Exhibit 1.1
$575,000,000 4.875% Senior Notes, Series C due July 15, 2015
SOUTHERN POWER COMPANY
PURCHASE AGREEMENT
July 1, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Initial Purchasers named on Schedule I hereto
Ladies and Gentlemen:
Southern Power Company, a Delaware corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other Initial
Purchasers named in Schedule I hereto (collectively, the "Initial Purchasers",
which term shall also include any initial purchaser substituted as hereinafter
provided in Section 10 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 Initial
Purchasers, acting severally and not jointly, of $575,000,000 aggregate
principal amount of the 4.875% Senior Notes, Series C due July 15, 2015 (the
"Senior Notes") as set forth in Schedule I hereto.
The Senior Notes will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
certain exemptions therefrom and in transactions not subject thereto. The
Company has prepared a preliminary offering memorandum, dated June 30, 2003,
including any and all annexes attached thereto, (the "Preliminary Offering
Memorandum") and an offering memorandum, dated the date hereof, including any
and all annexes attached thereto, (the "Offering Memorandum") setting forth
information regarding the Company and the transactions described herein.
The Senior Notes will be issued pursuant to an indenture, dated as of
June 1, 2002 (the "Base Indenture"), between the Company and The Bank of New
York, as trustee (the "Trustee"), as supplemented by a second supplemental
indenture to the Base Indenture (the "Second Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement, dated the date
hereof (the "Registration Rights Agreement") pursuant to which the Company will
file with the Securities and Exchange Commission (the "Commission") (i) a
registration statement under the Securities Act (the "Exchange Offer
Registration Statement") registering senior notes of the Company ("Exchange
Notes") which are identical in all material respects to each issue of the Senior
Notes (except the Exchange Notes will not contain terms with respect to transfer
restrictions and additional interest) and (ii) under certain circumstances, a
shelf registration statement pursuant to Rule 415 under the Securities Act (the
"Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Offering Memorandum.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Initial Purchasers as follows:
(a) The Offering Memorandum does not on the date of this Agreement and,
as it may be then amended and supplemented, will not on the Closing
Date, contain an untrue statement of a material fact or omit 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;
except that this representation and warranty does not apply to (i)
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Initial Purchaser specifically for use in the Offering Memorandum and
(ii) the Independent Engineer's Report or the Independent Market
Expert's Report attached as Annex A and Annex B, respectively, to the
Offering Memorandum. The factual information provided by the Company to
▇.▇. ▇▇▇▇, Inc. ("▇▇▇▇") for inclusion in its Independent Engineer's
Report contained in Annex A to the Offering Memorandum was to the
Company's knowledge, accurate in all material respects as of the time
it was furnished.
(b) The Preliminary Offering Memorandum, as of its date, did not
contain an untrue statement of a material fact or omit to state a
material fact 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 Initial
Purchasers with respect to: (i) statements or omissions made in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Initial Purchaser specifically for
use in the Preliminary Offering Memorandum and (ii) the Independent
Engineer's Report or the Independent Market Expert's Report attached as
Annex A and Annex B, respectively, to the Preliminary Offering
Memorandum.
(c) The historical financial statements of the Company contained in the
Offering Memorandum have been prepared in conformity with generally
accepted accounting principles in the United States and fairly present
the financial position of the Company as of the dates set forth
therein.
(d) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, there has been no
material adverse change in the business, properties or financial
condition of the Company.
(e) The Company is a corporation duly organized and existing under the
laws of the State of Delaware and has due corporate authority to
conduct its business and to own and operate the properties used by it
in such business, as described in the Offering Memorandum, to enter
into and perform its obligations under this Agreement, the Registration
Rights Agreement and the Indenture and to issue and sell the Senior
Notes to the Initial Purchasers.
(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Trustee, the 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 Offering Memorandum.
(h) 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 the Offering Memorandum, 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;
the Senior Notes will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Offering Memorandum.
(i) The Registration Rights Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company and, assuming due authorization, execution and
delivery of the Registration Rights Agreement by the other parties
thereto, the Registration Rights Agreement will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
the enforcement thereof may be limited by the Enforceability Exceptions
and except as indemnification or contribution obligations thereunder
may be limited under applicable laws; the Registration Rights Agreement
will conform in all material respects to all statements relating
thereto in the Offering Memorandum.
(j) Neither the Company nor any of its affiliates (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of any security (as
defined in the Securities Act) which is or will be integrated with the
sale of the Senior Notes in a manner that would require the
registration under the Securities Act of the Senior Notes or (ii)
engaged in any form of general solicitation or general advertising in
connection with the offering of the Senior Notes (as those terms are
used in Regulation D under the Securities Act), or acted in any manner
involving a public offering of the Senior Notes within the meaning of
Section 4(2) of the Securities Act.
(k) The Senior Notes are eligible for resale pursuant to Rule 144A
under the Securities Act ("Rule 144A") and will not be, at the Closing
Date, of the same class (within the meaning of Rule 144A) as securities
listed on a national securities exchange registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or quoted in a U.S. automated inter-dealer quotation system.
(l) With respect to those Senior Notes sold in reliance on Regulation S
under the Securities Act, (i) none of the Company, its Affiliates or
any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged
or will engage in any directed selling efforts within the meaning of
Regulation S and (ii) each of the Company and its Affiliates and any
person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has
complied and will comply with the offering restrictions requirement of
Regulation S.
(m) The execution, delivery and performance by the Company of this
Agreement, the Registration Rights 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.
(n) 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 and the
Offering Memorandum, except (A) such as may be required under the
Public Utility Holding Company Act of 1935, as amended (the "Holding
Company Act"); (B) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws and (C) such consents, approvals,
authorizations, registrations and qualifications as may be required
under the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") in connection with the transactions
contemplated in the Registration Rights Agreement.
(o) The projected financial information contained in the Offering
Memorandum (excluding the Independent Market Expert's Report, attached
as Annex B to the Offering Memorandum) (i) are, in the judgment of the
Company as to the matters covered thereby, reasonable as of their date
and (ii) are based on reasonable assumptions as to all factual and
legal matters material to the estimates therein, all of which
assumptions, to the extent material, are fairly disclosed in the
Offering Memorandum. To the knowledge of the Company, none of the
information forming the basis of such projections and assumptions has
changed since they were originally prepared so as to materially affect
such projections and assumptions.
(p) Assuming the accuracy of the Initial Purchasers' representations
contained herein, and the Initial Purchasers' compliance with its
agreements hereunder, the Company is not required by applicable law or
regulation, in connection with the offer, sale and delivery of the
Senior Notes to the Initial Purchasers, and the initial resales by the
Initial Purchasers, each in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Senior Notes under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act.
SECTION 2. SALE AND DELIVERY TO THE INITIAL PURCHASERS; CLOSING; SALE
AND RESALE BY THE INITIAL PURCHASERS.
(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 Initial Purchaser, and each Initial Purchaser, severally and not
jointly, agrees to purchase from the Company, the principal amount of Senior
Notes set forth in Schedule I to this Agreement opposite the name of such
Initial Purchaser (plus any additional amount of Senior Notes that such Initial
Purchaser may become obligated to purchase pursuant to the provisions of Section
10 hereof), at the prices set forth in Schedule I to this Agreement.
(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 July 8, 2003 (unless
postponed in accordance with the provisions of Section 10) 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 Citigroup Global
Markets Inc. ("Citigroup"). It is understood that each Initial Purchaser has
authorized Citigroup, for its account, to accept delivery of, receipt for, and
make payment of the principal amount of the Senior Notes which it has agreed to
purchase. Citigroup, individually and not as Representatives of the Initial
Purchaser, may (but shall not be obligated to) make payment of the principal
amount of the Senior Notes to be purchased by any Initial Purchaser whose
payment has not been received by the Closing Date, but such payment shall not
relieve such Initial Purchaser from its obligations hereunder.
(c) The Senior Notes in which interests are sold to Qualified
Institutional Buyers (as defined in Rule 144A) in reliance on Rule 144A will be
issued in the form of two or more Global Notes (the "Rule 144A Global Notes").
The Senior Notes in which interests are sold to persons other than U.S. persons
(as defined in Regulation S under the Securities Act ("Regulation S")) in
offshore transactions in reliance on Regulation S will each be issued in the
form of two or more Global Notes (the "Regulation S Global Notes"). Upon
issuance by the Company, the Trustee will authenticate and deliver the Rule 144A
Global Notes and the Regulation S Global Notes and will record Cede & Co., as
the nominee of DTC, on its books as the registered owner of the Senior Notes.
The Senior Notes in which interests are sold to a limited number of
institutional investors who are "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) will be issued in
certificated form without coupons and registered in such names as each Initial
Purchaser may request upon at least forty-eight hours' prior notice to the
Company.
For the purpose of expediting the checking of the Senior Notes by the
Initial Purchasers, the Company agrees to make the Senior Notes available to the
Initial Purchasers for such purpose at the offices of the Trustee in New York,
New York not later than 2:00 PM, New York City time, on the business day
preceding the Closing Date, or at such other time and place as may be agreed
upon by the Company and the Initial Purchasers.
(d) Resale of the Securities: Each Initial Purchaser represents and
warrants to, and agrees with the Company that:
(1) It is a Qualified Institutional Buyer and an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act;
(2) It has not offered or sold, and will not offer or sell,
Senior Notes except (i) to persons whom it reasonably believes to be
Qualified Institutional Buyers or, if any such person is buying for one
or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to such
Initial Purchaser that each such account is a Qualified Institutional
Buyer to whom such notice has been given that such sale or delivery is
being made in reliance on Rule 144A, in each case in transactions
meeting the requirements of Rule 144A, (ii) to a limited number of
other institutional investors whom the Company believes to be
"accredited investors" (as defined in Rule 501(a) (1), (2), (3) or (7)
of Regulation D) that, prior to their purchase of the Senior Notes,
deliver to it a letter substantially in the form of Annex C to the
Offering Memorandum or (iii) in the case of offers outside the United
States to persons other than U.S. Persons (within the meaning of
Regulation S) to whom it reasonably believes offers and sales of the
Senior Notes may be made in reliance upon Regulation S under the
Securities Act; and
(3) Neither it nor any of its Affiliates or any person acting
on its or their behalf has made or will make offers or sales of Senior
Notes in the United States by means of any form of general solicitation
or general advertising (within the meaning of Regulation D) or in any
manner involving a public offering (within the meaning of Section 4(2)
under the Securities Act) in the United States.
(e) Each Initial Purchaser represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(1) such Initial Purchaser understands that no action has been
or will be taken in any jurisdiction by the Company that would permit a
public offering of the Senior Notes, or possession or distribution of
the Offering Memorandum or Preliminary Offering Memorandum or any other
offering or publicity material relating to the Senior Notes, in any
country or jurisdiction where action for that purpose is required;
(2) such Initial Purchaser will comply with all applicable
laws and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Senior Notes or has in its possession or distributes
the Offering Memorandum or Preliminary Offering Memorandum or any such
other material, in all cases at its own expense;
(3) the Senior Notes have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S or pursuant to another
exemption from, or in transactions not subject to, the registration
requirements of the Securities Act;
(4) such Initial Purchaser has offered the Senior Notes and
will offer and sell the Senior Notes (A) as part of its distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S or as otherwise permitted in Section 2(d)
of this Agreement; accordingly, neither such Initial Purchaser, its
Affiliates nor any persons acting on its or their behalf have engaged
or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Senior Notes, and the Initial
Purchaser, its Affiliates and any such persons have complied and will
comply with the offering restrictions requirement of Regulation S;
(5) such Initial Purchaser has (A) not offered or sold and
will not offer or sell any Senior Notes to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (B) only communicated or caused
to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services
and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of any Senior Notes in circumstances in which Section
21(1) of the FSMA does not apply to the Company and (C) complied and
will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the Senior Notes in, from or
otherwise involving the United Kingdom; and
(6) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Senior Notes, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Senior Notes from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and the closing date,
except in either case in accordance with Regulation S (or Rule 144A or any other
exemption from the registration requirements of the Securities Act if available)
under the Securities Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in this Section 2(e) have the meanings given to them by Regulation S.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Initial Purchasers as follows:
(a) To prepare the Offering Memorandum in a form approved by the
Initial Purchasers and to furnish to the Initial Purchasers, without
charge, as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum and any supplements and amendments thereto as the
Initial Purchasers may reasonably request.
(b) If, at any time prior to completion of the initial resales of the
Senior Notes by the Initial Purchasers to purchasers, any event shall
occur or condition exist as a result of which it is necessary, in the
opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum will not include 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
light of the circumstances existing at the time it is delivered to a
purchaser or a potential purchaser, or if it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, to
promptly prepare such amendment or supplement as may be necessary to
correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable
law and to furnish the Initial Purchasers such number of copies as they
may reasonably request.
(c) So long as the Senior Notes are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, to furnish to holders of Senior Notes and prospective purchasers
of Senior Notes designated by such holders, upon request of such
holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
such information is contained, at the time of such request, in
documents filed with the Commission pursuant to Section 13 or 15(d) of
the Exchange Act.
(d) The Company will endeavor, in cooperation with the Initial
Purchasers, 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 Initial Purchasers may designate and to pay
filing fees, reasonable attorneys' fees and disbursements in connection
therewith in an amount not exceeding $15,000 in the aggregate
(including filing fees and disbursements paid or incurred prior to the
date this Agreement becomes effective); 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.
(e) The Company covenants (i) not to solicit any offer to buy or offer
to sell the Senior Notes by means of any form of general solicitation
or general advertising (as those terms are used in Regulation D under
the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act and (ii) not to
engage, or permit its Affiliates or any person acting on their behalf
to engage, in any directed selling efforts (as defined in Regulation S)
with respect to the Senior Notes sold pursuant to Regulation S and to
comply and cause its Affiliates and each person acting on their behalf
to comply with the offering restrictions of Regulation S with respect
to those Senior Notes sold pursuant thereto (it being understood that
the Company and its Affiliates shall not have responsibility for the
actions of the Initial Purchasers or any of their respective
Affiliates).
(f) The Company covenants not to offer, sell, contract to sell or
otherwise dispose of any additional securities of the Company or to
issue any securities convertible into or exchangeable for the Senior
Notes or with respect to any debt securities substantially similar to
the Senior Notes (except for the securities issued pursuant to this
Agreement), without the consent (which consent shall not be
unreasonably withheld) of the Initial Purchasers during the period
beginning from the date of this Agreement and continuing to and
including the earlier of (i) the termination of trading restrictions on
the Senior Notes, as communicated to the Company by the Initial
Purchasers and (ii) 15 days following the Closing Date.
(g) The Company agrees not to, and will cause its Affiliates not to,
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) in a
transaction that could be integrated with the sale of the Senior Notes
in a manner that would require the registration under the Securities
Act of the Senior Notes.
(h) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its Affiliates to, purchase, agree
to purchase or otherwise acquire any of the Senior Notes which
constitute "restricted securities" under Rule 144 under the Securities
Act.
SECTION 4. PAYMENT OF EXPENSES.
(a) The Company agrees to pay all expenses incidental to the
performance of its obligations under this Agreement, including, but not
limited to, the expenses of (i) the preparation and printing of the
Preliminary Offering Memorandum and the Offering Memorandum and any
amendments and supplements thereto, (ii) distributing the Preliminary
Offering Memorandum and the Offering Memorandum and any amendments or
supplements thereto, (iii) the preparation, issuance and delivery of
the certificate(s) for the Senior Notes to the Initial Purchasers, (iv)
the fees and disbursements of the Company's counsel and accountants,
(v) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(d) hereof, including filing
fees and the reasonable fees and disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Initial Purchasers, in connection therewith and in
connection with the preparation of any blue sky survey, (vi) the
printing and delivery to the Initial Purchasers of copies of any blue
sky survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Notes,
(ix) any fees payable in connection with the rating of the Senior
Notes, (x) the cost and charges of any transfer agent or registrar,
(xi) the cost of qualifying the Senior Notes with DTC; and (xii) all
reasonable fees, disbursements and expenses of independent engineers,
independent market experts and any other third party consultants who
have prepared reports, attached as annexes to the Preliminary Offering
Memorandum and Offering Memorandum, or otherwise.
(b) In addition, the Company agrees to pay the reasonable and
documented third party out of pocket expenses incurred by the
Representatives in connection with the offer and sale of the Senior
Notes to the Initial Purchasers (including (i) all out of pocket
expenses incurred by the Initial Purchasers with respect to the "road
show" including expenses relating to slide production, Bloomberg taping
and travel and (ii) reasonable and documented fees and expenses of
counsel to the Initial Purchasers).
SECTION 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
obligations of the Initial Purchasers to purchase and pay for the Senior Notes
are subject to the following conditions:
(a) Any required order or orders of the Commission under the Holding
Company Act permitting the transactions contemplated hereby
substantially in accordance with the terms and conditions hereof shall
be in full force and effect and shall contain no provision unacceptable
to the Initial Purchasers or the Company (but all provisions of such
order or orders heretofore entered, copies of which have heretofore
been delivered to the Representatives, are deemed acceptable to the
Initial Purchasers and the Company and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the Initial
Purchasers and the Company unless within 24 hours after receiving a
copy of any such order any party to this Agreement shall give notice to
the other parties to the effect that such order contains an
unacceptable provision).
(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 II.
(2) The opinion, dated the Closing Date, of Pillsbury Winthrop
LLP, counsel to the Trustee, substantially in the form attached hereto
as Schedule III.
(3) The opinion, dated as of the Closing Date, of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, substantially in
the form attached hereto as Schedule IV.
(4) 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 Offering Memorandum, 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, 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 and (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.
(5) On the Closing Date, the Representatives shall have
received from Deloitte & Touche LLP a letter dated as of the Closing
Date to the effect that: (A) they are independent public accountants
with respect to the Company within the meaning of the Securities Act
and the rules and regulations under the Securities Act; (B) in their
opinion, the financial statements audited by them and included in the
Offering Memorandum comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the rules
and regulations under the Exchange Act; and (C) on the basis of certain
limited procedures performed through a specified date not more than
five business days prior to the date of such letter, namely (i) reading
the minute books of the Company; (ii) performing the procedures
specified by the American Institute of Certified Public Accountants
("AICPA") for a review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial Information"
or Statement on Auditing Standards No. 100, "Interim Financial
Information", as applicable, on the unaudited financial statements, if
any, of the Company included in the Offering Memorandum and of the
latest available unaudited financial statements of the Company, if any,
for any calendar quarter subsequent to the date of those included in
the Offering Memorandum; 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 Initial Purchasers' 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 included in the
Offering Memorandum for them to be in conformity with generally
accepted accounting principles; (2) such unaudited condensed financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act as it applies to
Form 10-Q and the related published rules and regulations thereunder;
(3) the unaudited amounts for Operating Revenues, Earnings Before
Income Taxes and Net Income and the unaudited Ratio of Earnings to
Fixed Charges set forth in the Offering Memorandum 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 in the Offering Memorandum; (4) as of a specified
date not more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or
long-term debt of the Company or any decrease in net assets as compared
with amounts shown in the latest audited balance sheet, except in each
case for changes or decreases which (i) the Offering Memorandum
discloses have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs under
existing pollution control financing arrangements, (iv) are occasioned
by draw-downs and regularly scheduled payments of capitalized lease
obligations, (v) are occasioned by the purchase or redemption of bonds
or stock to satisfy 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
Before Income Taxes 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 in the Offering
Memorandum. Deloitte & Touche LLP shall also have compared specified
dollar amounts (or percentages derived from such dollar amounts) and
other financial information contained in the Offering Memorandum, (in
each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls of
the Issuer's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(6) On the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the
Initial Purchasers shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the 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 Initial Purchasers.
(7) That no amendment or supplement to the Preliminary
Offering Memorandum or the Offering Memorandum 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 Initial Purchasers) which, in the reasonable judgment
of the Representatives, shall materially impair the marketability of
the Senior Notes.
(8) ▇▇▇▇ shall have consented to the references to it in the
Offering Memorandum and the use of the Independent Engineer's Report
prepared by ▇▇▇▇ and contained in Annex A to the Offering Memorandum;
and confirmed that nothing has come to their attention in connection
with the preparation of the Independent Engineer's Report which would
cause it to believe that the Independent Engineer's Report, as of its
date, or any statements in the Offering Memorandum specifically
attributed to it, as of the date of the Offering Memorandum, were
inaccurate or misleading in any material respect, as evidenced by a
certificate satisfactory to the Initial Purchasers of an authorized
officer of ▇▇▇▇, delivered and dated as of the Closing Date.
(9) PA Consulting Services, Inc. ("PA") shall have consented
to the references to it in the Offering Memorandum and the use of the
Independent Market Expert's Report prepared by PA and contained in
Annex B to the Offering Memorandum; and since the date of the
Independent Market Expert's Report, no event affecting the Report or
the matters referred to therein shall have occurred (i) which shall
make untrue or incorrect in any material respect, as of the date of
this Agreement, any information or statement contained in the
Independent Market Expert's Report or in the Offering Memorandum
relating to matters referred to in the Independent Market Expert's
Report or (ii) which is not reflected in the Offering Memorandum but
should be reflected therein in order to make the statements and
information contained in the Offering Memorandum relating to matters
referred to in the Independent Market Expert's Report, in light of the
circumstances under which they were made, not misleading, as evidenced
by a certificate satisfactory to the Initial Purchasers of an
authorized officer of PA, delivered and dated as of the Closing Date.
(10) The Initial Purchasers shall have received on the Closing
Date the Registration Rights Agreement executed by the Company and the
Representatives.
(11) 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 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the conditions set
forth in Section 5(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
liability of any party to any other party except as otherwise provided in
Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Initial Purchasers and each person, if any, who controls any such Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Securities Act, Exchange Act or otherwise, and to reimburse such
Initial Purchaser 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 the Preliminary Offering Memorandum or Offering Memorandum or,
if the Company shall furnish to the Initial Purchasers any amendments or any
supplements thereto, 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 Preliminary Offering Memorandum or Offering
Memorandum or any such amendment or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by, or through
the Representatives on behalf of, the Initial Purchasers for use therein and
except that this indemnity with respect to the Preliminary Offering Memorandum
or with respect to the Offering Memorandum, if the Company shall have furnished
any amendment or supplement thereto, shall not inure to the benefit of any
Initial Purchaser (or of any person controlling such Initial Purchaser) on
account of any losses, claims, damages, liabilities or actions arising from the
sale of the Senior Notes to any person if a copy of the Offering Memorandum, as
the same may then be amended or supplemented, shall not have been sent or given
by or on behalf of such Initial Purchaser to such person with or prior to the
written confirmation of the sale involved and the untrue statement or alleged
untrue statement or omission or alleged omission was corrected in the Offering
Memorandum as supplemented or amended at the time of such confirmation. Each
Initial Purchaser 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 7, to notify the Company in writing of the
commencement thereof but the omission of such Initial Purchaser so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Initial Purchaser or to such controlling person
otherwise than on account of the indemnity agreement contained in this Section
7. In case any such action shall be brought against an Initial Purchaser or any
such person controlling such Initial Purchaser and such Initial Purchaser 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 Initial Purchaser 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 Initial Purchaser 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
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 Initial Purchaser agrees severally and not jointly, to
indemnify and hold harmless the Company and each of its directors and officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act to the same extent
and upon the same terms as the indemnity agreement of the Company set forth in
Section 7(a) hereof, but only with respect to alleged untrue statements or
omissions made in the Preliminary Offering Memorandum or the Offering
Memorandum, or such documents as amended or supplemented, in reliance upon and
in conformity with information furnished in writing to the Company by, or
through the Representatives on behalf of, such Initial Purchaser for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Initial Purchasers.
SECTION 9. 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 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
judgement of the Representatives, the marketability of the Senior Notes 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 Initial Purchasers for the reasonable and documented third party
out of pocket expenses described in Section 4(b) of this Agreement. Upon such
reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4(a) and 7.
SECTION 10. DEFAULT BY AN INITIAL PURCHASER
If an Initial Purchaser 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 Initial
Purchasers, or any other initial purchasers, 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 Initial Purchasers 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 Initial Purchasers, 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 Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser 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 Offering Memorandum or in any other
documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Representatives at ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets, Power
Group, Fax: ▇▇▇-▇▇▇-▇▇▇▇ and Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, Fax: ▇▇▇-▇▇▇-▇▇▇▇;
notices to the Company shall be mailed to ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, with a copy to Southern Company Services,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Initial Purchasers, 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
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Initial Purchasers 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
Initial Purchasers shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
SOUTHERN POWER COMPANY
By:
----------------------------------------
Name:
---------------------------------
Title:
------------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written
CITIGROUP GLOBAL MARKETS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
------------------------------------
▇▇▇▇▇▇ BROTHERS INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
------------------------------------
As Representatives of the Several Initial Purchasers
named in Schedule I hereto
SCHEDULE I
I. Purchase Price
The purchase prices to be paid by the Initial Purchasers for the Senior
Notes shall be as follows:
Initial Purchasers' Initial Purchasers'
Price to Public Discount Purchase Price
------------------- -------------------- -------------------
Series C Notes 99.738% 0.700% 99.038%
II. Principal Amount to be Purchased
Principal Amount of
Initial Purchasers Series C Notes
-------------------------------------------------- -------------------
Citigroup Global Markets Inc. .................... $201,250,000
▇▇▇▇▇▇ Brothers Inc. ............................. 201,250,000
Mizuho International plc ......................... 57,500,000
Tokyo-Mitsubishi International plc ............... 57,500,000
Barclays Capital Inc. ............................ 14,375,000
Commerzbank Capital Markets Corp. ................ 14,375,000
ING Financial Markets LLC ........................ 14,375,000
Scotia Capital (USA) Inc. ........................ 14,375,000
--------------
Aggregate Principal Amount $575,000,000
Schedule II
[Letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP]
________, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Initial Purchasers
SOUTHERN POWER COMPANY
___ % Senior Notes, Series C due July 15, 2015
Ladies and Gentlemen:
We have acted as counsel to Southern Power Company (the "Company") in
connection with (i) the Company's issuance of $575,000,000 aggregate principal
amount of its ___% Senior Notes, Series C due July 15, 2015 (the "Notes")
pursuant to a Senior Note Indenture dated as of June 1, 2002, by and between the
Company and The Bank of New York, as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Second Supplemental Indenture
dated as of __________, 2003 (collectively, the "Indenture"); and (ii) the
purchase by the Representatives of the Notes pursuant to the terms of a Purchase
Agreement dated June __, 2003, among the Company and the initial purchasers
named in Schedule I thereto (the "Initial Purchasers") for whom you are acting
as the Representatives (the "Purchase Agreement"). The Notes are subject to the
Registration Rights Agreement dated the date hereof by and among the Company and
you, as the Representatives (the "Registration Rights Agreement"). This opinion
is being delivered to you as Representatives pursuant to Section 5(b)(1)
thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Purchase Agreement.
In rendering the opinions expressed below, we have examined the
offering memorandum dated __________, 2003 (the "Offering Memorandum"), the
Indenture, the Notes, the Registration Rights Agreement and the Purchase
Agreement.
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Notes, of which
we have examined specimens), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
The Indenture, the Registration Rights Agreement, the Notes and the
Purchase Agreement are herein referred to 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 and relying as to matters of Florida law upon the attached
opinion of ▇▇▇▇▇ & Lane to the Company, that:
1 The Company has been duly organized and is validly existing
and in good standing as a corporation under the laws of the State of Delaware
and has due corporate authority to conduct its business and to own and operate
the properties used by it in such business as described in the Offering
Memorandum and to enter into and perform its obligations under the Agreements.
2 The execution, delivery and performance by the Company of the
Purchase Agreement have been duly authorized by all necessary corporate action,
and the Purchase Agreement has been duly executed and delivered by the Company.
3 All orders, consents, or other authorizations or approvals of
the Commission legally required under the Public Utility Holding Company Act of
1935, as amended, for the issuance and delivery of the Notes have been obtained;
such orders are sufficient for the issuance and the delivery of the Notes; the
issuance and the delivery 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 States of Delaware, Georgia, Florida, Alabama or 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 delivery of the Notes in
accordance with the terms of the Purchase 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 Offering Memorandum.
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 Initial Purchasers pursuant to
the Purchase 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; and the Notes conform as to legal matters in
all material respects to the description thereof in the Offering Memorandum.
6 The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes a valid
and legally binding instrument of the Company, enforceable against the Company
in accordance with its terms, except to the extent that the enforceability of
the Company's obligations under the Registration Rights Agreement may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except to the extent indemnification or
contribution provisions thereunder may be limited under applicable law; the
Registration Rights Agreement conforms in all material respects to all
statements relating thereto in the Offering Memorandum.
7 The statements as to matters of law and legal conclusions
contained in the Offering Memorandum under the caption "Certain U.S. Federal
Income Tax Considerations" are correct in all material respects.
8 Assuming (a) the accuracy of the representations and
warranties of the Company set forth in Section 1 of the Purchase Agreement and
of the Initial Purchasers set forth in Section 2 of the Purchase Agreement, (b)
the due performance by the Company of the covenants and agreements set forth in
Section 3 of the Purchase Agreement and the due performance by the Initial
Purchasers of the covenants and agreements set forth in Section 2 of the
Purchase Agreement, (c) compliance by the Initial Purchasers with the offering
and transfer procedures and restrictions described in the Offering Memorandum
and (d) the accuracy of the representations and warranties made in accordance
with the Offering Memorandum by purchasers to whom the Initial Purchasers
initially resells the Notes, the offer, sale and delivery of the Notes to the
Initial Purchasers in the manner contemplated by the Purchase Agreement and the
Offering Memorandum and the initial resale of the Notes by the Initial
Purchasers in the manner contemplated in the Offering Memorandum and the
Purchase Agreement do not require registration of the Notes under the Securities
Act (it being understood that we express no opinion as to any subsequent resale
of any Notes) and the Indenture is not required to be qualified under the Trust
Indenture Act.
9 The execution, delivery and performance by the Company of the
Agreement does 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 material
contract, indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to us to which the Company is a party or by which
it may be bound or to which any of its properties may be subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition (financial or
otherwise) of the Company), (B) any existing applicable law, rule or regulation
applicable to the Company (other than the securities or blue sky laws of any
jurisdiction, as to which we express no opinion) or (C) any judgment, order or
decree known to us of any government, governmental instrumentality, or court,
domestic or foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company.
10 The Company is not, nor after giving effect to the sale of the
Notes will be, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Offering Memorandum and take
no responsibility therefor, except as and to the extent set forth in paragraphs
4, 5, 6 and 7 above. In the course of the preparation by the Company of the
Offering Memorandum, 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 Offering Memorandum, our
investigations made in connection with the preparation of the Offering
Memorandum and our participation in the conferences referred to above, nothing
came to our attention which gives us reason to believe that the Offering
Memorandum, as of its date, contained, or on the date hereof contains, any
untrue statement of a material fact or omitted as of its date or omits as of the
date hereof to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, except that in
each case we express no opinion or belief with respect to (i) the financial
statements or other financial or statistical data contained in the Offering
Memorandum or (ii) the Independent Engineer's Report or the Independent Market
Expert's Report attached as Annex A and B, respectively, to the Offering
Memorandum.
We are members of the State Bars of Alabama and Georgia and we do not
express any opinion herein concerning any law other than the laws of such States
and, to the extent set forth herein, the law of the States of New York, Florida,
Delaware General Corporation Law and the federal law of the United States.
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
Schedule III
[Letterhead of PILLSBURY WINTHROP LLP]
__________, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As representatives of the several initial purchasers (the "Initial
Purchasers") named on Schedule I to the Purchase Agreement dated
____, 2003 among the Initial Purchasers and Southern Power Company
(the "Company")
Southern Power Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Southern Power Company
___% Senior Notes, Series C due July 15, 2015
Ladies and Gentlemen:
We have acted as counsel for The Bank of New York, a New York banking
corporation ("BNY") in connection with the several purchases by the Initial
Purchasers of $575,000,000 aggregate principal amount of ___% Senior Notes,
Series C due July 15, 2015 (the "Notes") issued by the Company. The Notes are
being issued under the Senior Note Indenture dated as of June 1, 2002 between
the Company and BNY, as trustee (in such capacity, the "Trustee"), as heretofore
supplemented and as further supplemented by the Second Supplemental Indenture
dated as of _____, 2003 between the Company and the Trustee (collectively, the
"Indenture").
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
BNY 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 BNY has been duly
incorporated 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) BNY is a banking corporation validly existing under the laws of the
State of New York with corporate power and authority to enter into and perform
its obligations under the Indenture.
2) The Indenture has been duly authorized, executed and delivered by
BNY and constitutes a valid and binding agreement of BNY enforceable against BNY
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. The opinions expressed herein are
limited to matters governed by the laws of the State of New York
This opinion is solely for the benefit of the Company and the several
Initial Purchasers in connection with the issuance and sale by the Company of
the Notes and may not be relied upon by the Company or the several Initial
Purchasers for any other purpose, or relied upon or furnished to any other
person, without our prior written consent.
Very truly yours,
PILLSBURY WINTHROP LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
_____, 2003
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Initial Purchasers
SOUTHERN POWER COMPANY
___% Senior Notes, Series C due July 15, 2015
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by Southern
Power Company (the "Company") of $575,000,000 of its ___% Senior Notes, Series C
due July 15, 2015 (the "Notes") pursuant to a Senior Note Indenture dated as of
June 1, 2002, by and between the Company and The Bank of New York, as trustee
(the "Trustee"), as heretofore supplemented and as further supplemented by the
Second Supplemental Indenture dated as of ____, 2003 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
a Purchase Agreement dated June ___, 2003, among the Company and the initial
purchasers named in Schedule I thereto (the "Initial Purchasers") for whom you
are acting as Representatives (the "Purchase Agreement"). The Notes are subject
to the Registration Rights Agreement dated the date hereof by and among the
Company and the Representatives (the "Registration Rights Agreement"). This
opinion is being delivered to you as Representatives pursuant to Section 5(c)(4)
thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Purchase Agreement.
In rendering the opinions expressed below, we have examined the
Offering Memorandum dated _________, 2003 (the "Offering Memorandum"), the
Indenture, the Notes, the Registration Rights Agreement and the Purchase
Agreement.
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Notes, of which
we have examined specimens), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
The Indenture, the Registration Rights Agreement, the Notes and the
Purchase Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion:
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 and to own and operate the
properties used by it in such business as described in the Offering Memorandum
and to enter into and perform its obligations under the Agreements.
2. The execution, delivery and performance by the Company of the
Purchase Agreement have been duly authorized by all necessary corporate action,
and the Purchase Agreement has been duly executed and delivered by the Company.
3. All orders, consents, or other authorizations or approvals of the
Commission legally required under the Public Utility Holding Company Act of
1935, as amended, for the issuance and delivery of the Notes have been obtained;
such orders are sufficient for the issuance and delivery of the Notes; the
issuance and delivery 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 New York or 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 delivery of the Notes in accordance with the terms
of the Purchase 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 Offering Memorandum.
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 Initial Purchasers pursuant to the Purchase
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
Offering Memorandum.
6. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, except to the extent that the enforceability of the Company's
obligations under the Registration Rights Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except to the extent indemnification or
contribution provisions thereunder may be limited under applicable law; the
Registration Rights Agreement conforms in all material respects to all
statements relating thereto in the Offering Memorandum.
7. Assuming (a) the accuracy of the representations and warranties of
the Company set forth in Section 1 of the Purchase Agreement and of the Initial
Purchasers set forth in Section 2 of the Purchase Agreement, (b) the due
performance by the Company of the covenants and agreements set forth in Section
3 of the Purchase Agreement and the due performance by the Initial Purchasers of
the covenants and agreements set forth in Section 2 of the Purchase Agreement,
(c) compliance by the Initial Purchasers with the offering and transfer
procedures and restrictions described in the Offering Memorandum and (d) the
accuracy of the representations and warranties made in accordance with the
Offering Memorandum by purchasers to whom the Initial Purchasers initially
resells the Notes, the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by the Purchase Agreement and the Offering
Memorandum and the initial resale of the Notes by the Initial Purchasers in the
manner contemplated in the Offering Memorandum and the Purchase Agreement do not
require registration of the Notes under the Securities Act (it being understood
that we express no opinion as to any subsequent resale of any Notes) and the
Indenture is not required to be qualified under the Trust Indenture Act.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Offering Memorandum and take
no responsibility therefor, except as and to the extent set forth in paragraphs
4, 5 and 6 above. In the course of the preparation by the Company of the
Offering Memorandum, 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 Offering Memorandum, our
investigations made in connection with the preparation of the Offering
Memorandum and our participation in the conferences referred to above, nothing
came to our attention which gives us reason to believe that the Offering
Memorandum, as of its date, contained, or on the date hereof contains, any
untrue statement of a material fact or omitted as of its date or omits as of the
date hereof to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, except that in
each case we express no opinion or belief with respect to (i) the financial
statements or other financial or statistical data contained in the Offering
Memorandum or (ii) the Independent Engineer's Report or the Independent Market
Expert's Report attached as Annex A and Annex B, respectively, to the Offering
Memorandum.
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
and the federal law of the United States and the general corporation law of the
State of Delaware.
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 their
opinions (i) pursuant to Section 5 of the Purchase Agreement, insofar as such
opinions relate to matters of New York law, and (ii) pursuant to Sections 102,
302 and 904 of the Indenture, insofar as such opinion relates to matters of New
York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
