Exhibit 1
$250,000,000 Series L Floating Rate Senior Notes
due February 18, 2005
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
February 13, 2003
Barclays Capital Inc.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Georgia Power Company, a Georgia 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 10 hereof) for whom you are acting as representative (in such capacity,
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $250,000,000 aggregate principal amount of the Series L
Floating Rate Senior Notes due February 18, 2005 (the "Senior Notes") as set
forth in Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representative deems
advisable after this Agreement has been executed and delivered. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and amended and as to be further supplemented and amended by a
twelfth supplemental indenture, dated as of February 19, 2003, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture", and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of
February 15, 2003 (the "Calculation Agent Agreement"), between the Company and
JPMorgan Chase Bank, as calculation agent thereunder (the "Calculation Agent"),
the Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos.
333-102839, 000-000000-00, and 333-102839-02), 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, as amended, and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in
such form (except that copies of the registration statement, as
amended, and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or, to the best knowledge of the Company, threatened by the
Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the 1933 Act,
being hereinafter called a "Preliminary Prospectus"); such
registration statement, as it became effective, including the
exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating to the
Senior Notes, in the form in which it was included in the
Registration Statement at the time it became effective, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective date
of the Registration Statement that is incorporated by reference
in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to
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 3(e) hereof, including any documents
incorporated by reference therein as of the date of such filing,
being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the
Commission thereunder, and as of such time of filing, when read
together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are
filed with the Commission, will comply in all material respects
with the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read together
with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that 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 the Underwriters expressly
for use in the Final Supplemented Prospectus; or (B) any
information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series L Senior Notes--
Book-Entry Only Issuance-- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or
supplements to the Registration Statement or the Prospectus, when
any such post-effective amendments are declared 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 do not and will not, (i) as of the
applicable effective date as to the Registration Statement and
any amendment thereto and (ii) as of the applicable filing date
as to the Final Supplemented Prospectus and any Prospectus as
further amended or 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 Final Supplemented Prospectus and
any Prospectus as further amended or supplemented; except that
the Company makes no warranties or representations with respect
to (A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), (B)
statements or omissions made in the Registration Statement or the
Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the caption
"Description of the Series L Senior Notes-- Book-Entry Only
Issuance-- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for
use of Form S-3, as set forth in the General Instructions
thereof, have been satisfied.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus,
except as otherwise stated therein, there has been no material
adverse change in the business, properties or financial condition
of the Company.
(f) The Company is a corporation duly organized and existing under
the laws of the State of Georgia and has due corporate authority
to carry on the public utility 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.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) 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 Final Supplemented Prospectus; and, on the Closing Date, the
Indenture will have been duly qualified under the 1939 Act.
(i) 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 Final
Supplemented Prospectus, 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
respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The Calculation Agent 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 Calculation Agent Agreement by the
Calculation Agent, the Calculation Agent Agreement will, on the
Closing Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent 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.
(l) 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) such as may be required
under the Public Utility Holding Company Act of 1935, as amended;
(C) the qualification of the Indenture under the 1939 Act; (D)
the approval of the Georgia Public Service Commission (the
"Georgia Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the
Registration Statement and the 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 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 financial data and the
summary financial information included in the 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.
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(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, and each Underwriter,
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 Underwriter (plus any additional
amount of the Senior Notes that such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof), at a
price equal to 99.750% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Xxxxxxxx Xxxxxxx LLP, Bank of
America Plaza, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx at 10:00
A.M., Atlanta time, on February 19, 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 Representative 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 the Representative. It is understood that each Underwriter has
authorized the Representative, 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. The Representative, individually
and not as 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 Representative not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(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 Representative orally of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement, or the institution of
any proceedings therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Company will deliver to the
Representative sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with 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 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
Underwriters, 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 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 Preliminary
Prospectus or 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 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 Representative and Xxxxx Xxxxxxxxxx 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
Representative 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, to file the
Final Supplemented Prospectus with the Commission and to advise the
Representative of such filing and to confirm such advice in writing.
(f) During a period of 15 days from the date of this Agreement, the Company
will not, without the Representative's prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any 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 Representative agrees that commercial paper or other debt
securities with scheduled maturities of less than one year are not subject to
this Section 3(f).
SECTION 4. 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 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
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 and the
Calculation Agent, including the fees and disbursements of counsel for the
Trustee and the Calculation Agent in connection with the Calculation Agent
Agreement, the Indenture and the 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 9 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, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. 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 shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. If filing of the Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in accordance with
the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representative, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the Company
unless within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect that such
order contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Xxxxxxxx Xxxxxxx LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II.
(2) The opinion, dated the Closing Date, of Xxxxxxx, Swaine & Xxxxx,
counsel to the Trustee and the Calculation Agent, substantially in the form
attached hereto as Schedule III.
(3) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, substantially in the form attached hereto as
Schedule IV.
(4) At the Closing Date, there shall not have been, since the 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 Representative 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 have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(5) On the Closing Date, the Representative shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the effect that:
(A) they are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the rules and regulations under the
1933 Act; and (B) 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 for a review of interim financial information as
described in Statement on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if any, of the Company
incorporated in the Prospectus and of the latest available unaudited
financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated in the Prospectus; and (iii)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such
unaudited financial statements or any specified unaudited amounts derived
therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that 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 in the Prospectus, for them to be in
conformity with generally accepted accounting principles; (2) such
unaudited condensed financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the 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 Before Interest and Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred Dividend Requirements (Pre Income
Tax Basis) set forth in the Prospectus 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 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 unaudited balance sheet
incorporated in the Prospectus, except in each case for changes or
decreases which (i) the Prospectus discloses have occurred or may occur,
(ii) are occasioned by the declaration of dividends, (iii) are occasioned
by draw-downs and regularly scheduled payments of capitalized lease
obligations, (iv) are occasioned by the purchase or redemption of bonds or
stock to satisfy mandatory or optional redemption provisions relating
thereto, or (v) are disclosed in such letter; and (5) the unaudited amounts
for Operating Revenues, Earnings Before Interest and Income Taxes and Net
Income After Dividends on Preferred Stock and the unaudited Ratios of
Earnings to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre Income Tax Basis) for any calendar quarter
subsequent to those set forth in (3) above, which, if available, shall be
set forth in such letter, do not agree with the amounts set forth in or
derived from the unaudited financial statements for the same period
included or incorporated by reference in the Prospectus. (6) 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
Representative and Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(7) That 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 Xxxxx Xxxxxxxxxx
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 Representative, shall materially impair
the marketability of the Senior Notes.
(8) 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 Representative 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.
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The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. 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 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,
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 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 Prospectus or the
Final Supplemented Prospectus as so amended or supplemented, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
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, Prospectus or Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representative on behalf of, any
Underwriter for use therein and except that this indemnity with respect to the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, if
the Company shall have furnished any amendment or supplement thereto, shall not
inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. 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 7, 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 7. 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
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to
indemnify and hold harmless the Company, 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 7(a) hereof, but only with respect
to alleged untrue statements or omissions made in the Registration Statement,
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
or such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
--------------------------------------------------------------
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the 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 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative 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 Representative, the marketability of the Senior Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representative 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 Xxxxx Xxxxxxxxxx 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 4 and 7.
SECTION 10. 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 Representative 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 Representative 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 Representative 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 or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Barclays Capital Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Transactions Advisory;
notices to the Company shall be mailed to 000 Xxxxx XxXxxx Xxxxxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000-0000, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000, Attention: Xxxx X. Xxxx.
SECTION 12. 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 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters 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 the Underwriters 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 Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
BARCLAYS CAPITAL INC.
As Representative of the Underwriters
named in Schedule I hereto
By: ___________________________
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series L
Senior Notes
Barclays Capital Inc. $175,000,000
Xxxxxxx Securities, LLC $25,000,000
Scotia Capital (USA) Inc. $25,000,000
Sun Trust Capital Markets, Inc. $25,000,000
-----------
TOTAL
$250,000,000
===========
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
February __, 2003
Barclays Capital Inc.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GEORGIA POWER COMPANY
Series L Floating Rate Senior Notes due February 18, 2005
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) the Company's issuance and sale of
$__00,000,000 aggregate principal amount of its Series L Floating Rate Senior
Notes due February __, 200_ (the "Notes") pursuant to a Senior Note Indenture
dated as of January 1, 1998, by and between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), as
heretofore supplemented and as supplemented by the Twelfth Supplemental
Indenture dated as of _____ __, 200_ (collectively, the "Indenture"); and (ii)
the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated February __, 2003 (the "Underwriting Agreement"), among the
Company and the underwriters named in Schedule I thereto (the "Underwriters")
for whom you are acting as Representative (the "Underwriting Agreement").
Pursuant to a Calculation Agent Agreement, dated as of February __, 2003 (the
"Calculation Agent Agreement"), between the Company and JPMorgan Chase Bank , as
calculation agent thereunder (the "Calculation Agent"), the Company has engaged
the Calculation Agent to perform certain services with respect to the floating
interest rate on the Notes. This opinion is being delivered to you as
Representative pursuant to Section 5(c)(1) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-102839, 000-000000-00, and
333-102839-02) pertaining to the Notes and certain other securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), and the prospectus of the Company dated _______________ as
supplemented by the prospectus supplement dated __________, 200_ (the "Final
Supplemented Prospectus"), which pursuant to Form S-3 incorporates by reference
the Annual Report on Form 10-K of the Company for the fiscal year ended December
31, 2001 (the "Form 10 K"), the Quarterly Report on Form 10 Q of the Company for
the quarter ended _________, _________, and ______________ and the Current
Reports on Form 8-K of the Company dated _________________, _________________
and _____________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
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, other than those of the Company, 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 Calculation Agent Agreement, and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based on 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 Xxxxx
Xxxxxxxxxx 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 Georgia, and has due
corporate authority to carry on the public utility 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.
3. All orders, consents or other authorizations or approvals of the
Georgia Public Service Commission and 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 Georgia 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 sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in 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 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 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 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 Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, 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, as of its
effective date, and the Final Supplemented Prospectus, as of _______________,
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 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, as of its
effective date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the 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 Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series L Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the 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, except that Xxxxx Xxxxxxxxxx LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
XXXXXXXX XXXXXXX LLP
Schedule III
[Letterhead of Cravath, Swaine & Xxxxx]
February __, 2003
Barclays Capital Inc.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series L Floating Rate Senior Notes
Due February 18, 2005
Ladies and Gentlemen:
We have acted as counsel to (i) JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Georgia Power Company (the "Company") and
the Bank, as Trustee, and (b) the Twelfth Supplemental Indenture dated as of
_________ __, 2003 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee and (ii) the Bank in
connection with the Calculation Agent Agreement, dated as of February __, 2003,
between the Company and the Bank, as Calculation Agent (the "Calculation Agent
Agreement").
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and the Calculation
Agent Agreement and certain resolutions adopted by the Board of Directors of the
Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a banking
corporation in good standing under the laws of the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute, deliver and
perform its duties under the Indenture and the Calculation Agent Agreement, has
duly executed and delivered the Indenture and the Calculation Agent Agreement,
and, insofar as the laws governing the trust powers of the Bank are concerned
and assuming due authorization, execution and delivery thereof by the Company,
each of the Indenture and the Calculation Agent Agreement constitutes a legal,
valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the
Bank of the Indenture and the Calculation Agent Agreement do not conflict with
or constitute a breach of the charter or bylaws of the Bank; and
(iv) no approval, authorization or other action by,
or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture and the Calculation
Agent Agreement or the performance by the Bank of its duties thereunder, except
such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, XXXXXX & XXXXX
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
February__, 2003
Barclays Capital Inc.
As Representative of the Several Underwriters
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GEORGIA POWER COMPANY
Series L Floating Rate Senior Notes
due February 18, 2005
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $___,000,000 of its Series L Floating
Rate Senior Notes due November 18, 2005 (the "Notes") pursuant to a Senior Note
Indenture dated as of January 1, 1998 (the "Base Indenture"), by and between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
trustee (the "Trustee"), as heretofore supplemented and as further supplemented
by the Twelfth Supplemental Indenture dated as of ________ __, 200_
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated February __, 2003,
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative (the "Underwriting
Agreement"). Pursuant to a Calculation Agent Agreement, dated as of February __,
2003 (the "Calculation Agent Agreement"), between the Company and JPMorgan Chase
Bank, as calculation agent thereunder (the "Calculation Agent"), the Company has
engaged the Calculation Agent to perform certain services with respect to the
floating interest rate on the Notes. This opinion is being delivered to you as
Representative pursuant to Section 5(c)(3) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-102839, 000-000000-00, and
333-102839-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated __________, as supplemented by a final prospectus supplement relating to
the Notes dated _______, 200_, 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, 2001 (the "Form 10 K"), the Quarterly Report of Form 10 Q of
the Company for the quarters ended ____________, ______________, and
____________ and the Current Reports on Form 8-K of the Company dated
_________________, _________________ and _____________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
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, the Calculation Agent Agreement and the
Underwriting 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 aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of Xxxxxxxx Xxxxxxx LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and 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.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and 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 Georgia 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 sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the 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 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 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 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 Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ______, 200_, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the 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, as of its effective date
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the 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 Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Series L 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 and the federal law of the United States, and to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Xxxxxxxx Xxxxxxx LLP may rely on this opinion in giving
their opinions pursuant to Section 5(c) 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,
XXXXX XXXXXXXXXX LLP
