EXHIBIT 1
$400,000,000
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series A 5.30% Senior Notes due February 1, 2007
UNDERWRITING AGREEMENT
January 29, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Southern Company Capital Funding, Inc., a Delaware corporation
("SoCo Capital"), and The Southern Company, a Delaware corporation (the
"Company" and, together with SoCo Capital, the "Offerors"), confirm their
agreement (the "Agreement") with you and each of the other Underwriters named in
Schedule I hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom you are acting as representative (in such capacity, you shall
hereinafter be referred to as the "Representative"), with respect to the sale by
SoCo Capital and the purchase by the Underwriters, acting severally and not
jointly, of the respective principal amount of Series A 5.30% Senior Notes due
February 1, 2007 of SoCo Capital (the "Notes") set forth in Schedule I. The
Notes will be guaranteed by the Company with respect to interest and principal,
including payments on acceleration, redemption and otherwise (the "Notes
Guarantee") pursuant to the terms of the Indenture (hereinafter defined). The
Notes and the related Notes Guarantee are referred to herein as the
"Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Notes as soon as the Representative deems advisable
after this Agreement has been executed and delivered.
The Notes will be issued pursuant to an Indenture, dated as of
February 1, 2002 (the "Base Indenture"), among SoCo Capital, the Company and The
Bank of New York, as trustee (the "Trustee"), and a first supplemental indenture
to the Base Indenture, dated as of February 1, 2002 (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), among SoCo Capital, the Company and the
Trustee.
Section 1. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Offerors jointly and severally represent and warrant to
each Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos.
333-65178, ▇▇▇-▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇-▇▇ and 333-65178-03), in
respect of the Notes, the Notes Guarantee and certain other
securities ("Registered Securities") has been prepared and filed
in accordance with the provisions of the Securities Act of 1933,
as amended (the "Securities Act"), with the Securities and
Exchange Commission (the "Commission"); such registration
statement, as amended, 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, as
amended, 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 Securities
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
Registered Securities, 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 Securities 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 "Exchange
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 Exchange Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; the Prospectus, as
supplemented by a preliminary prospectus supplement dated January
28, 2002 relating to the Notes, including any documents
incorporated by reference therein as of such date, being herein
called the "Preliminary Supplemented Prospectus"; and the
Prospectus as amended or supplemented in final form by a
prospectus supplement relating to any of the Registered
Securities in the form in which it is filed with the Commission,
pursuant to Rule 424(b) under the Securities Act in accordance
with Section 3(g) 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 Exchange 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 Exchange
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 neither SoCo Capital nor the Company
makes any warranty or representation to any Underwriter with
respect to: (A) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to SoCo
Capital or the Company by an Underwriter through you expressly
for use in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus; or (B) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Description of the Series A Senior
Notes - Book Entry Only Issuance -- The Depository Trust
Company."
(c) The Registration Statement, the Prospectus, and to the
extent not used to confirm sales of the Notes, the Preliminary
Supplemented Prospectus, and the Final Supplemented Prospectus
comply, in all material respects, in form and substance, with the
applicable provisions of the Securities Act, the Exchange Act,
the Trust Indenture Act of 1939, as amended (the "TIA") and the
rules and regulations of the Commission thereunder and neither
the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus, nor the Final Supplemented Prospectus
contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except
that neither the Company nor SoCo Capital makes any warranties or
representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility
(Form T-1) (collectively, the "Form T-1") under the TIA, (B)
statements or omissions made in the Registration Statement, the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in writing to SoCo Capital or the Company by an
Underwriter expressly for use therein or (C) any information set
forth in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus under the caption "Description of the
Series A 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.
(f) 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 not
been any material adverse change or, to the best of the Company's
knowledge, any development involving a prospective material
adverse change in or affecting the business, properties or
financial condition of SoCo Capital (it being understood that any
such change involving only the Company shall not constitute such
a change with respect to SoCo Capital).
(g) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Delaware, and has due corporate authority to conduct
the 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 deliver the Notes Guarantee.
(h) SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Delaware and has due corporate authority to conduct
its business, as described in the Registration Statement and the
Prospectus, to enter into and perform its obligations under this
Agreement and the Indenture and to issue the Notes.
(i) This Agreement has been duly authorized, executed and
delivered by each of the Offerors.
(j) The Indenture has been duly authorized by SoCo Capital
and the Company and, on the Closing Date, will have been duly
executed and delivered by SoCo Capital and 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 each of SoCo
Capital and the Company, enforceable against each 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 TIA.
(k) The issuance and delivery of the Notes have been duly
authorized by SoCo Capital and, on the Closing Date, the Notes
will have been duly executed by SoCo Capital 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 SoCo Capital, enforceable against SoCo
Capital 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.
(l) The Notes Guarantee 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 Indenture by the Trustee, the Notes
Guarantee 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
enforcement thereof may be limited by the Enforceability
Exceptions.
(m) Neither the Company nor SoCo Capital is and, after
giving effect to the offering and sale of the Notes, will be an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(n) The execution, delivery and performance by the Offerors
of this Agreement and the Indenture, by the Company of the Notes
Guarantee and by SoCo Capital of the Notes and the consummation
by the Offerors of the transactions contemplated herein and
therein and compliance by the Offerors with their respective
obligations hereunder and thereunder shall have been duly
authorized by all necessary action (corporate or otherwise) on
the part of the Offerors and do not and will not result in any
violation of the charter or bylaws of the Company or SoCo Capital
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 SoCo Capital or the
Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which
SoCo Capital or the Company is a party or by which either of them
may be bound or to which any of their properties may be subject
(except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to SoCo
Capital or 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 SoCo Capital or the
Company, or any of their respective properties.
(o) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in
connection with the issuance and sale of the Notes or the
offering of the Notes or the transactions contemplated in this
Agreement, except (A) such as may be required under the
Securities 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 TIA; and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws.
Section 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
------------------------------------------
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, SoCo Capital agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from SoCo Capital, the principal
amount of Notes set forth in Schedule I to this Agreement
opposite the name of such Underwriter, plus any additional amount
of Notes that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof, at a price equal
to 99.235% of the principal amount thereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Notes shall be made at the offices of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ at 10:00 A.M., New York time, on February 1, 2002 (unless
postponed in accordance with the provisions of Section 10) or
such other time, place or date as shall be agreed upon by the
Representative, SoCo Capital and the Company (such time and date
of payment and delivery being herein called the "Closing Date").
Payment shall be made to SoCo Capital, by wire transfer in
federal funds at the Closing Date, against delivery to the
Representative for the respective accounts of the Underwriters of
certificates for the Notes to be purchased by them. The delivery
of the 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
Representative shall accept such delivery. It is understood that
each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Notes which it has agreed to
purchase. The Representative, individually and not as
Representative of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Notes to
be purchased by any Underwriter whose funds have not been
received by the Closing Date, but such payment shall not relieve
such Underwriter from its obligations hereunder.
(c) The certificate(s) for the Notes will be made available
for examination and packaging by the Representative not later
than 12:00 Noon, New York time, on the last business day prior to
the Closing Date.
Section 3. COVENANTS OF THE OFFERORS.
-------------------------
Each of the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, 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 Representative orally of the issuance of any stop order under
the Securities 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
Offerors 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 each Underwriter 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 Securities Act or the
Exchange Act.
(b) The Offerors will furnish the Underwriters with copies
of each amendment and supplement to the Prospectus, the
Preliminary Supplemented Prospectus and the Final Supplemented
Prospectus relating to the offering of the 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 Notes by an Underwriter or
dealer, any event relating to or affecting the Company, or of
which the Company shall be advised in writing by the
Representative, 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 Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus in order to make the
Preliminary Supplemented Prospectus or 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 Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus or
to file under the Exchange Act any document incorporated by
reference in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus in order to comply with the Securities
Act or the Exchange Act, the Company forthwith will (i) notify
the Underwriters to suspend solicitation of purchases of the
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
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus which will supplement or amend the Preliminary
Supplemented Prospectus or 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 Preliminary Supplemented Prospectus
or 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 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 Securities 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 Exchange 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
Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Notes and, to the extent required or
advisable, the Notes Guarantee, for offering and sale under the
applicable securities laws of such states and the other
jurisdictions of the United States as the Representative may
designate; provided, however, that neither of the Offerors shall
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 Securities
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) During a period of 15 days from the date of this
Agreement, neither SoCo Capital nor the Company will, without the
Representative's prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Notes, any security convertible into or
exchangeable into or exercisable for the Notes or any debt
securities substantially similar to the Notes (except for the
Notes issued pursuant to this Agreement and the Series B Floating
Rate Senior Notes due February 1, 2004).
(f) As soon as practicable after the date of this Agreement,
and in any event within the time prescribed by Rule 424 under the
Securities Act, the Company will file the Final Supplemented
Prospectus with the Commission and will advise the Representative
of such filing and will confirm such advice in writing.
Section 4. PAYMENT OF EXPENSES.
-------------------
The Company will pay all expenses incident to the performance
of each Offeror's 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 Notes to the Underwriters, (iii) the
fees and disbursements of the Company's and SoCo Capital's counsel and
accountants, (iv) the qualification of the Notes and, to the extent required or
advisable, the Notes Guarantee, 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 Preliminary Supplemented Prospectus and
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, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Notes, (ix) any fees payable in connection with the rating of the Notes, (x)
the cost and charges of any transfer agent or registrar and (xi) the cost of
qualifying the 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 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 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 Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus, or any supplement thereto,
is required pursuant to Rule 424, the Preliminary Supplemented
Prospectus or 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) Orders of 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
Representative, 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 Dat the Representative shall have
received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP, counsel for the Company, substantially in the
form attached hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Pillsbury
Winthrop LLP, counsel to the Trustee, substantially in
the form attached hereto as Schedule III.
(3) The favorable opinion, dated as of the Closing Date, of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters,
substantially in the form attached hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, 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
Offerors, whether or not arising in the ordinary course
of business, and the Representative shall have received
a certificate of the Chairman of the Board, the
President or any Vice President of the Company and SoCo
Capital, 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 Offerors have complied with
all agreements and satisfied all conditions on their
respective parts 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.
(5) On the Closing Date, the Representative shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated the
Closing Date to the effect that: (A) they are
independent public accountants with respect to the
Company within the meaning of the Securities Act and
the rules and regulations under the Securities 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 Exchange Act and the rules and
regulations under the Exchange 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 American Institute of
Certified Public Accountants ("AICPA") for a review of
interim financial information as described in Statement
on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if
any, of the Company incorporated in the Final
Supplemented Prospectus and of 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 generally accepted
accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form
10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts of Operating
Revenues, Earnings From Continuing Operations Before
Interest and Income Taxes, Earnings From Continuing
Operations Before Cumulative Effect of Accounting
Change and Consolidated Net Income and the unaudited
Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis) 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 or were not determined
on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in 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
audited 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 debt securities or stock
to satisfy mandatory or optional redemption provisions
relating thereto, or (vi) are disclosed in such letter,
and except for any change in long-term debt of a
subsidiary of the Company which does not exceed
$20,000,000, unless the aggregate of all such changes
exceeds $200,000,000, in which case this exception does
not apply; and (5) the unaudited amounts of Operating
Revenues, Earnings From Continuing Operations Before
Interest and Income Taxes, Earnings From Continuing
Operations Before Cumulative Effect of Accounting
Change and Consolidated Net Income and the unaudited
Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis) 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.
(6) On the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters, shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the 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 Offerors, in
connection with the issuance and sale of the Notes as herein
contemplated shall be satisfactory in form and substance to the
Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Underwriters.
(7) That no amendment or supplement to the Registration
Statement, the Preliminary Supplemented Prospectus 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 Exchange 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 any Underwriter or Underwriters) which, in the
reasonable judgment of the Representative, shall materially
impair the marketability of the Notes.
(8) The Offerors shall have performed their respective
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 Representative by notice to the Offerors 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 OFFERORS.
--------------------------------------------
The obligations of the Offerors 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 Offerors jointly and severally agree 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 Securities Act
or Section 20(a) of the Exchange 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 Securities Act, Exchange Act or
otherwise, and to reimburse the Underwriters 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, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus, if the
Offerors shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the Exchange
Act which are incorporated therein by reference, in the Registration Statement,
the Preliminary Prospectus, the Prospectus, the Preliminary Supplemented
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 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, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus, if the Offerors 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 Notes to any person if a
copy of the Preliminary Prospectus, the Prospectus, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference), 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,
the Preliminary Supplemented 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 Offerors on account of its agreement contained in this
Section 7, to notify the Offerors in writing of the commencement thereof but the
omission of such Underwriter so to notify the Offerors of any such action shall
not release the Offerors 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 the Underwriters or any such person controlling such
Underwriters and such Underwriter shall notify the Offerors of the commencement
thereof as above provided, the Offerors shall be entitled to participate in
(and, to the extent that they shall wish, including the selection of counsel, to
direct) the defense thereof, at their own expense. In case the Offerors elect 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 controlling person unless the employment of such counsel has been
authorized in writing by the Offerors 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, SoCo Capital, their directors and such of their
officers who have signed the Registration Statement, and each other Underwriter
and each person, if any, who controls the Offerors or any such other Underwriter
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act to the same extent and upon the same terms as the indemnity
agreement of the Offerors 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, the Preliminary
Supplemented 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 Offerors by, or through the Representative on behalf
of, 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 Offerors
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 Offerors and shall survive
delivery of the Notes to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice to the
Offerors, 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,
(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, (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 or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the 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
Offerors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable to perform their
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, for the reasonable fees and disbursements
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an amount not
exceeding a total of $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Notes and, upon such
reimbursement, the Offerors shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
------------------------------------------
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Notes that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative 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 Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the 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 number of Defaulted Securities exceeds 10% of the 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 Representative or the Offerors 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 the Final
Supplemental 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
Representative at ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇, Registration; notices to the Offerors shall be
directed to the Company or SoCo Capital c/o: Southern Company Services, Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇.
Section 12. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon the Underwriters, SoCo Capital, 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, SoCo Capital 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, SoCo Capital and the Company
and their respective successors, and said controlling persons and officers,
directors and trustees and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from any
Underwriter 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 SoCo Capital and the Company a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Underwriters, SoCo Capital and the
Company in accordance with its terms.
Very truly yours,
THE SOUTHERN COMPANY
By:
-------------------------------
Title:
SOUTHERN COMPANY CAPITAL
FUNDING, INC.
By:
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇▇, SACHS & CO.
By:
-----------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
Principal Amount of
Name of Underwriter Notes
▇▇▇▇▇▇▇, Sachs & Co. $240,000,000
Barclays Capital Inc. 32,000,000
Commerzbank Capital Markets Corp. 32,000,000
First Union Securities 32,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 32,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 32,000,000
----------
TOTAL: $400,000,000
============
Schedule II
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
________ __,2002
▇▇▇▇▇▇▇, Sachs & Co., as Representative
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SOUTHERN COMPANY CAPITAL FUNDING, INC.
SERIES A____% SENIOR NOTES DUE ____
Ladies and Gentlemen:
We have acted as counsel to The Southern Company (the
"Company") in connection with (i) the issuance and sale by Southern Company
Capital Funding, Inc. ("SoCo Capital") of $400,000,000 aggregate principal
amount of its Series A___% Senior Notes due _____ (the "Notes") pursuant to an
Indenture dated as of __________, among SoCo Capital, the Company and The Bank
of New York, as trustee, as supplemented by the First Supplemental Indenture
dated as of __________ __, 2002 (collectively, the "Indenture"); and (ii) its
issuance of a guarantee (the "Notes Guarantee") of the Notes pursuant to the
terms of the Indenture. The Notes are being sold to you today pursuant to the
terms of a Underwriting Agreement dated __________, 2002 (the "Underwriting
Agreement"), among the Company and SoCo Capital and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. This opinion is being delivered to you as Representative
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 (Nos. 333-65178, ▇▇▇-▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇-▇▇ and 333-65178-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act") and
the prospectus dated ___________, 2001, as supplemented by a prospectus
supplement dated __________, 2002 (the "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, 2000, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended ________________________ and the Current Reports
on Form 8-K of the Company dated _______________ (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
certificates representing the Notes, of which we have examined specimens), 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.
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 incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has due corporate authority to conduct the 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 Indenture and the Underwriting
Agreement.
2. SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware and has due corporate authority to conduct the business, as described
in the Prospectus, to enter into and perform its obligations under the
Underwriting Agreement and the Indenture and to issue the Notes.
3. The execution, delivery and performance by the Offerors 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 Offerors.
4. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and delivery of the Notes
and the Notes Guarantee have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Notes Guarantee; the issuance and
delivery of the Notes and the Notes Guarantee conform in all material respects
with the terms of such orders; and no other order, consent or other
authorization or approval of any United States federal 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 delivery of the Notes and the Notes
Guarantee in accordance with the terms of the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and
delivered by SoCo Capital and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of SoCo Capital, enforceable against SoCo Capital in accordance with
its terms, subject to the qualifications that the enforceability of SoCo
Capital'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 each of the Indenture and the Notes Guarantee conforms as
to legal matters in all material respects to the description thereof in the
Prospectus.
6. The Notes have been duly authorized and executed by SoCo
Capital and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of SoCo Capital, enforceable against SoCo Capital in
accordance with their terms, subject to the qualifications that the
enforceability of SoCo Capital'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 Prospectus.
7. Each of the Indenture and the Notes Guarantee has been duly
authorized, executed and delivered by the Company and 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 Notes Guarantee 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 Guarantee conforms as to legal
matters in all material respects to the description thereof in the Prospectus.
8. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
9. The execution, delivery and performance by the Company of
the Indenture and the performance by the Company of the Notes Guarantee do not
and will not result in any violation of the Certificate of Incorporation or the
By-Laws 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 any other agreement or instrument known to us 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 such conflicts, breaches or defaults or
liens, charges or encumbrances that would not have a material adverse effect on
the condition (financial or otherwise) of the Company), (B) any existing
applicable law, rule or regulation applicable to the Company (other than the
securities or blue sky laws of any jurisdiction, as to which we express no
opinion) or (C) any judgment, order or decree known to us 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.
10. Neither the Company nor SoCo Capital is and, after giving
effect to the offering and sale of the Notes, will be an "investment company" or
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 5, 6 and 7 above.
In the course of the preparation by the Company of the Registration Statement,
the Prospectus and the Exchange Act Documents, we participated in conferences
with certain officers and employees of the Company, with representatives of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and with your counsel. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the 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 Prospectus, as of
___________, ____, 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 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 its effective date (including the Exchange Act
Documents on file with the Commission as of such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits 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 Prospectus or the Exchange Act Documents.
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 Delaware 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, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on this opinion
in giving their opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule III
[Letterhead of Pillsbury Winthrop LLP]
__________ __, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as Representative
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series A____% Senior Notes due _______
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York (the "Bank")
in connection with (a) the Senior Note Indenture, dated as of February 1, 2002
(the "Original Indenture"), among The Southern Company (the "Company"), Southern
Company Capital Funding, Inc. ("SoCo Capital") and the Bank, as Trustee and (b)
the First Supplemental Indenture dated as of ___, 2002 (together with the
Original Indenture, herein called the "Indenture"), among the Company, SoCo
Capital and the Bank, as Trustee.
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 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 has duly executed and delivered the Indenture,
and, insofar as the laws governing the trust powers of the
Bank are concerned and assuming due authorization, execution
and delivery thereof by SoCo Capital and the Company, the
Indenture 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 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 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,
PILLSBURY WINTHROP LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
__________ __, 2002
▇▇▇▇▇▇▇, Sachs & Co., as Representative
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series A______% Senior Notes due ______
Ladies and Gentlemen:
In connection with (i) the issuance and sale by Southern Company
Capital Funding, Inc. ("SoCo Capital") of $400,000,000 principal amount of its
Series A____% Senior Notes due ___________ (the "Notes") pursuant to an
Indenture dated as of __________, among Southern Company Capital Funding, Inc.
("SoCo Capital"), The Southern Company (the "Company"), and _________________,
as trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of _______________, (collectively, the "Indenture"); and (ii) the
Company's issuance of a guarantee (the "Notes Guarantee") of the Notes pursuant
to the terms of the Indenture, we have acted as counsel to you and the other
underwriters named in Schedule I (the "Underwriters") to the Underwriting
Agreement dated __________, among the Company, SoCo Capital and the Underwriters
for whom you are acting as Representative (the Underwriting Agreement"). This
opinion is being delivered to you pursuant to Section 5(c)(3) 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 (Nos. 333-65178, ▇▇▇-▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇-▇▇
and 333-65178-03) pertaining to the Notes (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act") and the related
prospectus dated ___________, 2001, as supplemented by a prospectus supplement
dated __________, 2002 (the "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, 2000, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended ___________________ and the Current Reports on
Form 8-K of the Company dated ___________________ (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 certificates
representing the Notes, of which we have examined specimens), 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.
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 laws of
the State of Georgia 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
Delaware and has due corporate authority to conduct its business as described in
the Prospectus and to enter into and perform its obligations under the Indenture
and the Underwriting Agreement.
2. SoCo Capital has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware and has due corporate authority to conduct the 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 the Underwriting Agreement and the
Indenture and to issue the Notes.
3. The execution, delivery and performance by the Offerors of
the Underwriting Agreement have been duly authorized by all necessary corporate
action of the Offerors, and the Underwriting Agreement has been duly executed
and delivered by the Offerors.
4. All orders, consents, or other authorizations or approvals
of the Commission legally required for the issuance and delivery of the Notes
and the Notes Guarantee have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Notes Guarantee; the issuance and
delivery of the Notes and the Notes Guarantee conform in all material respects
with the terms of such orders; and no other order, consent or other
authorization or approval of any United States federal governmental body is
legally required for the issuance and delivery of the Notes and the Notes
Guarantee in accordance with the terms of the Underwriting Agreement.
5. The Indenture has been duly authorized, executed and
delivered by SoCo Capital and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of SoCo Capital, enforceable against SoCo Capital in accordance with
its terms, subject to the qualifications that the enforceability of SoCo
Capital'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 Prospectus.
6. The Notes have been duly authorized and executed by SoCo
Capital and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered against payment therefor, will constitute valid and
binding obligations of SoCo Capital enforceable against SoCo Capital in
accordance with their terms, subject to the qualifications that the
enforceability of SoCo Capital'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 Prospectus.
7. Each of the Indenture and the Notes Guarantee has been duly
authorized, executed and delivered by the Company and 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 Notes Guarantee 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 Guarantee conforms as to legal
matters in all material respects to the description thereof in the Prospectus.
8. 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 Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 5, 6 and 7 above.
In the course of the preparation by the Company of the Registration Statement,
the Prospectus and the Exchange Act Documents, we participated in conferences
with certain officers and employees of the Company, with counsel for the
Company, and with representatives of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the 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 Prospectus,
as of __________ 2002, 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 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 its effective date (including the Exchange Act
Documents on file with the Commission as of such date), contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus (including the Exchange Act Documents)
contains any untrue statement of a material fact or omits 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 Prospectus or the Exchange Act Documents.
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,
the federal law of the United States, and to the extent set forth herein, the
laws of the States of Delaware and Georgia.
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 may rely on this opinion in giving its
opinions dated the date hereof pursuant to Section 5(c)(1) of the Underwriting
Agreement and Sections 102, 302 and 904 of the Indenture, insofar as such
opinions relate to matters of New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
