Exhibit 10.2(b)
COMPLETION GUARANTEE
THIS COMPLETION GUARANTEE, dated as of November __, 2001 (this
"Guarantee"), is made and entered into by and among THE SOUTHERN COMPANY, a
Delaware corporation ("Guarantor"), in favor of SOUTHERN POWER COMPANY, a
Delaware corporation (the "Borrower"), and CITIBANK, N.A., in its capacity as
agent for the benefit of the Lenders under, and as defined in, the Credit
Agreement (the "Credit Agreement") referred to below (in such capacity, the
"Agent"). Except as otherwise defined herein, capitalized terms used herein but
not defined shall have the respective meanings given to them in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, Guarantor owns all the outstanding stock of the Borrower;
WHEREAS, the Agent and the Lenders have agreed to enter into the Credit
Agreement of even date herewith (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement") with the Borrower, Xxxxxxx
Xxxxx Xxxxxx Inc. as Lead Arranger and Syndication Agent, the Co-Arrangers and
Lenders party thereto, and Citibank, N.A., as agent for the Lenders, on the
condition that Guarantor provide this Guarantee;
WHEREAS, Guarantor acknowledges that it will benefit, directly and
indirectly, from the Credit Agreement.
NOW, THEREFORE, in consideration of the provisions set forth above and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and as an inducement to the Agent and the Lenders to enter
into the Credit Agreement, Guarantor hereby consents and agrees as follows:
1. Guarantee. Guarantor hereby irrevocably guarantees and covenants in
favor of each of the Borrower and the Lenders, with respect to each of the
Projects listed in Schedule 1 hereto, as such Schedule 1 may be amended,
modified, supplemented, replaced and/or superceded from time to time by a
Completion Guarantee Supplement in the form of Exhibit A hereto (each, a
"Project"), as follows:
(a) if the aggregate principal amount of all Advances and CP
Commitment Reservations outstanding with respect to such Project equals
or exceeds the Project Limit for such Project and if the Borrower's
cash flow from operations is insufficient, the Guarantor will, from
time to time, (A) pay to the Agent, for the account of the Lenders and
on behalf of the Borrower, such amount as may be required to pay in
full the current interest due and payable under the Credit Agreement
attributable to such Project; and (B) make equity contributions or
loans, in the form of Affiliate Subordinated Debt, in cash or by wire
transfer of immediately available funds to the Borrower to enable the
Borrower to pay all remaining Project Costs related to such Project, in
the case of sub-clauses (A) and (B) above, until the earlier of the
date on which Final Completion has been achieved with respect to such
Project and the Refinancing Date with respect to such Project; and
(b) subject to clause (c) below, if Final Completion for such
Project has not been achieved by the earliest to occur of (i) the
Buydown Date for such Project as set forth on Schedule 1 hereto, (ii)
the Final Maturity Date, and (iii) the occurrence of a "Guarantor Event
of Default" (as defined herein), the Guarantor shall, (A) on the
earliest of such dates, pay to the Agent, for the account of the
Lenders and on behalf of the Borrower, such amount as may be required
to pay in full the outstanding principal of all Advances then
outstanding with respect to such Project and all accrued and unpaid
interest related thereto; and (B) upon the maturity thereof, pay to the
holder of all Commercial Paper then outstanding with respect to such
Project and for which one or more CP Commitment Reservations are then
outstanding (or a trustee on behalf of such holders), for the account
of the Borrower, such amount as may be required to pay in full the
outstanding principal of all such Commercial Paper and all accrued and
unpaid interest related thereto;
(c) if Substantial Completion has then been achieved for such
Project, Guarantor shall not be obligated to pay any of the amounts
specified in clause (b) above, but shall instead be required to (i) on
the applicable date determined under clause (b) above, pay to the
Agent, for the account of the Lenders and on behalf of the Borrower,
such amount of the Advances then outstanding related to such Project,
if any, and (ii) pay, upon the maturity thereof, to the holder of all
Commercial Paper then outstanding with respect to such Project and for
which one or more CP Commitment Reservations are then outstanding (or a
trustee on behalf of such holders), for the account of the Borrower,
such amount as may be required to pay in full the outstanding principal
of all such Commercial Paper and all accrued and unpaid interest
related thereto, as is required, in the aggregate, to achieve the
minimum and average Portfolio Adjusted Base Case Projections,
calculated on the assumption that all Recourse Debt of the Borrower
Group Members, other than Recourse Debt related to Uncompleted Plants,
outstanding immediately following such repayment of Project Debt is
repaid in full on or before the end of the then Remaining Base Case
Period (each, a "Buydown Amount").
The Borrower hereby consents to and acknowledges any such payments by the
Guarantor on its behalf, and irrevocably and unconditionally instructs the
Guarantor to make, and the Guarantor hereby agrees that it will make, all
payments (whether on account of a loan (in the form of Affiliate Subordinated
Debt), cash equity contribution or otherwise) which are to be paid to the Agent
pursuant to Section 1(a), (b) and (c) above directly into the Agent's Account.
2. Guarantee Absolute. The liability of Guarantor under this
Guarantee shall be irrevocable and absolute irrespective of:
(a) any lack of validity or enforceability of or
defect or deficiency in the Credit Agreement or any other
documents executed in connection with the Credit Agreement;
(b) any modification, extension or waiver of any of the
terms of the Credit Agreement;
(c) any change in the time, manner, terms of payment of or in
any other term of, all or any of Guarantor's obligations under Section
1 hereof (the "Guaranteed Obligations"), or any other amendment or
waiver of or any consent to departure from any agreement or instrument
executed in connection therewith;
(d) failure, omission, delay, waiver or refusal by the Lenders
to exercise, in whole or in part, any right or remedy held by the
Lenders with respect to the Credit Agreement or any transaction under
the Credit Agreement;
(e) any change in the existence, structure or ownership of
Guarantor or the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or
its assets (including, without limitation, any unenforceability,
invalidity or disallowance of any of the Borrower's obligations under
the Credit Agreement as a result thereof); or
(f) any other circumstance or any existence of or reliance on
any representation by the Borrower or any other Person that might
otherwise constitute a defense available to, or a discharge of, a
guarantor or surety (other than the defense of payment).
The obligations of Guarantor hereunder are several from the
Borrower or any other Person, and are primary obligations concerning
which Guarantor is the principal obligor. There are no conditions
precedent to the enforcement of this Guarantee, except as expressly
contained herein.
This Guarantee is a continuing guarantee and shall remain in
full force and effect with respect to any Project until the earliest to
occur of (i) the payment in full in cash or by wire transfer of
immediately available funds of the Guaranteed Obligations with respect
to such Project; (ii) the occurrence of the Non-Recourse Date with
respect to such Project; and (iii) the termination of the Commitments
and the payment in full in cash or by wire transfer of immediately
available funds of all Project Debt attributable to Uncompleted
Projects and accrued and unpaid interest thereon.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of
the Guaranteed Obligations are annulled, set aside, invalidated,
declared to be fraudulent or preferential, rescinded or must otherwise
be returned, refunded or repaid by the Lenders upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower,
the Guarantor, or any other guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Borrower, the Guarantor, or any other
guarantor or any substantial part of its property or otherwise, or upon
the entry of an order by a bankruptcy court avoiding the payment of any
such amounts, all as though such payment or payments had not been made.
3. Waiver. This is a Guarantee of payment and not of
collection. Guarantor hereby irrevocably and unconditionally waives:
(a) notice of acceptance of this Guarantee, of the
creation or existence of any of the Guaranteed Obligations and of
any action by the Lenders in reliance hereon or in connection
herewith;
(b) except as expressly set forth herein, presentment, demand
for payment, notice of dishonor or nonpayment, protest and notice of
protest with respect to the Guaranteed Obligations; and
(c) any requirement that suit be brought against the Borrower
or any other person as a condition to Guarantor's liability for the
Guaranteed Obligations under this Guarantee or as a condition to the
enforcement of this Guarantee against Guarantor.
4. Representations and Warranties. Guarantor hereby represents
and warrants that:
(a) Organization and Good Standing. Guarantor is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
(b) Power, Authority and Due Authorization. Guarantor (i) has
the requisite corporate power and authority to execute, deliver and
perform this Guarantee and to take all action necessary to consummate
the transactions contemplated hereunder, and (ii) is duly authorized,
and has been authorized by all necessary corporate action, to execute,
deliver and perform this Guarantee.
(c) No Conflicts. Neither the execution and delivery of this
Guarantee, nor the consummation of the transactions contemplated
herein, nor performance of and compliance with the terms and provisions
hereof by Guarantor will (i) violate or conflict with any provision of
its certificate or articles of incorporation or bylaws, (ii) conflict
with or contravene any Law to which it or its properties are subject
which has had or would reasonably be expected to have a Material
Adverse Effect as to Guarantor, or (iii) violate any agreement to which
it is a party or by which it may be bound, the violation of which has
had or would reasonably be expected to have a Material Adverse Effect
as to Guarantor.
(d) Consents. No approval or authorization or other action by,
or filing, registration or qualification with, any governmental
authority is required for the due execution, delivery or performance by
Guarantor of this Guarantee and the transactions contemplated hereby,
except for those which have been duly obtained or made and are in full
force and effect.
(e) Enforceable Obligations. This Guarantee has been duly
executed and delivered by Guarantor and constitutes the legal, valid
and binding obligation of Guarantor enforceable against Guarantor in
accordance with its terms, subject to laws affecting the enforcement of
creditors' rights generally and to general principles of equity.
(f) Litigation. No litigation, arbitration, or administrative
proceeding is currently pending or, to Guarantor's knowledge,
threatened against Guarantor (i) to restrain the entry by Guarantor
into, the enforcement of or exercise of any rights by the Lenders or
the Agent under, or the performance or compliance by Guarantor with any
obligations under, this Guarantee, or (ii) which has had or would
reasonably be expected to have a Material Adverse Effect.
(g) Financial Condition. The consolidated balance sheet of
Guarantor as at December 31, 2000 and the related consolidated
statements of income, retained earnings and cash flow for the fiscal
year then ended, heretofore furnished to the Lenders, fairly present
the consolidated financial condition and results of operations of
Guarantor as of the date thereof and the consolidated results of its
operations for such fiscal year in accordance with GAAP.
(h) Material Adverse Change. There has been no
change in the financial condition or results of operations of
Guarantor since December 31, 2000 which has had or would
reasonably be expected to have a Material Adverse Effect as to
Guarantor.
(i) No Guarantor Event of Default. No Guarantor Event of
Default (as defined herein) has
5. Guarantor Events of Default. A "Guarantor Event of
Default" shall mean that any of the following events has occurred
and is continuing:
(a) Guarantor fails to (i) pay or prepay any principal of any
Project Debt required to be paid by it pursuant to Section 1 hereof
when due; or (ii) pay any interest with respect to any Project Debt
required to be paid by it pursuant to Section 1 hereof, make any equity
contribution or loan required to be made by it pursuant to Section 1
hereof, or pay any other amounts payable under this Guarantee, in the
case of sub-clause (ii) only, within five (5) Business Days after the
same shall become due and payable; or
(b) Any one or more of the representations and warranties made
in this Guarantee, the Southern Equity Agreement or any certificate
delivered by Guarantor or Borrower (with respect only to
representations and warranties set forth in Section 4 of this Guarantee
or Section 2 of the Southern Equity Agreement) in connection with the
Credit Agreement proves to have been materially incorrect when made
and, if the events giving rise to such representation or warranty are
susceptible of cure, it shall not have been cured within 30 days after
written notice of such default has been given to Guarantor by the Agent
(or such longer period as the Majority Lenders may permit); or
(c) Guarantor shall fail to pay any principal of or premium or
interest on any of its Debt that is outstanding in a principal or
notional amount equal to or in excess of $100,000,000 in the aggregate
for all such unpaid Debt when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist
under the agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate the maturity of such Debt; or any such Debt shall be
declared due and payable, or be required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the scheduled maturity thereof; or
(d) Guarantor or any Subsidiary of Guarantor which represents
more than 25% of Guarantor's assets on a consolidated basis (each such
Subsidiary, a "Significant Subsidiary") shall (1) apply for or consent
to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (2) make a general assignment for the benefit of
its creditors, (3) commence a voluntary case under the U.S. Bankruptcy
Code (as now or hereafter in effect) or any similar law of any
applicable jurisdiction, (4) file a petition seeking to take advantage
of any other law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or readjustment of debts, or (5) fail to
controvert in a timely and appropriate manner, or acquiesce in writing
to, any petition filed against it in an involuntary case under the U.S.
Bankruptcy Code or any similar law of any applicable jurisdiction; or a
proceeding or case shall be commenced, without the application or
consent of Guarantor or any Significant Subsidiary, in any court of
competent jurisdiction, seeking (x) its liquidation, reorganization,
dissolution or winding up, or the composition or readjustment of its
debts, (y) the appointment of a trustee, receiver, custodian,
liquidator or the like of Guarantor or the relevant Significant
Subsidiary, as the case may be (as applicable), or of all or any
substantial part of its assets, or (z) similar relief in respect of
Guarantor or the relevant Significant Subsidiary (as the case may be)
under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding
or case shall continue unstayed and in effect for a period of 90 or
more days; or a court or governmental agency having jurisdiction in the
premises shall enter a decree or order for relief in respect of
Guarantor or any Significant Subsidiary in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of Guarantor or
any Significant Subsidiary or for any substantial part of its property
or ordering the winding up or liquidation of its affairs, and such
decree or order shall continue unstayed and in effect for a period of
90 or more days; or Guarantor or any Significant Subsidiary shall admit
in writing its inability to pay its debts generally as they become due
or any action shall be taken by Guarantor or any Significant Subsidiary
in furtherance of any of the aforesaid purposes; or
(e) There has been a Change of Control (as defined herein) in
Guarantor. For purposes of this Guarantee, "Change of Control" shall
mean the direct or indirect acquisition by any person (as such term is
defined in Section 13(d) of the Securities Exchange Act of 1934, as
amended) of beneficial ownership of more than 51% of the outstanding
shares of the capital stock of Guarantor entitled to vote generally for
the election of directors of Guarantor; or
(f) This Guarantee or the Southern Equity Agreement shall fail
to be in full force and effect, or Guarantor so asserts in writing.
The occurrence of a Guarantor Event of Default will not result
in the acceleration of any Advances but, instead, will result in: (A)
with respect to those Projects which have not achieved Substantial
Completion, acceleration of those Advances outstanding with respect to
such Projects and Guarantor shall be obligated to pay (i) to the Agent
for the account of the Lenders and on behalf of the Borrower, an amount
equal to the principal amount of such Advances, together with interest
related thereto, and (ii) all Commercial Paper with respect to such
Projects and for which one or more CP Commitment Reservations are then
outstanding, upon the maturity thereof, together with interest related
thereto, and (B) with respect to those Projects which have achieved
Substantial Completion but not Final Completion, an obligation on the
part of the Borrower (and an obligation on the part of Guarantor to
pay, on behalf of the Borrower) to (i) immediately prepay such amount
of the Advances then outstanding and (ii) pay, on the maturity date
thereof, all Commercial Paper for which one or more CP Commitment
Reservations are then outstanding, with respect to such Projects, in
each case, together with interested related thereto, as is equal, in
the aggregate, to the applicable Buydown Amounts for such Projects;
provided, that, failure to pay such amounts shall not cross-default any
other Advances (although the default rate of interest under the Credit
Agreement will be applicable thereto if any such Advances (or part
thereof) are not paid in full when due).
6. Enforcement. Guarantor hereby agrees that the Agent shall have the
right to directly enforce the provisions hereof which are binding upon Guarantor
against Guarantor and Guarantor hereby agrees to pay within 30 days of demand
all costs, including reasonable attorneys' fees, incurred with respect to the
enforcement of such provisions of this Guarantee against Guarantor.
7. No Subrogation. Notwithstanding any payment or payments made or
caused to be made by Guarantor hereunder, Guarantor shall not be entitled to be
subrogated to any of the rights of the Lenders, nor shall Guarantor seek any
reimbursement or indemnification from the Borrower in respect of payments made
or caused to be made by Guarantor hereunder prior to the date when (a) all of
the Guaranteed Obligations and all other amounts payable under this Guarantee
shall have been paid in full in cash or by wire transfer of immediately
available funds; and (b) the Commitments shall have been terminated and all
Advances, interest thereon and all other amounts owing by the Borrower under the
Credit Agreement shall have been paid in full in cash or by wire transfer of
immediately available funds. If any amount shall be paid to Guarantor as a
result of such subrogation rights at any time prior to the date when (i) all of
the Guaranteed Obligations and all other amounts payable under this Guarantee
shall have been paid in full in cash or by wire transfer of immediately
available funds; and (ii) the Commitments shall have been terminated and all
Advances, interest thereon and all other amounts owing by the Borrower under the
Credit Agreement shall have been paid in full in cash or by wire transfer of
immediately available funds, such amount shall be held by Guarantor in trust for
the Lenders, segregated from other funds of Guarantor, and shall be turned over
to the Agent for the benefit of the Lenders, in the exact form received by
Guarantor (duly endorsed by Guarantor to the Agent for the benefit of itself and
the other Lenders, if required), to be applied against obligations of the
Borrower under the Credit Agreement in such order as the Agent acting pursuant
to the Credit Agreement may elect.
8. No Setoff. Guarantor shall not have the right to withhold
or offset against any payment due for any reason including, without
limitation, any dispute between the Borrower and Guarantor.
9. Third Party Beneficiaries. The agreements of the parties
hereto are intended to benefit the Lenders and their respective permitted
successors and assigns.
10. Counterparts. This Guarantee may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. Delivery of an
executed counterpart of this Guarantee by telecopier shall be effective as
delivery of an original executed counterpart of this Guarantee.
11. Notices. Except as otherwise expressly provided herein, (a) all
notices and other communications provided for hereunder shall be provided in
writing and shall be sent by personal delivery, telecopy, overnight courier or,
if such courier service is not available, by certified mail with postage prepaid
to any party at the address set forth below its signature on this Guarantee, or
at such other address as shall be designated by a party in a written notice to
the other parties hereto and (b) all such notices and communications shall be
effective seven (7) days after being deposited in the mails in the manner as
aforesaid, when delivered if sent by personal delivery, one (1) day after
delivery to the courier if sent by overnight courier, or when sent by
telecopier, upon confirmation of receipt.
12. Successors and Assigns. This Agreement shall inure to the benefit
of the parties hereto, the Agent and each of the Lenders, as third party
beneficiaries, and their successors and assigns permitted under the terms of the
Credit Agreement, and shall bind the heirs, executors, administrators, personal
representatives, successors and assigns of such Persons. Guarantor shall not
assign or otherwise transfer all or any of its obligations hereunder. Any
assignment by the Agent or the Lenders shall be in accordance with the terms and
conditions of Section 8.07 of the Credit Agreement.
13. Amendments. This Guarantee or any provision hereof may not be
amended, canceled, modified, changed or waived by any party hereto without the
prior written consent of the Agent (acting upon the instructions of those
Lenders holding at least 75% of the outstanding Advances or, if none, 75% of the
Commitments; provided, that, no amendment, waiver or consent shall, unless in
writing and signed by the Agent with the consent of all of the Lenders (a)
reduce or limit the obligations of the Guarantor hereunder, release the
Guarantor hereunder or otherwise limit the Guarantor's liability with respect to
the Guaranteed Obligations; (b) postpone any date fixed for payment hereunder in
respect of Guaranteed Obligations; or (c) change the number of Lenders or the
percentage of the Commitments that, in each case, shall be required for the
Lenders or any of them to take any action hereunder; provided, further that the
Guarantor, the Borrower and the Agent may, from time to time, amend this
Guarantee by way of one or more Completion Guarantee Supplements in the form of
Exhibit A hereto. Any such amendment, cancellation, modification, change or
waiver must be by a written instrument signed by Guarantor, the Borrower and the
Agent.
14. Governing Law. This Guarantee is a contract made under
the Laws of the State of New York of the United States and shall for all
purposes be governed by and construed in accordance with the Laws of such
State.
15. Waiver of Jury Trial. Each of the Guarantor and the Lenders and the
Agent hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Guarantee or the actions of the Agent or any
Lender in the negotiation, administration, performance or enforcement thereof.
16. No Waiver. No failure to exercise and no delay in exercise, on the
part of the Agent or any Lender, of any right, remedy, power or privilege
provided herein or by statute or at Law or in equity shall operate as a waiver
thereof; nor shall any single or partial exercise of any thereof preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The remedies herein provided are cumulative and not
exclusive of any remedies provided by Law.
IN WITNESS WHEREOF, Guarantor has executed this Completion Guarantee as
of the date first above written.
The Southern Company
By:____________________________________________
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
Address for Notices:
000 Xxxxxxxxx Xxxxxx, X.X.
Bin 000X / 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Agreed and accepted:
Southern Power Company
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
Address for Notices:
000 Xxxxxxxxx Xxxxxx, X.X.
Bin 000X / 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Citibank, N.A. (as Agent)
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Address for Notices:
0 Xxxxx Xxx
Xxxxx 000
Xxx Xxxxxx, XX 00000
Facsimile: (000)-000-0000
Attention: Xxxx Xxxxxx
Schedule I to Completion Guarantee
Schedule 1 to
Completion Guarantee
List of Projects
Autaugaville 1 Project
Autaugaville 2 Project
Goat Rock 1 Project
Goat Rock 2 Project
Xxxxxxx Project
Exhibit A
Form of Completion Guarantee Supplement
Citibank, N.A.,
as Agent
under the Credit Agreement referred to below
0 Xxxxx Xxx
Xxxxx 000
Xxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
[date]
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement, dated as of [ ], 2001
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement") by and among Southern Power Company (the "Borrower"), the
Lenders and the Co-Arrangers party thereto, Citibank, N.A., as administrative
agent for the Lenders (the "Agent"), and Xxxxxxx Xxxxx Barney Inc., as lead
arranger and syndication agent; and (b) the Completion Guarantee, dated as of [
], 2001 (as amended, restated, supplemented or otherwise modified from time to
time, the " Completion Guarantee") between The Southern Company ("Southern"),
the Borrower and the Agent. Terms defined in the Completion Guarantee, including
by reference to the Credit Agreement, are used herein with the same meaning.
Each of the Borrower and Southern hereby agrees in favor of the Agent
that, with effect on and from the date hereof, the following Subsequent Project
shall be a "Project" for all purposes under the Completion Guarantee:
[ Describe Project ],
and Schedule 1 to the Completion Guarantee shall be supplemented with Schedule I
to this Completion Guarantee Supplement.
Southern hereby confirms that each of the representations and
warranties set forth in Section 4 of the Completion Guarantee are true and
correct in all material respects as of the date hereof and, if different from
the date hereof, as of the date of the first Utilization with respect to the
Project set forth in Schedule I to this Completion Guarantee Supplement, before
and after giving effect to such Utilization and to the application of the
proceeds therefrom (or, if such Utilization is a CP Commitment Reservation,
after giving effect to the application of the proceeds of the Commercial Paper
for which such CP Commitment Reservation was requested), as though made on and
as of such date (and each of the giving of this Completion Guarantee Supplement
and the acceptance by the Borrower of such proceeds shall constitute a
representation and warranty made herein, with respect to Section 4 of the
Completion Guarantee, by Southern to such effect).
Southern hereby confirms, in favor of each of the Borrower and the
Agent that its obligations under the Completion Guarantee shall, on and from the
date hereof, extend in all respects, in accordance with the terms thereof, to
the Project set forth in Schedule I hereto.
Except as expressly amended hereby, all of the provisions of the
Completion Guarantee shall continue to be, and shall remain, in full force and
effect in accordance with its terms.
This Completion Guarantee Supplement shall be construed as
supplementing and forming part of the Completion Guarantee and shall be read
accordingly.
This Completion Guarantee Supplement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement. Delivery of an
executed counterpart of this Completion Guarantee Supplement by telecopier shall
be effective as delivery of an original executed counterpart of this Completion
Guarantee Supplement.
This Completion Guarantee Supplement shall be governed by, and
construed in accordance with, the Laws of the State of New York.
THE SOUTHERN COMPANY
By:
----------------------
Name:
Title:
SOUTHERN POWER COMPANY
By:
----------------------
Name:
Title:
Accepted by:
CITIBANK, N.A., as Agent
By:
---------------------------------
Name:
Title:
Schedule I to Completion Guarantee Supplement
Schedule I to
Completion Guarantee Supplement
Subsequent Project
