Exhibit 1
$150,000,000 Series M 5.40% Senior Insured Quarterly Notes
due March 1, 2033
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
February 21, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 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) with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of $150,000,000 aggregate
principal amount of the Series M 5.40% Senior Insured Quarterly Notes due March
1, 2033 (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 Underwriters deem 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
thirteenth supplemental indenture, dated as of February 28, 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.
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; the Prospectus as
supplemented by a preliminary prospectus supplement dated February 18, 2003
relating to the Senior Notes, including any documents incorporated by
reference therein as of such date, being hereinafter called the
"Preliminary Supplemented Prospectus"; 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 Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus; or (B) any information set forth in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus under the
captions "Description of the Series M Senior Notes-- Book-Entry Only
Issuance-- The Depository Trust Company", "The Policy and The Insurer" and
"Experts" on page S-10 thereof.
(c) The Registration Statement, the Prospectus, the Preliminary Supplemented
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, (ii) as of the filing date thereof as to the Preliminary
Supplemented Prospectus and (iii) 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, the Preliminary Supplemented Prospectus 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 Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under the captions
"Description of the Series M Senior Notes-- Book-Entry Only Issuance-- The
Depository Trust Company", "The Policy and The Insurer" and "Experts" on
page S-10 thereof.
(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 execution, delivery and performance by the Company of this Agreement,
the Indenture and the Senior Notes and the consummation by the Company of
the transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the Company and
do not and will not result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to which any of
its properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse to
the Company or materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Company, or any of its
properties.
(k) The Company has duly authorized all necessary action to be taken by it for
the procurement of an irrevocable financial guarantee insurance policy (the
"Insurance Policy") issued by XL Capital Assurance Inc. (the "Insurer"),
insuring the payment of principal and interest on the Senior Notes, when
due.
(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, the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus, together with the related schedules and notes,
present fairly, in all material respects, the financial position, results
of operations and cash flows of the Company as of and for the dates
indicated; said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States ("GAAP")
applied on a consistent basis (except that the unaudited financial
statements 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 Registration Statement, the
Preliminary Supplemented Prospectus and the Final Supplemented Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited and unaudited financial
statements incorporated by reference in the Registration Statement. No
material modifications should be made to the unaudited condensed financial
statements incorporated by reference in the Registration Statement, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus
for them to be in conformity with GAAP.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, 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 Senior Notes that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof), at a price
equal to 96.85% 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 28, 2003 (unless postponed in
accordance with the provisions of Section 10) or such other time, place
or date as shall be agreed upon by Underwriters 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 Underwriters.
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 Underwriters 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 Underwriters 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 Underwriters
sufficient conformed copies of the Registration Statement, the Preliminary
Supplemented Prospectus, 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 Preliminary Supplemented Prospectus, 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 Preliminary Supplemented Prospectus and 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 Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus, as the case may be, in order to make the
Preliminary Supplemented Prospectus or 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 Preliminary Supplemented Prospectus or 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 Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus which will
supplement or amend the Preliminary Supplemented Prospectus or 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 Preliminary Supplemented Prospectus or
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 Underwriters 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
Underwriters 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
Underwriters 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 Underwriters' 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 Underwriters agree 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 Preliminary Supplemented Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of the Senior Notes, (x) the
cost and charges of any transfer agent or registrar, (xi) the premium payable to
the Insurer in connection with the issuance of the Insurance Policy, and (xii)
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 Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Preliminary Supplemented Prospectus or 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 Underwriters, 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 Underwriters 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, 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) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V.
(5) 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 Underwriters 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.
(6) On the Closing Date, the Underwriters 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.
(7) 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 Underwriters and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters.
(8) That no amendment or supplement to the Registration Statement, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any filing made by the
Company pursuant to Section 13 or 14 of the 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 Underwriters, shall
materially impair the marketability of the Senior Notes.
(9) The Company shall have performed its obligations when and as provided under
this Agreement.
(10) Evidence that the Insurance Policy has been issued by the Insurer and
confirmation that the Senior Notes have been rated at least "Aaa" by Xxxxx'x
Investors Services, Inc. and at least "AAA" by Standard and Poor's Corporation,
a division of the XxXxxx-Xxxx Companies.
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 Underwriters 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 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
Underwriters. 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 Preliminary Supplemented
Prospectus, 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, the Preliminary Supplemented 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, Preliminary
Supplemented Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by, or through
the Underwriters on behalf of, any Underwriter for use therein and except that
this indemnity with respect to the Preliminary Prospectus, the Prospectus, the
Preliminary Supplemented 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, the Preliminary Supplemented 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,
the Preliminary Supplemented 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 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 Underwriters 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 Underwriters, the marketability of the Senior Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters
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 Underwriters 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 Underwriters 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 Underwriters 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 Underwriters at Xxxxxx X. Xxxxx & Co.,
L.P., 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx Xxxxxxxx 00000, Attention: Legal
Department and Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Credit Capital Markets; 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
XXXXXX X. XXXXX & CO., X.X.
XXXXXXX, XXXXX & CO.
Xxxxxx X. Xxxxx & Co., L.P.
By: ___________________________
Title:
By: ___________________________
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series M
Senior Notes
Xxxxxx X. Xxxxx & Co., L.P. $142,500,000
Xxxxxxx, Xxxxx & Co. $ 7,500,000
-----------
TOTAL $150,000,000
===========
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
February __, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
GEORGIA POWER COMPANY
Series M 5.40% Senior Insured Quarterly Notes due March 1, 2033
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
$150,000,000 aggregate principal amount of its Series M 5.40% Senior Insured
Quarterly Notes due March 1, 2033 (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 Thirteenth
Supplemental Indenture dated as of February 28, 2003 (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"). This opinion is being delivered to you pursuant to Section 5(c)(1)
of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (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 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 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. 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
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 you 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 M Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and "The
Policy and The Insurer".
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
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series M 5.40% Senior Insured Quarterly Notes
due March 1, 2033
Ladies and Gentlemen:
We have acted as counsel to 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 Thirteenth Supplemental Indenture dated as of
_________ __, 2003 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee.
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 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, has duly executed and delivered the
Indenture, 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, the Indenture 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 do not
conflict with or constitute a breach of the charter or bylaws of the Bank; and
(iv) no approval, authorization or other action by,
or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture or the 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
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
GEORGIA POWER COMPANY
Series M 5.40% Senior Insured Quarterly Notes
due March 1, 2033
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $150,000,000 of its Series M 5.40%
Senior Insured Quarterly Notes due March 1, 2033 (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 further supplemented by the
Thirteenth Supplemental Indenture dated as of February 28, 2003 (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 you (the "Underwriting Agreement"). This opinion is being delivered to you
pursuant to Section 5(c)(3) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (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 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 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. 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 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 you 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 captions "Description of the Series M Senior Notes --Book-Entry Only
Issuance --The Depository Trust Company" and "The Policy and The Insurer".
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
Schedule V
[Letterhead of XL CAPITAL ASSURANCE INC.]
February __, 2003
To Each of the Addressees Listed
on the Attached Schedule A
GEORGIA POWER COMPANY
Series M 5.40% Senior Insured Quarterly Notes
due March 1, 2033
Ladies and Gentlemen:
I am [Associate] General Counsel of XL Capital Assurance Inc.,
a New York stock insurance corporation (the "Corporation"), and have acted as
counsel to the Corporation in connection with the issuance of Financial Guaranty
Insurance Policy No. [ ] (the "Policy") relating to the above-captioned notes
(the "Notes").
In so acting, I have examined a copy of (a) the Policy, (b)
the Insurance and Indemnity Agreement, dated as of [ ] (the "Insurance
Agreement"), among [ ], (c) the Indemnification Agreement, dated as of [ ] (the
"Indemnification Agreement"), among [ ], (d) information under the heading "The
Policy and The Insurer" contained in the Prospectus of Georgia Power Company
dated February 13, 2003, as supplemented by a Prospectus Supplement dated
February__, 2003 relating to the Notes (the "Final Supplemented Prospectus") and
(e) such other relevant documents as I have deemed necessary.
Based upon the foregoing, I am of the following opinion:
1. The Corporation is a stock insurance corporation, duly incorporated and
validly existing under the laws of the State of New York and is licensed
and authorized to issue the Policy and to perform its obligations under the
Policy under the laws of the State of New York.
2. The Policy, the Insurance Agreement and the Indemnification Agreement
(collectively, the "Insurance Documents") have been duly executed, and the
Policy, and assuming due authorization, execution and delivery of the
Insurance Agreement and the Indemnification Agreement by the parties
thereto (other than the Corporation), the Insurance Agreement and the
Indemnification Agreement are valid and binding obligations of the
Corporation enforceable in accordance with their terms except that the
enforcement of the Insurance Documents may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and other
similar laws 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 enforceability of
rights to indemnification under the Insurance Agreement and the
Indemnification Agreement may be subject to limitations of public policy
under applicable securities laws.
3. The execution, delivery and performance by the Corporation of its
obligations under the Insurance Documents do not contravene any provision
of the charter or by-laws of the Corporation. The execution, delivery and
performance by the Corporation of its obligations under the Insurance
Documents do not, to the extent that either of the following would affect
the validity or enforceability of any of the Insurance Documents, (a)
contravene any law or government regulation or order presently binding on
the Corporation or (b) contravene any provision of or constitute a default
under any indenture, contract or other instrument to which the Corporation
is a party or by which the Corporation is bound.
4. The Policy is exempt from the registration requirements of the Securities
Act of 1933, as amended (the "Act").
5. The information in the Final Supplemented Prospectus under the heading "The
Policy and The Insurer" is limited and does not purport to provide the
scope of disclosure required to be included in a prospectus with respect to
a registrant under the Act in connection with a public offering and sale of
securities of such registrant. Within such limited scope of disclosure,
however, there has not come to my attention any information that would
cause me to believe that the description of the Corporation referred to
above, as of the date of the Final Supplemented Prospectus and as of the
date hereof, contained or contains 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except that no
opinion is rendered with respect to any financial statements or other
financial information contained or referred to therein).
I am qualified to practice law in the State of New York and do not purport
to be an expert on, or to express any opinion concerning, any law other than the
laws of the State of New York and the federal laws of the United States of
America.
This opinion is being delivered to you in connection with the issuance of
the Policy and the execution of the other Insurance Documents and may not be
relied upon for any other purposes or by any other person without my express
written consent.
Very truly yours,
[Xxxx Xxxx]
[Xxxxx Xxxxxxxxx]
[Xxxx Xxxx Constant]
[Associate] General Counsel
Schedule A
