Exhibit 1.2
$500,000,000
Series 2007A 5.30% Senior Notes
due January 15, 2012
THE SOUTHERN COMPANY
UNDERWRITING AGREEMENT
January 11, 2007
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters named on Schedule I hereto
Ladies and Gentlemen:
The Southern Company, a Delaware corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 11 hereof) for whom you are acting as representatives (in such capacity
you shall hereinafter be referred to as the "Representatives"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $500,000,000 aggregate principal amount of the Series 2007A
5.30% Senior Notes due January 15, 2012 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 2007 (the "Base
Indenture"), to be entered into between the Company and ▇▇▇▇▇ Fargo Bank,
National Association, as trustee (the "Trustee"), as to be supplemented and
amended by a first supplemental indenture, dated as of January 18, 2007, to the
Base Indenture relating to the Senior Notes (the "Supplemental Indenture" and,
together with the Base Indenture, the "Indenture"), between the Company and the
Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-138503,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-138503-02), in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance with the
provisions of the Securities Act of 1933, as amended (the "1933 Act"), with
the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Underwriters,
became effective upon filing with the Commission in such form (except that
copies of the registration statement and any post-effective amendment
delivered to the Underwriters need not include exhibits but shall include
all documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement, as amended,
has been issued and no proceeding for that purpose or pursuant to Section
8A of the 1933 Act against the Company or related to the offering 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, as amended,
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as amended, as
used with respect to the Senior Notes, including the information deemed a
part thereof pursuant to Rule 430B(f)(1) under the 1933 Act on the date of
such registration statement's effectiveness for purposes of Section 11 of
the 1933 Act, as such Section applies to the Company and the Underwriters
for the Senior Notes pursuant to Rule 430B(f)(2) under the 1933 Act (the
"Effective Date"), including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 at the
Effective Date, being hereinafter called the "Registration Statement"; the
base prospectus relating to the Senior Notes and certain other securities
of the Company, in the form in which it has most recently been filed with
the Commission on or prior to the date of this Agreement relating to the
Senior Notes, being hereinafter called the "Basic Prospectus"; the Basic
Prospectus as amended and supplemented by a preliminary prospectus
supplement dated January 11, 2007 relating to the Senior Notes which has
been filed with the Commission pursuant to Rule 424(b) under the 1933 Act,
as it may be further amended and supplemented immediately prior to the
Applicable Time (as defined below) is hereinafter called the "Pricing
Prospectus"; the Basic Prospectus as amended or supplemented in final form,
including by a prospectus supplement relating to the Senior Notes in the
form in which it is filed with the Commission, pursuant to Rule 424(b)
under the 1933 Act in accordance with Section 4(e) hereof is hereinafter
called the "Final Supplemented Prospectus"; any reference herein to any
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the date of such Preliminary Prospectus, Basic
Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus, Basic
Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary Prospectus,
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Basic Prospectus, Pricing Prospectus or Final Supplemented Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement.
For purposes of this Agreement, the "Applicable Time" is 2:55
p.m. EST (New York Time) on the date of this Agreement; the documents
listed in Schedule III, taken together and attached hereto, are
collectively referred to as the "Pricing Disclosure Package."
(b) The documents incorporated by reference in the Registration Statement or
the Pricing Prospectus, when they were filed with the Commission, complied
in all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, as of such time
of filing, when read together with the Pricing Prospectus and any Permitted
Free Writing Prospectus (as defined in Section 3(a) hereof), 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 Final Supplemented Prospectus or any
further amendment or supplement thereto, when such documents are filed with
the Commission, will comply in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the Commission
thereunder and, when read together with the Final Supplemented Prospectus
as it otherwise may be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to the Underwriters
with respect to: (A) any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use in the Pricing
Prospectus, any Permitted Free Writing Prospectus and the Final
Supplemented Prospectus; or (B) any information set forth in the Pricing
Prospectus or the Final Supplemented Prospectus under the caption
"Description of the Series 2007A Senior Notes - Book-Entry Only Issuance -
The Depository Trust Company."
(c) The Registration Statement and the Final Supplemented Prospectus comply,
and any further amendments or supplements thereto, when any such amendments
become effective or supplements are filed with the Commission, as the case
may be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (hereinafter
defined) and the General Rules and Regulations of the Commission thereunder
and the Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus do not and will not, (i) as of the Effective
Date as to the Registration Statement and any amendment thereto, (ii) as of
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the Applicable Time as to the Pricing Disclosure Package and (iii) as of
the date of the Final Supplemented Prospectus as to the Final Supplemented
Prospectus or as of the date when any supplement is filed as to the Final
Supplemented Prospectus as further supplemented, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in the light of the
circumstances under which they were made, not misleading in the case of the
Pricing Disclosure Package and the Final Supplemented Prospectus as further
supplemented; except that the Company makes no warranties or
representations with respect to (A) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), (B) any
statements or omissions made in a Permitted Free Writing Prospectus, the
Registration Statement, the Pricing Prospectus or the Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through the Representatives
expressly for use therein or (C) any information set forth in the Pricing
Prospectus or the Final Supplemented Prospectus under the caption
"Description of the Series 2007A Senior Notes - Book-Entry Only Issuance -
The Depository Trust Company."
(d) Each Permitted Free Writing Prospectus listed on Schedule III hereto does
not include anything that conflicts with the information contained in the
Registration Statement, the Pricing Prospectus or the Final Supplemented
Prospectus and each such Permitted Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or representation to
the Underwriters with respect to any statement or omissions made in a
Permitted Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters through
the Representatives expressly for use therein.
(e) With respect to the Registration Statement, (i) the Registration
Statement is an "automatic shelf registration statement" (as defined in
Rule 405 under the 1933 Act) and (ii) the conditions for use of Form
S-3, as set forth in the General Instructions thereof, have been
satisfied.
(f) (A) At the time of filing of the Registration Statement, (B) at the
time of the most recent amendment to the Registration Statement for the
purposes of complying with Section 10(a)(3) of the 1933 Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus) and (C) at the time the Company or any person acting on its
behalf (within the meaning, for this clause only, of Rule 163(c) under
the 1933 Act) made any offer relating to the Senior Notes in reliance
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on the exemption of Rule 163 under the 1933 Act, the Company was a
"well-known seasoned issuer" (as defined in Rule 405 under the 1933
Act).
(g) At the determination date for purposes of the Senior Notes within the
meaning of Rule 164(h) under the 1933 Act, the Company was not an
"ineligible issuer" as defined in Rule 405 under the 1933 Act.
(h) Since the respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, except as otherwise
stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company, whether or
not arising in the ordinary course of business.
(i) 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 sell the Senior Notes to
the Underwriters.
(j) This Agreement has been duly authorized, executed and delivered by the
Company.
(k) The Indenture has been duly authorized by the Company and, on the Closing
Date (as hereinafter defined), will have been duly executed and delivered
by the Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally or
(2) general principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the "Enforceability
Exceptions"); the Indenture will conform in all material respects to all
statements relating thereto contained in the Pricing Disclosure Package and
the Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(l) The issuance and delivery of the Senior Notes have been duly authorized by
the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in
this Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all material
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respects to all statements relating thereto in the Pricing Disclosure
Package and the Final Supplemented Prospectus.
(m) The Company is not and, after giving effect to the offering and sale of
the Senior Notes, will not be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(n) The execution, delivery and performance by the Company of this Agreement,
the Indenture and the Senior Notes and the consummation by the Company of
the transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the Company and
do not and will not result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to which any of
its properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse to
the Company or materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Company, or any of its
properties.
(o) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and regulations
thereunder; (B) the qualification of the Indenture under the 1939 Act;
and (C) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or "blue sky"
laws.
(p) The financial statements incorporated by reference in the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus,
together with the related schedules and notes, present fairly, in all
material respects, the financial position, results of operations and cash
flows of the Company as of and for the dates indicated; said financial
statements have been prepared in conformity with accounting principles
generally accepted in the United States ("GAAP") applied on a consistent
basis (except that the unaudited financial statements incorporated by
reference in the Basic Prospectus, the Pricing Prospectus and the Final
Supplemented Prospectus may be subject to normal year-end adjustments)
throughout the periods involved and necessarily include amounts that are
based on the best estimates and judgments of management. The selected
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financial data and the summary financial information included in the
Pricing Prospectus and the Final Supplemented Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited and unaudited financial statements incorporated by
reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
----------------------------------------------
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of the Senior Notes set forth in Schedule
I to this Agreement opposite the name of such Underwriter (plus any
additional amount of Senior Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11 hereof)
at a price equal to 99.288% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes shall be made
at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at 10:00 A.M., New York time, on January 18, 2007 (unless
postponed in accordance with the provisions of Section 11) or such other
time, place or date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer in
federal funds at the Closing Date against delivery of the Senior Notes to
Barclays Capital Inc. on behalf of all of the Underwriters. It is
understood that each Underwriter has authorized Barclays Capital Inc., for
each Underwriter's account, to accept delivery of, receipt for, and make
payment of, the principal amount of the Senior Notes which each Underwriter
has agreed to purchase. Barclays Capital Inc., individually and not as a
representative of the Underwriters, may (but shall not be obligated to)
make payment of the principal amount of the Senior Notes to be purchased by
any Underwriter whose payment has not been received by the Closing Date,
but such payment shall not relieve such Underwriter from its obligations
hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. FREE WRITING PROSPECTUSES.
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(a) The Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to
the Senior Notes that would constitute a "free writing prospectus" as
7
defined in Rule 405 under the 1933 Act, other than a Permitted Free Writing
Prospectus; each Underwriter, severally and not jointly, represents and
agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to
the Senior Notes that would constitute a "free writing prospectus" as
defined in Rule 405 under the Act, other than a Permitted Free Writing
Prospectus or a free writing prospectus that is not required to be filed by
the Company pursuant to Rule 433; any such free writing prospectus (which
shall include the pricing term sheet discussed in Section 3(b) hereof), the
use of which has been consented to by the Company and the Representatives,
is listed on Schedule III and herein called a "Permitted Free Writing
Prospectus."
(b) The Company agrees to prepare a pricing term sheet, substantially in
the form of Schedule II hereto and approved by the Representatives, and
to file such pricing term sheet pursuant to Rule 433(d) under the 1933
Act within the time period prescribed by such Rule.
(c) The Company and the Representatives have complied and will comply with
the requirements of Rule 433 under the 1933 Act applicable to any free
writing prospectus, including timely Commission filing where required
and legending.
(d) The Company agrees that if at any time following issuance of a Permitted
Free Writing Prospectus any event occurred or occurs as a result of which
such Permitted Free Writing Prospectus would conflict with the information
in the Registration Statement, the Pricing Prospectus or the Final
Supplemented Prospectus or include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing, not
misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and
furnish without charge to each Underwriter a free writing prospectus or
other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to
any statements or omissions in a Permitted Free Writing Prospectus made in
reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through the Representatives, expressly for
use therein.
(e) The Company agrees that if there occurs an event or development as a
result of which the Pricing Disclosure Package would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances then prevailing, not misleading, the Company will notify
the Representatives so that any use of the Pricing Disclosure Package
may cease until it is amended or supplemented.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
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(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representatives
orally of the issuance of any stop order under the 1933 Act with respect to
the Registration Statement, or the institution of any proceedings for that
purpose or pursuant to Section 8A of the 1933 Act against the Company or
related to the offering, of which the Company shall have received notice,
and will use its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if issued. The Company will
deliver to the Representatives sufficient conformed copies of the
Registration Statement, the Basic Prospectus, the Pricing Prospectus and
the Final Supplemented Prospectus and of all supplements and amendments
thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Basic
Prospectus, the Pricing Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with written or electronic copies
of each amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act)
shall be required by law in connection with the sale of any Senior Notes by
an Underwriter, any event relating to or affecting the Company, or of which
the Company shall be advised in writing by the Representatives, shall
occur, which in the opinion of the Company or of Underwriters' counsel
should be set forth in a supplement to or an amendment of the Final
Supplemented Prospectus, as the case may be, in order to make the Final
Supplemented Prospectus not misleading in the light of the circumstances
when it (or in lieu thereof, the notice referred to in Rule 173(a) under
the 1933 Act) is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by
reference in the Final Supplemented Prospectus in order to comply with the
1933 Act or the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Senior Notes and
(ii) at its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or supplements
or an amendment or amendments to the Final Supplemented Prospectus which
will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances when the Final
Supplemented Prospectus (or in lieu thereof, the notice referred to in Rule
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173(a) under the 1933 Act) is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is required
to deliver a prospectus in connection with the sale of any Senior Notes
after the expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the
Final Supplemented Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second sentence of this subsection,
the Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing copies thereof
prior to such filing to the Representatives and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representatives may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, the
Company will file the Final Supplemented Prospectus, in a form approved
by the Representatives, such approval not to be unreasonably withheld,
with the Commission and will advise the Representatives of such filing
and will confirm such advice in writing. Furthermore, the Company will
make any other required filings pursuant to Rule 433(d)(1) of the 1933
Act within the time required by such Rule.
(f) During a period of 15 days from the date of this Agreement, the Company
will not, without the Representatives' prior written consent, directly
or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any Senior Notes or any security convertible
into or exchangeable into or exercisable for the Senior Notes or any
debt securities substantially similar to the Senior Notes (except for
the Senior Notes issued pursuant to this Agreement). The
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Representatives agree that commercial paper or other debt securities
with scheduled maturities of less than one year are not subject to this
Section 4(f).
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 4(c) hereof, including filing fees and the reasonable
fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the Pricing
Prospectus, any Permitted Free Writing Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of the Senior Notes, (x) the
cost and charges of any transfer agent or registrar, and (xi) the cost of
qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 10 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
SECTION 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters to purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement
shall be in effect on the Closing Date and no proceedings for that purpose
or pursuant to Section 8A of the 1933 Act against the Company or related to
the offering shall be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing of the Pricing
Prospectus or the Final Supplemented Prospectus, or any supplement thereto,
is required pursuant to Rule 424, the Pricing Prospectus and the Final
Supplemented Prospectus, and any such supplement, as applicable, shall have
been filed in the manner and within the time period required by Rule 424.
The pricing term sheet contemplated by Section 3(b) hereto, and any other
material required to be filed by the Company pursuant to Rule 433(d) under
the 1933 Act, shall have been filed by the Company with the Commission
within the applicable time periods prescribed for such filings by Rule 433.
11
(b) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel
for the Company, substantially in the form attached hereto as Schedule
IV.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP,
counsel to the Trustee, substantially in the form attached hereto as
Schedule V.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, substantially in the form attached hereto as
Schedule VI.
(c) At the Closing Date, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or any
Vice President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or
prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose or pursuant to Section 8A of the 1933 Act
against the Company or related to the offering have been initiated or, to
the knowledge of the Company, threatened by the Commission.
(d) The Representatives shall have received on the date hereof and shall
receive on the Closing Date from Deloitte & Touche LLP, a letter or letters
addressed to the Representatives (which may refer to letters previously
delivered to the Representatives) dated the respective dates of delivery
thereof to the effect that: (A) they are an independent registered public
accounting firm with respect to the Company within the meaning of the 1933
Act and the rules and regulations under the 1933 Act; (B) in their opinion,
the financial statements audited by them and incorporated by reference in
the Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules and regulations under
the 1934 Act; and (C) on the basis of certain limited procedures performed
through a specified date not more than three business days prior to the
date of such letter, namely (i) reading the minute books of the Company;
(ii) performing the procedures specified by the standards of the Public
Company Accounting Oversight Board (United States) ("PCAOB") for a review
12
of interim financial statement information as described in Statement on
Auditing Standards No. 100, "Interim Financial Information," on the
unaudited financial statements, if any, of the Company incorporated by
reference in the Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable, and on the latest available unaudited financial
statements of the Company, if any, for any calendar quarter subsequent to
the date of those incorporated by reference in the Registration Statement
and the Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable; and (iii)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such
unaudited financial statements or any specified unaudited amounts derived
therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP make no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing
came to their attention that caused them to believe that: (1) any material
modifications should be made to the unaudited condensed financial
statements, if any, incorporated by reference in the Registration Statement
and the Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable, for them
to be in conformity with GAAP; (2) such unaudited condensed financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to Form
10-Q and the related published rules and regulations thereunder; (3) the
unaudited amounts for Operating Revenues, Earnings from Continuing
Operations Before Income Taxes, Earnings from Continuing Operations and Net
Income and the unaudited Ratio of Earnings to Fixed Charges set forth in
the Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, do not agree with the amounts set forth in or derived from the
unaudited financial statements for the same period included or incorporated
by reference in the Registration Statement; (4) as of a specified date not
more than three 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 unaudited balance sheet incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, except in each case for changes or decreases which (i) the
Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, disclose have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs under existing
pollution control financing arrangements, (iv) are occasioned by draw-downs
and regularly scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to satisfy
13
mandatory or optional redemption provisions relating thereto, (vi) are
occasioned by the reclassification of current maturities of long-term debt,
or (vii) are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings from Continuing Operations Before Income
Taxes, Earnings from Continuing Operations and Net Income and the unaudited
Ratio of Earnings to Fixed Charges for any calendar quarter subsequent to
those set forth in (3) above, which, if available, shall be set forth in
such letter, do not agree with the amounts set forth in or derived from the
unaudited financial statements for the same period or were not determined
on a basis substantially consistent with that of the corresponding audited
amounts or ratios included or incorporated by reference in the Registration
Statement and the Pricing Prospectus or the Registration Statement, the
Pricing Prospectus and the Final Supplemented Prospectus, as applicable.
(e) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require
for the purpose of enabling it to pass upon the issuance and sale of
the Senior Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes as herein contemplated shall
be satisfactory in form and substance to the Representatives and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(f) No amendment or supplement to the Registration Statement or the Final
Supplemented Prospectus filed subsequent to the date of this Agreement
(including any filing made by the Company pursuant to Section 13 or 14
of the 1934 Act) shall be unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP or shall contain information (other than with respect to an
amendment or supplement relating solely to the activity of the
Underwriters) which, in the reasonable judgment of the Representatives,
shall materially impair the marketability of the Senior Notes.
(g) The Company shall have performed its obligations when and as provided
under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 5, 8 and 10(b) hereof.
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company shall be subject to the conditions set forth in the first sentence of
Section 6(a). 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 Representatives. Any such termination shall be without
14
liability of any party to any other party except as otherwise provided in
Sections 5, 8 and 10(b) hereof.
SECTION 8. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each of the Underwriters
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, the 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Permitted Free
Writing Prospectus or the Final Supplemented Prospectus or, if the Company shall
furnish to the Underwriters any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus, the Final Supplemented Prospectus as so
amended or supplemented, or in any free writing prospectus used by the Company
other than a Permitted Free Writing Prospectus, or arise out of or are based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Basic Prospectus, Pricing Prospectus, Permitted Free
Writing Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives for use therein. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 8, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 8. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
15
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 8(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus or the Final Supplemented Prospectus, or such
documents as amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through the
Representatives for use therein.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by, or on behalf of the Company and shall survive delivery of the Senior Notes
to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended or there shall have
been a material disruption in settlement in securities generally, (ii) minimum
or maximum ranges for prices shall have been generally established on the New
York Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other substantial national or international
calamity, crisis or emergency (including, without limitation, acts of terrorism)
affecting the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of the
Representatives, the offering, sale or delivery of the Senior Notes on the terms
16
and in the manner contemplated by this Agreement and the Final Supplemented
Prospectus shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representatives pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters for the reasonable fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Senior Notes and, upon
such reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 5 and 8.
SECTION 11. DEFAULT BY AN UNDERWRITER. If an Underwriter shall fail on the
Closing Date to purchase the Senior Notes that it is obligated to purchase under
this Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriters, or any other underwriters to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of the
Senior Notes, the non-defaulting Underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the Senior
Notes, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement, the
Pricing Prospectus or the Final Supplemented Prospectus or in any other
documents or arrangements.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to the
Representatives at Barclays Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Fixed Income Syndicate and ▇▇▇▇▇▇ Brothers Inc.,
17
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital
Markets, Power Group (with a copy to the General Counsel at the same
address); notices to the Company shall be mailed to 30 ▇▇▇▇ ▇▇▇▇▇ ▇▇.
Boulevard, N.W., Atlanta, Georgia 30308, Attention: Corporate Secretary,
with a copy to Southern Company Services, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. Boulevard,
N.W., Atlanta, Georgia 30308, Attention: ▇▇▇▇ ▇. ▇▇▇▇.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase. The Company
acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement, the Company and the Underwriters have
arms-length business relationships that create no fiduciary duty on the part of
any party and each expressly disclaims any fiduciary or financial advisory
relationship.
SECTION 14. 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 15. 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.
18
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE SOUTHERN COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:Executive Vice President, Chief
Financial Officer and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written
BARCLAYS CAPITAL INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ BROTHERS INC.
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
As Representatives of the Several Underwriters
named in Schedule I hereto
SCHEDULE I
Principal Amount of
Name of Underwriters Series 2007A Senior Notes
Barclays Capital Inc. $203,750,000
▇▇▇▇▇▇ Brothers Inc. 203,750,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 35,000,000
SunTrust Capital Markets, Inc. 28,750,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 28,750,000
-------------
TOTAL: $500,000,000
SCHEDULE II
PRICING TERM SHEET
(to Preliminary Prospectus Supplement dated January 11, 2007)
Issuer: The Southern Company
Security: Series 2007A 5.30% Senior Notes due January 15, 2012
Ratings: A3/A-/A (▇▇▇▇▇'▇/Standard & Poor's/Fitch)
Size $500,000,000
Public Offering Price 99.888%
Maturity: January 15, 2012
Treasury Benchmark: 4.625% due December 31, 2011
US Treasury Yield: 4.726%
Spread to Treasury: +60 bps
Redemption Terms: Make-whole call at T+12.5 bps
Coupon: 5.30%
Interest Payment Dates: January 15 and July 15 of each year beginning
July 15, 2007
Format: SEC Registered
Transaction Date: January 11, 2007
Expected Settlement Date: January 18, 2007 (T+4)
Joint Lead Managers: Barclays Capital Inc.
▇▇▇▇▇▇ Brothers Inc.
Co-Managers: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
SunTrust Capital Markets, Inc.
The ▇▇▇▇▇▇▇▇ Capital Group, L.P.
The issuer has filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement, as amended, and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling The Southern Company collect at
1-404-506-5000, Barclays Capital Inc. toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇, ext. 2663 or
▇▇▇▇▇▇ Brothers Inc. toll-free at ▇-▇▇▇-▇▇▇-▇▇▇▇.
SCHEDULE III
PRICING DISCLOSURE PACKAGE
1) Prospectus dated January 11, 2007
2) Preliminary Prospectus Supplement dated January 11, 2007
(which shall be deemed to include documents incorporated by
reference therein)
3) Permitted Free Writing Prospectuses
a) Pricing Term Sheet attached as Schedule II hereto
Schedule IV
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
January 18, 2007
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters
THE SOUTHERN COMPANY
Series 2007A 5.30% Senior Notes
due January 15, 2012
Ladies and Gentlemen:
We have acted as counsel to The Southern Company (the
"Company") in connection with (i) the Company's issuance of $500,000,000
aggregate principal amount of its Series 2007A 5.30% Senior Notes due January
15, 2012 (the "Notes") pursuant to a Senior Note Indenture dated as of January
1, 2007, by and between the Company and ▇▇▇▇▇ Fargo Bank, National Association,
as trustee (the "Trustee"), as supplemented by the First Supplemental Indenture
dated as of January 18, 2007 (collectively, the "Indenture"); and (ii) the
purchase by the Underwriters (as defined herein) of the Notes pursuant to the
terms of an Underwriting Agreement dated January 11, 2007 (the "Underwriting
Agreement"), among the Company and the Underwriters named in Schedule I thereto
(the "Underwriters") for whom you are acting as representatives (the
"Representatives"). This opinion is being delivered to you as Representatives
pursuant to Section 6(b)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3, as amended (File Nos. 333-138503,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-138503-02), pertaining to the Notes and certain other
securities filed by the Company under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act (the "Registration
Statement"); the Company's prospectus dated January 11, 2007 (the "Basic
Prospectus") as supplemented by a preliminary prospectus supplement dated
January 11, 2007 (the "Pricing Prospectus"), filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and Exchange
Commission (the "Commission") under the Act 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, 2005, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 2006, June 30, 2006 and September 30,
2006 and the Current Reports on Form 8-K of the Company dated January 4, 2006,
February 20, 2006, March 16, 2006, March 17, 2006, June 15, 2006, June 27, 2006,
October 17, 2006, October 18, 2006, October 27, 2006 and November 16, 2006 (the
"Pricing Exchange Act Documents"), and a prospectus supplement dated January 11,
2007 (together with the Basic Prospectus, the "Final Supplemented Prospectus"),
filed by the Company pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, which, pursuant to Form S-3, incorporates by reference
the Pricing Exchange Act Documents and the Current Report on Form 8-K of the
Company dated January 11, 2007 (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
the Indenture. We have also examined the free writing prospectus prepared by the
Company and filed with the Commission on January 11, 2007 pursuant to Rule 433
of the Act (the "Permitted Free Writing Prospectus"). The documents listed in
Schedule III to the Underwriting Agreement, taken together, are collectively
referred to as the "Pricing Disclosure Package."
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements."
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware and has due corporate authority to conduct the business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
2
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and the sale of the
Notes; the issuance and the sale of the Notes conform in all material respects
with the terms of such orders; and no other order, consent or other
authorization or approval of the State of Georgia or any United States
governmental body (other than in connection or in compliance with the provisions
of the securities or "blue sky" laws of any jurisdiction, as to which we express
no opinion) is legally required for the issuance and sale of the Notes in
accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Pricing Disclosure Package
and the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended.
7. The execution, delivery and performance by the Company of
the Indenture and the issuance and sale by the Company of the Notes 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 that has been
filed as an exhibit to the Company's Annual Report on Form 10-K for the year
ended December 31, 2005 or any subsequent report filed by the Company under the
Exchange Act 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
3
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.
8. The Company is not and, after giving effect to the offering
and sale of the Notes, will not 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 Pricing Disclosure Package, the Final Supplemented Prospectus or the
Exchange Act Documents and take no responsibility therefor, except as and to the
extent set forth in paragraphs 4 and 5 above. In the course of the preparation
by the Company of the Registration Statement, the Pricing Disclosure Package,
the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with your counsel. Based upon
our examination of the Registration Statement, the Pricing Disclosure Package,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus and
the Exchange Act Documents and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, on the
Effective Date, and the Final Supplemented Prospectus, as of January 11, 2007,
complied as to form in all material respects with the relevant 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 Pricing Disclosure
Package, the Final Supplemented Prospectus or the Exchange Act Documents, and
(ii) nothing came to our attention which gives us reason to believe that the
Registration Statement, on the Effective Date (including the Exchange Act
Documents on file with the Commission as of such date), contained any untrue
4
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, that the Pricing Disclosure Package, as of the Applicable Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Pricing Prospectus and the Final Supplemented
Prospectus under the caption "Description of the Series 2007A Senior Notes -
Book-Entry Only Issuance - The Depository Trust Company."
The attorneys in this firm that are rendering this opinion 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 federal law
of the United States, the Delaware General Corporation Law and, to the extent
set forth herein in numbered paragraphs 4 and 5, the laws of the State of New
York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
5
Schedule V
[Letterhead of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇]
January 18, 2007
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters
The Southern Company
30 ▇▇▇▇ ▇▇▇▇▇ ▇▇. Blvd., N.W.
Atlanta, Georgia 30308
The Southern Company
Series 2007A 5.30% Senior Notes due January 15, 2012
Ladies and Gentlemen:
We have acted as counsel for ▇▇▇▇▇ Fargo Bank, National Association
("▇▇▇▇▇ Fargo"), in connection with the issuance by The Southern Company (the
"Company") of $500,000,000 aggregate principal amount of Series 2007A 5.30%
Senior Notes due January 15, 2012 (the "Notes"). The Notes are being issued
under the Senior Note Indenture dated as of January 1, 2007 (the "Original
Indenture") between the Company and ▇▇▇▇▇ Fargo, as trustee (in such capacity,
the "Trustee"), as supplemented by the First Supplemental Indenture dated as of
January 18, 2007 (the "Supplemental Indenture" and, together with the Original
Indenture, the "Indenture") between the Company and the Trustee.
For purposes of this opinion, we have reviewed the Indenture and such
other documents, records and papers, and satisfied ourselves as to such other
matters, as we have deemed necessary or appropriate for this opinion. As to
questions of fact material to this opinion, we have relied on certificates of
▇▇▇▇▇ Fargo and of public officials. In such review, 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
the originals of all documents submitted to us as copies or forms and the
authenticity of the originals of such latter documents. We have assumed that
▇▇▇▇▇ Fargo has been duly formed and that the Indenture has been duly
authorized, executed and delivered by the Company and constitutes the valid and
binding agreement of, and is enforceable in accordance with its terms against,
the Company.
Based upon the foregoing and subject to the qualifications below, we
are of the opinion that:
1) Based solely on a certificate from the Comptroller of the
Currency, ▇▇▇▇▇ Fargo is a national banking association formed under the laws of
the United States and is authorized thereunder to transact the business of
banking and exercise fiduciary powers.
2) The Indenture has been duly authorized, executed and
delivered by ▇▇▇▇▇ Fargo and constitutes a valid and binding agreement of ▇▇▇▇▇
Fargo enforceable against ▇▇▇▇▇ Fargo in accordance with its terms, except as
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law) and by an implied covenant of reasonableness, good faith
and fair dealing.
We are members of the Bar of the State of New York and, for purposes of
this opinion, do not hold ourselves out as experts on the laws of any
jurisdiction other than the State of New York and the federal law of the United
States. The opinions expressed herein are limited to matters governed by the
laws of the State of New York and the federal law of the United States.
This opinion is solely for your benefit in connection with the issuance
and sale by the Company of the Notes and may not be relied upon by you for any
other purpose, or relied upon or furnished to any other person, without our
prior written consent.
Very truly yours,
2
Schedule VI
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
January 18, 2007
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters
THE SOUTHERN COMPANY
Series 2007A 5.30% Senior Notes
due January 15, 2012
Ladies and Gentlemen:
We have represented the Underwriters (hereinafter defined) in
connection with (i) the issuance and sale by The Southern Company (the
"Company") of $500,000,000 aggregate principal amount of its Series 2007A 5.30%
Senior Notes due January 15, 2012 (the "Notes") pursuant to a Senior Note
Indenture dated as of January 1, 2007, by and between the Company and ▇▇▇▇▇
Fargo Bank, National Association, as trustee (the "Trustee"), as supplemented by
the First Supplemental Indenture, dated as of January 18, 2007 (collectively,
the "Indenture"); and (ii) the purchase by the Underwriters of the Notes
pursuant to the terms of an Underwriting Agreement dated January 11, 2007 (the
"Underwriting Agreement"), among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives"). This opinion is being delivered to you
as Representatives pursuant to Section 6(b)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3, as amended (File Nos. 333-138503,
▇▇▇-▇▇▇▇▇▇-▇▇ and 333-138503-02), pertaining to the Notes and certain other
securities filed by the Company under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act (the "Registration
Statement"); the Company's prospectus dated January 11, 2007 (the "Basic
Prospectus") as supplemented by a preliminary prospectus supplement dated
January 11, 2007 (the "Pricing Prospectus"), filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and Exchange
Commission (the "Commission") under the Act, 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, 2005, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 2006, June 30, 2006 and September 30,
2006 and the Current Reports on Form 8-K of the Company dated January 4, 2006,
February 20, 2006, March 16, 2006, March 17, 2006, June 15, 2006, June 27, 2006,
October 17, 2006, October 18, 2006, October 27, 2006 and November 16, 2006 (the
"Pricing Exchange Act Documents"), and a prospectus supplement dated January 11,
2007 (together with the Basic Prospectus, the "Final Supplemented Prospectus"),
filed by the Company pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, which, pursuant to Form S-3, incorporates by reference
the Pricing Exchange Act Documents and the Current Report on Form 8-K of the
Company dated January 11, 2007 (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
the Indenture. We have also examined the free writing prospectus prepared by the
Company and filed with the Commission on January 11, 2007 pursuant to Rule 433
of the Act (the "Permitted Free Writing Prospectus"). The documents listed in
Schedule III to the Underwriting Agreement, taken together, are collectively
referred to as the "Pricing Disclosure Package."
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements."
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion 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 Pricing Disclosure Package and the Final Supplemented Prospectus and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Commission legally required for the issuance and sale of the Notes have
been obtained; such orders are sufficient for the issuance and sale of the
Notes; the issuance and sale of the Notes conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any United States governmental body (other than in connection or in
2
compliance with the provisions of the securities or "blue sky" laws of any
jurisdiction, as to which we express no opinion) is legally required for the
issuance and sale of the Notes in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Pricing Disclosure Package
and the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Pricing Disclosure Package, the Final Supplemented Prospectus or the
Exchange Act Documents and take no responsibility therefor, except as and to the
extent set forth in paragraphs 4 and 5 above. In the course of the preparation
by the Company of the Registration Statement, the Pricing Disclosure Package,
the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Pricing Disclosure
Package, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Pricing Disclosure Package and the Final Supplemented Prospectus
and our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, on the Effective Date, and the Final
Supplemented Prospectus, as of January 11, 2007, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
3
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 Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that the Registration
Statement, on the 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,
that the Pricing Disclosure Package, as of the Applicable Time, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Pricing Prospectus and the Final Supplemented
Prospectus under the caption "Description of the Series 2007A Senior Notes -
Book-Entry Only Issuance - The Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its
opinions pursuant to Section 6 of the Underwriting Agreement and to Sections
102, 302 and 904 of the Indenture, insofar as such opinions relate to matters of
New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
4