EXHIBIT 1
$25,000,000
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series B Floating Rate Senior Notes due February 1, 2004
UNDERWRITING AGREEMENT
January 30, 2002
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
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 (the "Underwriter") with respect to the
sale by SoCo Capital and the purchase by the Underwriter of $25,000,000
aggregate principal amount of the Series B Floating Rate Senior Notes due
February 1, 2004 (the "Notes"). 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 Underwriter proposes to make
a public offering of the Notes as soon as the Underwriter 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 second 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.
Pursuant to a Calculation Agent Agreement, dated as of
February 1, 2002 (the "Calculation Agent Agreement"), between SoCo Capital and
The Bank of New York, as calculation agent thereunder (the "Calculation Agent"),
SoCo Capital has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
Section 1. REPRESENTATIONS AND WARRANTIES.
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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, 333-65178-01,
333-65178-02 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 Underwriter, 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 Underwriter 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; 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 the 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 the Underwriter expressly
for use in the Final Supplemented Prospectus; or (B) any information set forth
in the Final Supplemented Prospectus under the caption "Description of the
Series B Senior Notes - Book Entry Only Issuance -- The Depository Trust
Company."
(c) The Registration Statement, the 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, 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 Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to SoCo Capital or the
Company by the Underwriter expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the caption "Description of the
Series B 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) The Calculation Agent Agreement has been duly authorized by SoCo
Capital and, on the Closing Date, will have been duly executed and delivered by
SoCo Capital, and assuming due authorization, execution and delivery of the
Indenture by the Trustee and the Calculation Agent Agreement by the Calculation
Agent, the Calculation Agent Agreement will, on the Closing Date, constitute a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions.
(n) 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").
(o) 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 Calculation Agent Agreement 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.
(p) 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 UNDERWRITER; 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 the Underwriter and the Underwriter agrees to purchase from SoCo
Capital, $25,000,000 aggregate principal amount of Notes at a price equal to
100% 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 Troutman Sanders, LLP, 600 Peachtree
Street, N.E., Atlanta, Georgia at 10:00 A.M., New York time, on February 1, 2002
or such other time, place or date as shall be agreed upon by the Underwriter,
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
Underwriter of certificates for the Notes to be purchased by it. Certificates
for the Notes shall be in such denominations and registered in such names as the
Underwriter may request in writing at least two business days before the Closing
Date. 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 Underwriter shall accept
such delivery.
(c) The certificate(s) for the Notes will be made available for examination
and packaging by the Underwriter 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 the
Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will deliver to the
Underwriter 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 Underwriter 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
Underwriter 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) and, from time to time, as
many copies of the Prospectus and the Final Supplemented Prospectus as the
Underwriter may reasonably request for the purposes contemplated by the
Securities Act or the Exchange Act.
(b) The Offerors will furnish the Underwriter with copies of each amendment
and supplement to the Prospectus and the Final Supplemented Prospectus relating
to the offering of the Notes in such quantities as the Underwriter 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 Underwriter, shall occur, which in the opinion of the Company or of
Underwriter's counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
Exchange Act any document incorporated by reference in the Final Supplemented
Prospectus in order to comply with the Securities Act or the Exchange Act, the
Company forthwith will (i) notify the Underwriter to suspend solicitation of
purchases of the Notes and (ii) at its expense, make any such filing or prepare
and furnish to the Underwriter a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Supplemented Prospectus
which will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will effect any
other necessary compliance. In case the 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 the
Underwriter, will furnish to the Underwriter, at the expense of the Underwriter,
a reasonable quantity of a supplemented or amended prospectus, or supplements or
amendments to the Final Supplemented Prospectus, complying with Section 10(a) of
the 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 Underwriter and Dewey Ballantine LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriter, 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 Underwriter 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 Underwriter'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 A 5.30% Senior Notes due February 1, 2007).
(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 Underwriter 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 Underwriter, (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 Underwriter 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 Underwriter of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Final Supplemented Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriter of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc. in connection with its review of the
offering contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee and the Calculation Agent, including the fees and
disbursements of counsel for the Trustee and the Calculation Agent in connection
with the Calculation Agent Agreement, 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.
Pursuant to the terms of the letter agreement, dated as of
January 30, 2002, between the Underwriter and the Company, the Underwriter shall
reimburse the Company for certain of the expenses described above in this
Section 4 incurred by the Company in connection with the offering of the Notes.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all the expenses incurred by them in connection with their
offering of the Notes, including fees and disbursements of their counsel, Dewey
Ballantine LLP.
Section 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS.
The obligations of the Underwriter 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 Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) 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
Underwriter or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to the
Underwriter, are deemed acceptable to the Underwriter and the Company and all
provisions of such order or orders hereafter entered shall be deemed acceptable
to the Underwriter and the Company unless within 24 hours after receiving a copy
of any such order any party to this Agreement shall give notice to the other
parties to the effect that such order contains an unacceptable provision).
(c) On the Closing Date the Underwriter shall have received:
(1) The opinion, dated the Closing Date, of Troutman Sanders LLP, counsel
for the Company, substantially in the form attached hereto as Schedule
I.
(2) The opinion, dated the Closing Date, of Pillsbury Winthrop LLP, counsel
to the Trustee and the Calculation Agent, substantially in the form attached
hereto as Schedule II.
(3) The favorable opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriter, substantially in the form attached
hereto as Schedule III.
(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 Underwriter 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 Underwriter shall have received from Arthur
Andersen 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 Arthur Andersen LLP make no
representations as to the sufficiency of such procedures for the Underwriter's
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, Dewey Ballantine LLP, counsel for the Underwriter,
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
Underwriter and Dewey Ballantine LLP, counsel for the Underwriter.
(7) That no amendment or supplement to the Registration Statement, the
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 Dewey Ballantine
LLP or shall contain information (other than with respect to an amendment or
supplement relating solely to the activity of the Underwriter) which, in the
reasonable judgment of the Underwriter, 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
Underwriter 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 Underwriter.
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
the Underwriter and each person, if any, who controls the 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 Underwriter and such
controlling person or persons, if any, for any legal or other expenses incurred
by them in connection with defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the Final
Supplemented Prospectus, if the Offerors shall furnish to the Underwriter 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 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 or the Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Underwriter for use
therein and except that this indemnity with respect to the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus, if the Offerors
shall have furnished any amendment or supplement thereto, shall not inure to the
benefit of the Underwriter (or of any person controlling the 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 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 or
the Final Supplemented Prospectus as supplemented or amended at the time of such
confirmation. The 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 the Underwriter so to notify the
Offerors of any such action shall not release the Offerors from any liability
which it may have to the 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 Underwriter or any such person
controlling the Underwriter and the 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, the 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
the 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) The Underwriter agrees, to indemnify and hold harmless the Company,
SoCo Capital, their directors and such of their officers who have signed the
Registration Statement, and each person, if any, who controls the Offerors
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 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 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 the Underwriter or
controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Notes to the Underwriter.
Section 9. TERMINATION OF AGREEMENT.
(a) The Underwriter 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 Underwriter, the marketability of the Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriter 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 Underwriter for the reasonable fees and disbursements of Dewey
Ballantine LLP and for the out of pocket expenses (in an amount not exceeding a
total of $10,000) reasonably incurred by the Underwriter 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. 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 Underwriter shall be
directed to Goldman, Sachs & Co., 85 Broad Street, New York, New York
10004, Attention: Don Hansen, Registration; notices to the Offerors shall
be directed to the Company or SoCo Capital c/o: Southern Company Services,
Inc., 270 Peachtree Street N.W., Atlanta, Georgia 30303, Attention:
Christopher J. Kysar.
Section 11. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon the Underwriter, 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 Underwriter,
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 Underwriter, 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 the Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 12. 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 13. 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 Underwriter, SoCo Capital and the Company
in accordance with its terms.
Very truly yours,
T THE SOUTHERN COMPANY
By:
-----------------------------------------------
Title:
SOUTHERN COMPANY CAPITAL
FUNDING, INC.
By:
-----------------------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
By:
-----------------------------------------
(Goldman, Sachs & Co.)
Schedule I
[Letterhead of TROUTMAN SANDERS LLP]
________ __,2002
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL FUNDING, INC.
SERIES B FLOATING RATE 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 $25,000,000 aggregate principal amount
of its Series B Floating Rate 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 Second 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 you, as the underwriter (the
"Underwriter"). Pursuant to a Calculation Agent Agreement, dated as of February
__, 2002 (the "Calculation Agent Agreement"), between SoCo Capital and The Bank
of New York, as calculation agent thereunder (the "Calculation Agent"), SoCo
Capital has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Notes. This opinion is being
delivered to you pursuant to Section 5(c)(1) of the Underwriting Agreement.
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, 333-65178-01,
333-65178-02 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 Dewey
Ballantine 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, the Calculation Agent 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. Each of the Calculation Agent Agreement and the Indenture
has been duly authorized, executed and delivered by SoCo Capital and, assuming
the due authorization, execution and delivery thereof by the Calculation Agent
and the Trustee, respectively, constitutes a valid and legally binding
instrument of SoCo Capital, enforceable against SoCo Capital in accordance with
its terms, subject to the qualifications that the enforceability of SoCo
Capital's obligations thereunder 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).
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
Arthur Andersen 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 Dewey Ballantine 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,
TROUTMAN SANDERS LLP
Schedule II
[Letterhead of Pillsbury Winthrop LLP]
__________ __, 2002
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series B Floating Rate 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 Second 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, and (c) the Calculation Agent Agreement,
dated as of ____________ (the "Calculation Agent Agreement"), between SoCo
Capital and the Bank as Calculation Agent.
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, the Calculation
Agent Agreement and certain resolutions adopted by the Board of Directors of the
Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of New York;
ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the
Indenture and Calculation Agent Agreement, has duly executed and
delivered the Indenture and the Calculation Agent Agreement, and,
insofar as the laws governing the trust powers of the Bank are
concerned and assuming due authorization, execution and delivery
thereof by SoCo Capital and the Company, each of the Indenture and the
Calculation Agent Agreement constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles
of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether
considered in a proceeding in equity or at law.
iii) the execution, delivery and performance by the
Bank of the Indenture and the Calculation Agent Agreement do not
conflict with or constitute a breach of the charter or bylaws of the
Bank; and
iv) no approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of
the Bank is required in connection with the execution and delivery by
the Bank of the Indenture or the Calculation Agent Agreement or the
performance by the Bank of its duties thereunder, except such as have
been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
PILLSBURY WINTHROP LLP
Schedule III
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2002
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
SOUTHERN COMPANY CAPITAL FUNDING, INC.
Series B Floating Rate Senior Notes due ______
Ladies and Gentlemen:
In connection with (i) the issuance and sale by Southern Company
Capital Funding, Inc. ("SoCo Capital") of $25,000,000 principal amount of its
Series B Floating Rate 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 Second 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. Pursuant to a
Calculation Agent Agreement date as of _____________ (the "Calculation Agent
Agreement"), between SoCo Capital and The Bank of New York, as calculation agent
thereunder (the "Calculation Agent"), SoCo Capital has engaged the Calculation
Agent to perform certain services with respect to the floating rate on the
Notes. This opinion is being delivered to you pursuant to Section 5(c)(3) of the
Underwriting Agreement.
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, 333-65178-01, 333-65178-02
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 Troutman Sanders 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, the
Calculation Agent 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. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by SoCo Capital and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of 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 and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the 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 Arthur Andersen 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 Troutman Sanders 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,
DEWEY BALLANTINE LLP