Exhibit 1
$300,000,000 Series E Floating Rate Senior Notes
Due February 22, 2002
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
c/o
Bear, Xxxxxxx & Co. Inc.
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 as the 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 $300,000,000 aggregate
principal amount of the Series E Floating Rate Senior Notes due February 22,
2002 (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 The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a fifth supplemental indenture, dated as of February
22, 2000 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 22, 2000 (the "Calculation Agent Agreement"), between the Company and
The Chase Manhattan 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. 333-75193,
000-00000-00 and 333-75193-02), 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(g) 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
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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 E 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, in the light of the circumstances under which they were made,
not misleading; 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) (collectively, the "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 E 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.
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(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.
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(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 (the "1935 Act"); (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.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS;
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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 Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of Section 10
hereof), at a price equal to 100% 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 22, 2000 (unless postponed in accordance with the provisions
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of Section 10) or such other time, place or date as shall be agreed upon by
the 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. It is understood that Bear,
Xxxxxxx & Co. Inc. will accept delivery of, receipt for, and make payment of
the principal amount of the Senior Notes which the Underwriters have
agreed to purchase.
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
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
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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 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) 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
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Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement).
(f) 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.
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 UNDERWRITER'S 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.
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(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 and the Calculation
Agent, substantially in the form attached hereto as
Schedule III.
(3) The opinion, dated as of 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
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.
(5) On the Closing Date, the Underwriters shall have
received from Xxxxxx Xxxxxxxx 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; (B) in their
opinion, the financial statements audited by them and
incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
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accounting requirements of the 1934 Act and the rules
and regulations under the 1934 Act; and (C) on the
basis of certain limited procedures performed through a
specified date not more than five business days prior
to the date of such letter, namely (i) reading the
minute books of the Company; (ii) performing the
procedures specified by the American Institute of
Certified Public Accountants ("AICPA") for a review of
interim financial information as described in Statement
on Auditing Standards No. 71, "Interim Financial
Information", 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 Xxxxxx Xxxxxxxx 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, Income Before
Interest and Other Charges and Net Income After
Dividends on Preferred Stock and the unaudited Ratios
of Earnings to Fixed Charges and Earnings to Fixed
Charges Plus Preferred Dividends Requirements
(Pre-Income Tax Basis) set forth in the Final
Supplemented Prospectus do not agree with the amounts
set forth in or derived from the unaudited financial
statements for the same period or were not determined
on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in 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
audited 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 under existing
pollution control financing arrangements, (iv) are
occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or
stock to satisfy mandatory or optional redemption
provisions relating thereto, or (vi) are disclosed in
such letter; and (5) the unaudited amounts for
Operating Revenues, Income Before Interest and Other
Charges and Net Income After Dividends Preferred Stock
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and the unaudited Ratios of 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 or were not determined
on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the 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 Underwriters 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 Underwriters,
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 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.
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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
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.
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SECTION 7. INDEMNIFICATION.
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(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 Underwriters 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
12
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 on
behalf of the Underwriters 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, (ii) minimum or maximum
ranges for prices shall have been generally established on
the New York Stock Exchange by the Commission or by the New
York Stock Exchange, (iii) a general banking moratorium
shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak
or escalation of major hostilities in which the United
States is involved, any declaration of war by the United
States Congress or any other substantial national or
international calamity or emergency affecting the United
States, in any such case provided for in clauses (i) through
(iv) with the result that, in the reasonable judgement of
the Underwriters, the marketability of the Senior Notes
shall have been materially impaired.
14
(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, 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 Bear,
Xxxxxxx & Co., Debt Capital Markets, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
14
New York 10167 and Chase Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000; 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: Xxxxxxx X.
Xxxxxxx.
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 any of
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.
15
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
Bear, Xxxxxxx & Co. Inc.
On behalf of the Underwriters
named in Schedule I hereto
By: ___________________________
Title:
SCHEDULE I
Principal Amount of
Name of Underwriters Senior Notes
Bear, Xxxxxxx & Co. Inc. $150,000,000
Chase Securities Inc. $150,000,000
------------
TOTAL: $300,000,000
------------
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
________ __, 2000
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GEORGIA POWER COMPANY
Series E Floating Rate Senior Notes due February 22, 2002
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
$300,000,000 aggregate principal amount of its Series E Floating Rate Senior
Notes due February 22, 2002 (the "Notes") pursuant to a Senior Note Indenture
dated as of January 1, 1998, by and between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), as heretofore supplemented and as supplemented
by the Fifth Supplemental Indenture dated as of _____ __, 2000 (collectively,
the "Indenture"); and (ii) the purchase by you of the Notes pursuant to the
terms of an Underwriting Agreement dated ______ __, 2000 (the "Underwriting
Agreement"), among the Company and the underwriters named in Schedule I thereto
(the "Underwriters"). Pursuant to a Calculation Agent Agreement, dated as of
February __, 2000 (the "Calculation Agent Agreement"), between the Company and
The Chase Manhattan 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. This
opinion is being delivered to you as Underwriter pursuant to Section 5(c)(1)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos.333-75193, 000-00000-00 and
333-75193-02) 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 __________, 2000 (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
_________________, the Quarterly Reports on Form 10-Q of the Company for the
quarters ended ________ 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.
2
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 and in the second paragraph under the caption "Experts" on page __
of the Prospectus. 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 Xxxxxx Xxxxxxxx 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
3
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) contains any untrue statement of a material fact or
omits 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 E 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]
_______ __, 2000
Bear Xxxxxxx & Co. Inc.
Chase Securities Inc.
c/o Bear Xxxxxxx & Co. Inc.
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 E Floating Rate Senior Notes
Due February 22, 2002
Dear Sirs:
We have acted as counsel to 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, (b) the Fifth
Supplemental Indenture dated as of February 22, 2000 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee, and (c) the Calculation Agent Agreement, dated as of February 22, 2000
(the "Calculation Agent Agreement"), between the Company and the Bank, as
Calculation Agent.
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, 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 or 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
2
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
________ __, 2000
Bear, Xxxxxxx & Co. Inc.
Chase Securities Inc.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GEORGIA POWER COMPANY
Series E Floating Rate Senior Notes
Due February 22, 2002
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Georgia Power Company (the "Company") of $300,000,000
of its Series E Floating Rate Senior Notes (the "Notes") pursuant to a Senior
Note Indenture dated as of January 1, 1998 by and between the Company and The
Chase Manhattan Bank, as trustee (the "Trustee"), as heretofore supplemented and
as further supplemented by the Fifth Supplemental Indenture dated as of ________
__, 2000 (collectively, the "Indenture"); and (ii) the purchase by you of the
Notes pursuant to the terms of an Underwriting Agreement dated ________ __,
2000, among the Company and the Underwriters (the "Underwriting Agreement").
Pursuant to a Calculation Agent Agreement, dated as of February __, 2000 (the
"Calculation Agent Agreement"), between the Company and The Chase Manhattan
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. This opinion is being delivered to
you as Underwriters pursuant to Section 5(c)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-75193, 000-00000-00 and
333-75193-02) 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 _______, 2000, which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended ____________, the Quarterly Reports on Form 10-Q of the Company for the
quarters ended _________ 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 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
2
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 Xxxxxx Xxxxxxxx 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 ______, 2000, 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
3
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) contains any untrue statement of a
material fact or omits 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 E 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
