BB Floating Rate Senior Notes
due August 25, 2009
Ladies and Gentlemen:
We have acted as general counsel to Alabama Power Company (the "Company")
in connection with (i) the Company's issuance of $250,000,000 aggregate
principal amount of its Series BB Floating Rate Senior Notes due August 25, 2009
(the "Notes") pursuant to a Senior Note Indenture dated as of December 1, 1997,
by and between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Twenty-Eighth Supplemental Indenture dated as of
August 25, 2004 (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 August 19, 2004 (the "Underwriting Agreement"),
among the Company and the Underwriters named in Schedule I thereto. Pursuant to
a Calculation Agent Agreement, dated as of June 15, 2002 (the "Calculation Agent
Agreement"), between the Company and JPMorgan Chase Bank, as calculation agent
thereunder (the "Calculation Agent"), the Company has engaged the Calculation
Agent to perform certain services with respect to the floating interest rate on
the Notes. This opinion is being delivered to you pursuant to Section 5(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 Nos. 333-110950, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement") filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003 as
supplemented by a final prospectus supplement relating to the Notes dated August
19, 2004 (the "Final Supplemented Prospectus"), 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, 2003 (the "Form 10-K"), the Quarterly Reports on
Form 10-Q of the Company for the quarters ended March 31, 2004 and June 30, 2004
and the Current Reports on Form 8-K of the Company dated February 5, 2004,
February 10, 2004, April 7, 2004, April 7, 2004, August 2, 2004 and August 19,
2004 (the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
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, the Calculation Agent Agreement 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 and 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 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. Each of the Calculation Agent Agreement and the Indenture has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, 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 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; and the Notes conform as to legal matters in all
material respects to the description thereof in 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 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
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
Final Supplemented Prospectus and the Exchange Act Documents, our investigations
made in connection with the preparation of the Registration Statement, 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, as of its effective date, and the Final Supplemented
Prospectus, as of August 19, 2004, complied as to form in all material respects
with the 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 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, as of the date of the filing of the
Form 10-K (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, 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, as of 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 Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series BB 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, to the
extent set forth herein, the law of the State of New York and the federal law of
the United States.
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
Schedule II-B
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
August __, 2004
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ALABAMA POWER COMPANY
Series BB Floating Rate Senior Notes
due August 25, 2009
Ladies and Gentlemen:
We have acted as counsel to Alabama Power Company (the "Company") in
connection with (i) the Company's issuance of $250,000,000 aggregate principal
amount of its Series BB Floating Rate Senior Notes due August 25, 2009 (the
"Notes") pursuant to a Senior Note Indenture dated as of December 1, 1997, by
and between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Twenty-Eighth Supplemental Indenture dated as of
August 25, 2004 (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 August 19, 2004 (the "Underwriting Agreement"),
among the Company and the Underwriters named in Schedule I thereto. Pursuant to
a Calculation Agent Agreement, dated as of June 15, 2002 (the "Calculation Agent
Agreement"), between the Company and JPMorgan Chase Bank, as calculation agent
thereunder (the "Calculation Agent"), the Company has engaged the Calculation
Agent to perform certain services with respect to the floating interest rate on
the Notes. This opinion is being delivered to you pursuant to Section 5(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 Nos. 333-110950, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement") filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003 as
supplemented by a final prospectus supplement relating to the Notes dated August
19, 2004 (the "Final Supplemented Prospectus"), 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, 2003 (the "Form 10-K"), the Quarterly Reports on
Form 10-Q of the Company for the quarters ended March 31, 2004 and June 30, 2004
and the Current Reports on Form 8-K of the Company dated February 5, 2004,
February 10, 2004, April 7, 2004, April 7, 2004, August 2, 2004 and August 19,
2004 (the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
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, the Calculation Agent Agreement and the Underwriting
Agreement are herein referred to collectively 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 incorporated and is validly existing as a
corporation in good standing 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 Securities and Exchange Commission (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. Each of the Calculation Agent Agreement and the Indenture has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, 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 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 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 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
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
Final Supplemented Prospectus and the Exchange Act Documents, our investigations
made in connection with the preparation of the Registration Statement, 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, as of its effective date, and the Final Supplemented
Prospectus, as of August 19, 2004, complied as to form in all material respects
with the 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 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, as of the date of the filing of the
Form 10-K (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, 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, as of 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 Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series BB Senior
Notes - Book-Entry-Only Issuance - The Depository Trust Company."
We 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 and
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.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule III
[Letterhead of Cravath, Swaine & ▇▇▇▇▇ LLP]
August __, 2004
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Alabama Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ALABAMA POWER COMPANY
Series BB Floating Rate Senior Notes
due August 25, 2009
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank) (the "Bank") in connection with (a) the Senior Note
Indenture, dated as of December 1, 1997 as heretofore supplemented (the
"Original Indenture"), between Alabama Power Company (the "Company") and the
Bank, as Trustee, (b) the Twenty-Eighth Supplemental Indenture, dated as of
August 25, 2004 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (c) the
Calculation Agent Agreement, dated as of June 15, 2002, between the Company and
the Bank, as Calculation Agent (the "Calculation Agent Agreement").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, records and other
instruments as we have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture and the Calculation Agent Agreement
and certain resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a banking
corporation in good standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture and the Calculation Agent
Agreement, has duly executed and delivered the Indenture and the Calculation
Agent Agreement and, insofar as the laws governing the trust powers of the Bank
are concerned and assuming due authorization, execution and delivery thereof by
the Company, each of the Indenture and the Calculation Agent Agreement
constitutes a legal, valid and binding agreement of the Bank, enforceable
against the Bank in accordance with its terms subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of the Indenture
and the Calculation Agent Agreement do not conflict with or constitute a breach
of the charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture and the Calculation
Agent Agreement or the performance by the Bank of its duties thereunder, except
such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and we express
no opinion as to matters governed by any laws other than the laws of the State
of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & ▇▇▇▇▇ LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
August __, 2004
BNY Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ALABAMA POWER COMPANY
Series BB Floating Rate Senior Notes
due August 25, 2009
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
$250,000,000 aggregate principal amount of its Series BB Floating Rate Senior
Notes due August 25, 2009 (the "Notes") pursuant to a Senior Note Indenture
dated as of December 1, 1997, by and between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Twenty-Eighth
Supplemental Indenture, dated as of August 25, 2004 (collectively, the
"Indenture"); and (ii) the purchase by the Underwriters of the Notes pursuant to
the terms of an Underwriting Agreement dated August 19, 2004 (the "Underwriting
Agreement"), among the Company and the Underwriters named in Schedule I thereto.
Pursuant to a Calculation Agent Agreement, dated as of June 15, 2002 (the
"Calculation Agent Agreement"), between the Company and JPMorgan Chase Bank, as
calculation agent thereunder (the "Calculation Agent"), the Company has engaged
the Calculation Agent to perform certain services with respect to the floating
interest rate on the Notes. This opinion is being delivered to you pursuant to
Section 5(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 Nos. 333-110950, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-110950-03) pertaining to the Notes and certain other
securities (the "Registration Statement"), filed under the Securities Act of
1933, as amended (the "Act"), and the prospectus dated December 19, 2003, as
supplemented by a final prospectus supplement relating to the Notes dated August
19, 2004 (the "Final Supplemented Prospectus"), 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, 2003 (the "Form 10-K"), the Quarterly Reports on
Form 10-Q of the Company for the quarters ended March 31, 2004 and June 30, 2004
and the Current Reports on Form 8-K of the Company dated February 5, 2004,
February 10, 2004, April 7, 2004, April 7, 2004, August 2, 2004 and August 19,
2004 (the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
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, the Calculation Agent Agreement 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 incorporated and is validly existing as a
corporation in good standing 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 Securities and Exchange Commission (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. Each of the Calculation Agent Agreement and the Indenture has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Trustee and the Calculation
Agent, respectively, 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 and the Calculation Agent Agreement 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 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 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 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
Final Supplemented Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with
representatives of Deloitte & Touche LLP and with counsel to the Company. Based
upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of August 19, 2004, complied as to
form in all material respects with the 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 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, as of the date
of the filing of the Form 10-K (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, 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 Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series BB
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
giving their opinions pursuant to Section 5 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