EXHIBIT 5.1
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308-2216
(404) 885-3000
December 16, 1998
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Southern Company Capital Funding, Inc.
1403 Foulk Road, Suite 102
Wilmington, Delaware 19803
Re: Registration Statement on Form S-3 (Nos. 333-64871,
333-64871-01, 333-64871-02, 333-64871-03, 333-64871-04)
Ladies and Gentlemen:
We are acting as counsel to The Southern Company ("Southern") and
Southern Company Capital Funding, Inc. ("Capital") in connection with the
above-referenced Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "Commission") on September 30, 1998, as amended on
December 16, 1998, including a preliminary prospectus and a preliminary
prospectus supplement (the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (1) Common Stock, par
value $5.00 per share (the "Common Stock"), to be issued by Southern, (2) Junior
Subordinated Notes (the "Junior Subordinated Notes") to be issued by Capital,
(3) Trust Preferred Securities (the "Preferred Securities") to be issued by
Southern Company Capital Trust V, Southern Company Capital Trust VI and Southern
Company Capital Trust VII (each, a "Trust"), (4) Southern's guarantees of the
Preferred Securities (the "Preferred Securities Guarantees"), (5) Southern's
guarantees of the Junior Subordinated Notes (the "Junior Subordinated Notes
Guarantees"), (6) Senior Notes (the "Senior Notes" and, together with the Junior
Subordinated Notes, the "Notes") to be issued by Capital, (7) Southern's
guarantees of the Senior Notes (the "Senior Notes Guarantees" and, together with
the Junior Notes Guarantees, the "Notes Guarantees"), (8) Stock Purchase
Contracts (the "Stock Purchase Contracts") to be issued by Southern or Capital,
(9) Stock Purchase Units (the "Stock Purchase Units") to be issued by Southern
or Capital and (10) Southern's guarantees of the Stock Purchase Contracts and
the Stock Purchase Units (the "Stock Purchase Guarantees" and, together with the
Notes Guarantees, the "Guarantees"). The Junior Subordinated Notes and the
Junior Subordinated Notes Guarantees will be issued pursuant to a subordinated
note indenture, as supplemented, among Southern, Capital and the trustee named
therein (the "Subordinated Note Indenture"), the Preferred Securities Guarantees
will be issued pursuant to a guarantee agreement between Southern and the
trustee named therein (the "Preferred Securities Guarantee Agreements") and the
Senior Notes and the Senior Notes Guarantees will be issued pursuant to a senior
note indenture, as supplemented, among Southern, Capital and the trustee named
therein (the "Senior Note Indenture" and, together with the Subordinated Note
Indenture, the "Indentures"), in each case in the respective forms filed as
exhibits to the Registration Statement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental indenture to be entered
into in connection with the issuance of any Note have been duly authorized,
executed and delivered by the trustee, Capital and Southern, the specific terms
of a particular Note have been duly authorized and established in accordance
with the applicable Indenture and such Note has been duly authorized, executed,
authenticated, issued and delivered in accordance with the applicable Indenture
and the applicable underwriting or other agreement, such Note will constitute a
valid and binding obligation of Capital, enforceable in accordance with its
terms, subject to (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
2. When the shares of Common Stock are issued and delivered in
accordance with the applicable underwriting or other agreement, such shares of
Common Stock will be validly issued, fully paid and non-assessable.
3. When the applicable Preferred Securities Guarantee Agreement has
been duly authorized, executed and delivered and the Preferred Securities have
been duly issued and delivered by the applicable Trust as contemplated by the
Registration Statement and any prospectus supplement relating thereto, the
Preferred Securities Guarantees will constitute valid and binding obligations of
Southern, enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws now
or hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
4. When the applicable purchase contract agreement and any related
pledge agreement have been duly authorized, executed and delivered by the
parties thereto, the Stock Purchase Units and Stock Purchase Contracts will
constitute valid and binding obligations of Southern or Capital, as the case may
be, enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws now
or hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
5. When the Indentures, any supplemental indenture and any document
evidencing the Stock Purchase Guarantees to be entered into in connection with
the issuance of any Guarantee have been duly authorized, executed and delivered
by the parties thereto, the specific terms of a particular Guarantee have been
duly authorized and established in accordance with the applicable Indenture and
any Guarantee has been duly authorized, executed, issued and delivered in
accordance with the applicable Indenture and the applicable underwriting or
other agreement, such Guarantee will constitute a valid and binding obligation
of Southern, enforceable in accordance with its terms, subject to (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now or hereafter in effect relating to or affecting the enforcement
of creditors' rights generally and (b) general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the Board of
Directors of Southern or Capital, as applicable, shall have duly established the
terms of such security and duly authorized the issuance and sale of such
security and such authorization shall not have been modified or rescinded; (ii)
the Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; (iii) the issuance of
the securities shall be in compliance with the pertinent provisions of the Act,
the Trust Indenture Act of 1939, as amended, the Public Utility Holding Company
Act of 1935, as amended, and the applicable securities or blue sky laws of
various jurisdictions; and (iv) there shall not have occurred any change in law
affecting the validity or enforceability of such security. We have also assumed
that none of the terms of any security to be established subsequent to the date
hereof, nor the issuance and delivery of such security, nor the compliance by
each of Capital and Southern with the terms of such security will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon each of Capital and Southern, or any restriction
imposed by any court or governmental body having jurisdiction over Capital or
Southern.
In rendering the foregoing opinions, with respect to matters of New
York law, we have relied on the opinion of Dewey Ballantine LLP attached hereto
as Annex I.
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,
the General Corporation Law of the State of Delaware and the federal law of the
United States and, to the extent set forth herein, the laws of the State of New
York.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the statements with respect to our firm under the
caption "Legal Matters" in the Registration Statement. In giving the foregoing
consent, we do not hereby admit that we come within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
Annex I
Dewey Ballantine LLP
New York, New York
December 16, 1998
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, Georgia 30308
Re: Registration Statement on Form S-3 (Nos. 333-64871,
333-64871-01, 333-64871-02, 333-64871-03, 333-64871-04)
Ladies and Gentlemen:
We are acting as counsel to the underwriters in connection with the
above-referenced Registration Statement on Form S-3 filed with the Securities
and Exchange Commission (the "Commission") on September 30, 1998, as amended on
December 16, 1998, including a preliminary prospectus and a preliminary
prospectus supplement (the "Registration Statement"), for the registration under
the Securities Act of 1933, as amended (the "Act"), of (1) Junior Subordinated
Notes (the "Junior Subordinated Notes") to be issued by Southern Company Capital
Funding, Inc. ("Capital"), (2) Trust Preferred Securities (the "Preferred
Securities") to be issued by Southern Company Capital Trust V, Southern Company
Capital Trust VI and Southern Company Capital Trust VII (each, a "Trust"), (3)
guarantees of The Southern Company ("Southern") relating to the Preferred
Securities (the "Preferred Securities Guarantees"), (4) guarantees of Southern
relating to the Junior Subordinated Notes (the "Junior Subordinated Notes
Guarantees"), (5) Senior Notes (the "Senior Notes" and, together with the Junior
Subordinated Notes, the "Notes") to be issued by Capital, (6) guarantees of
Southern relating to the Senior Notes (the "Senior Notes Guarantees" and,
together with the Junior Notes Guarantees, the "Notes Guarantees"), (7) Stock
Purchase Contracts (the "Stock Purchase Contracts") to be issued by Southern or
Capital, (8) Stock Purchase Units (the "Stock Purchase Units") to be issued by
Southern or Capital and (9) guarantees of Southern relating to the Stock
Purchase Contracts and the Stock Purchase Units (the "Stock Purchase Guarantees"
and, together with the Notes Guarantees, the "Guarantees"). The Junior
Subordinated Notes and the Junior Subordinated Notes Guarantees will be issued
pursuant to a subordinated note indenture, as supplemented, among Southern,
Capital and the trustee named therein (the "Subordinated Note Indenture"), the
Preferred Securities Guarantees will be issued pursuant to a guarantee agreement
between Southern and the trustee named therein (the "Preferred Securities
Guarantee Agreements") and the Senior Notes and the Senior Notes Guarantees will
be issued pursuant to a senior note indenture, as supplemented, among Southern,
Capital and the trustee named therein (the "Senior Note Indenture" and, together
with the Subordinated Note Indenture, the "Indentures"), in each case in the
respective forms filed as exhibits to the Registration Statement.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments as we have deemed necessary for the
purposes of rendering this opinion.
On the basis of the foregoing, we are of the opinion that:
1. When the Indentures and any supplemental indenture to be entered
into in connection with the issuance of any Note have been duly authorized,
executed and delivered by the trustee, Capital and Southern, the specific terms
of a particular Note have been duly authorized and established in accordance
with the applicable Indenture and such Note has been duly authorized, executed,
authenticated, issued and delivered in accordance with the applicable Indenture
and the applicable underwriting or other agreement, such Note will constitute a
valid and binding obligation of Capital, enforceable in accordance with its
terms, subject to (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors' rights generally and (b) general
principles of equity (regardless of whether considered in a proceeding at law or
in equity).
2. When the applicable Preferred Securities Guarantee Agreement has
been duly authorized, executed and delivered and the Preferred Securities have
been duly issued and delivered by the applicable Trust as contemplated by the
Registration Statement and any prospectus supplement relating thereto, the
Preferred Securities Guarantees will constitute valid and binding obligations of
Southern, enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws now
or hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
3. When the applicable purchase contract agreement and any related
pledge agreement have been duly authorized, executed and delivered by the
parties thereto, the Stock Purchase Units and Stock Purchase Contracts will
constitute valid and binding obligations of Southern or Capital, as the case may
be, enforceable in accordance with their terms, subject to (a) bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or similar laws now
or hereafter in effect relating to or affecting the enforcement of creditors'
rights generally and (b) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
4. When the Indentures, any supplemental indenture and any document
evidencing the Stock Purchase Guarantees to be entered into in connection with
the issuance of any Guarantee have been duly authorized, executed and delivered
by the parties thereto, the specific terms of a particular Guarantee have been
duly authorized and established in accordance with the applicable Indenture and
any Guarantee has been duly authorized, executed, issued and delivered in
accordance with the applicable Indenture and the applicable underwriting or
other agreement, such Guarantee will constitute a valid and binding obligation
of Southern, enforceable in accordance with its terms, subject to (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws now or hereafter in effect relating to or affecting the enforcement
of creditors' rights generally and (b) general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
In connection with the opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such security, (i) the Board of
Directors of Southern or Capital, as applicable, shall have duly established the
terms of such security and duly authorized the issuance and sale of such
security and such authorization shall not have been modified or rescinded; (ii)
the Registration Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; (iii) the issuance of
the securities shall be in compliance with the pertinent provisions of the Act,
the Trust Indenture Act of 1939, as amended, the Public Utility Holding Company
Act of 1935, as amended, and the applicable securities or blue sky laws of
various jurisdictions; and (iv) there shall not have occurred any change in law
affecting the validity or enforceability of such security. We have also assumed
that none of the terms of any security to be established subsequent to the date
hereof, nor the issuance and delivery of such security, nor the compliance by
each of Capital and Southern with the terms of such security will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon each of Capital and Southern, or any restriction
imposed by any court or governmental body having jurisdiction over Capital or
Southern.
We are members of the State Bar of New York and we do not express any
opinion concerning any law other than the law of the State of New York.
This opinion is furnished solely for your benefit in connection with
your rendering an opinion to Southern and Capital to be filed as Exhibit 5.1 to
the Registration Statement and we hereby consent to your attaching this opinion
as an annex to such opinion. This opinion may not be relied upon by you for any
other purpose, or quoted to or relied upon by any other person, firm or entity
for any purpose, without our prior written consent.
Very truly yours,
/s/Dewey Ballantine LLP
DEWEY BALLANTINE LLP