Exhibit 1.3
$50,000,000 Series P Floating Rate Senior Notes
due April 15, 2005
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
April 11, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with you (the "Underwriter") with
respect to the sale by the Company and the purchase by the Underwriter of
$50,000,000 aggregate principal amount of the Series P Floating Rate Senior
Notes due April 15, 2005 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter deems advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and amended and as to be further supplemented and amended by a
sixteenth supplemental indenture, dated as of April 15, 2003, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture" and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
Pursuant to a Calculation Agent Agreement, dated as of
February 15, 2003 (the "Calculation Agent Agreement"), between the Company and
JPMorgan Chase Bank, as calculation agent thereunder (the "Calculation Agent"),
the Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriter 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 Underwriter, 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 Underwriter need
not include exhibits but shall include all documents incorporated by reference
therein); and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated
or, to the best knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus supplement,
included in such registration statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the 1933 Act,
being hereinafter called a "Preliminary Prospectus"); such registration
statement, as it became effective, including the exhibits thereto and all
documents incorporated by reference therein pursuant to Item 12 of Form S-3 at
the time such registration statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the Senior
Notes in the form in which it is filed with the Commission, pursuant to Rule
424(b) under the 1933 Act in accordance with Section 3(e) hereof, including any
documents incorporated by reference therein as of the date of such filing, being
hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement or
Prospectus, when they were filed with the Commission, complied in all material
respects with the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such time of filing, when
read together with the Prospectus, none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are filed with the
Commission, will comply in all material respects with the applicable provisions
of the 1934 Act and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriter 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 Underwriter 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 P Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments are
declared effective or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable provisions of the
1933 Act, the 1934 Act, the 1939 Act (hereinafter defined) and the General Rules
and Regulations of the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement and any amendment
thereto and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in the light of the
circumstances under which they were made, not misleading in the case of the
Final Supplemented Prospectus and any Prospectus as further amended or
supplemented; except that the Company makes no warranties or representations
with respect to: (A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "1939 Act"); (B) statements or omissions made in
the Registration Statement or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein; or (C) any information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series P
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use of Form
S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws of
the State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business, to enter into and perform its obligations under
this Agreement and the Indenture and to issue and sell the Senior Notes to the
Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the Closing
Date, will have been duly executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the Indenture by the Trustee, the
Indenture will, on the Closing Date, constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally or (2)
general principles of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity) (the "Enforceability Exceptions"); the
Indenture will conform in all material respects to all statements relating
thereto contained in the Final Supplemented Prospectus; and, on the Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized by
the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(j) The Calculation Agent Agreement has been duly authorized by the Company and,
on the Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Calculation Agent
Agreement by the Calculation Agent, the Calculation Agent Agreement will, on the
Closing Date, constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions.
(k) The execution, delivery and performance by the Company of this Agreement,
the Calculation Agent Agreement, the Indenture and the Senior Notes and the
consummation by the Company of the transactions contemplated herein and therein
and compliance by the Company with its obligations hereunder and thereunder
shall have been duly authorized by all necessary corporate action on the part of
the Company and do not and will not result in any violation of the charter or
bylaws of the Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its properties
may be subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company, or any of its properties.
(l) No authorization, approval, consent or order of any court or governmental
authority or agency is necessary in connection with the issuance and sale by the
Company of the Senior Notes or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under the 1933 Act or the
rules and regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended; (C) the qualification of the
Indenture under the 1939 Act; (D) the approval of the Georgia Public Service
Commission (the "Georgia Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the Registration
Statement and the 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 Final Supplemented Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited and unaudited financial statements incorporated by reference in the
Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITER; 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 the Underwriter and the Underwriter agrees to purchase from the Company,
$50,000,000 aggregate principal amount of Senior Notes at a price equal to
100.00% of the principal amount thereof.
(b) Payment of the purchase price for and delivery of certificates for the
Senior Notes shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York time, on April
15, 2003 or such other time, place or date as shall be agreed upon by the
Underwriter 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 to the
Underwriter of certificates for the Senior Notes to be purchased by it.
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
Underwriter shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter 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
Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriter 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 Underwriter 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
Underwriter 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) and, from time to time, as
many copies of the Prospectus and the Final Supplemented Prospectus as the
Underwriter may reasonably request for the purposes contemplated by the 1933 Act
or the 1934 Act.
(b) The Company will furnish the Underwriter 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 Underwriter 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 Underwriter,
shall occur, which in the opinion of the Company or of Underwriter's counsel
should be set forth in a supplement to or an amendment of the Final Supplemented
Prospectus, as the case may be, in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Prospectus in order to
comply with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify
the Underwriter to suspend solicitation of purchases of the Senior Notes and
(ii) at its expense, make any such filing or prepare and furnish to the
Underwriter 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 the 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 the Underwriter, will
furnish to the Underwriter, at the expense of the 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
Underwriter and Xxxxx Xxxxxxxxxx LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, 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 Underwriter
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 Underwriter 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 Underwriter's prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose of,
any Senior Notes or any security convertible into or exchangeable into or
exercisable for the Senior Notes or any debt securities substantially similar to
the Senior Notes (except for the Senior Notes issued pursuant to this Agreement,
the Series N 5.750% Senior Notes due April 15, 2023 and the Series O 5.90%
Senior Notes due April 15, 2033). The Underwriter agrees that commercial paper
or other debt securities with scheduled maturities of less than one year are not
subject to this Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter 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 Underwriter 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 Underwriter 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
Underwriter shall pay all the 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 Underwriter to purchase and pay for the Senior Notes are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriter or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Underwriter, are deemed acceptable to the Underwriter and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriter 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 Underwriter 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
I.
(2) The opinion, dated the Closing Date, of Xxxxxxx, Swaine & Xxxxx LLP,
counsel to the Trustee and the Calculation Agent, substantially in the
form attached hereto as Schedule II.
(3) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP, counsel
for the Underwriter, substantially in the form attached hereto as
Schedule III.
(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 Underwriter 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 such Officer, threatened by the
Commission.
(5) On the Closing Date, the Underwriter 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; (B) in their opinion, the financial statements audited by
them and incorporated by reference in the Final Supplemented Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules and regulations
under the 1934 Act; and (C) on the basis of certain limited procedures
performed through a specified date not more than 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 by reference
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 by reference 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 Underwriter's purposes),
nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed
financial statements, if any, incorporated by reference in the
Prospectus, for them to be in conformity with GAAP; (2) such unaudited
condensed financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act as
it applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Earnings
Before 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 (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 by reference 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, (v) are occasioned by
reclassification of current maturities of long-term debt or (vi) are
disclosed in such letter; and (5) the unaudited amounts for Operating
Revenues, Earnings Before 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 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 Underwriter 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 Underwriter and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriter.
(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
Underwriter) which, in the reasonable judgment of the Underwriter,
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 Underwriter 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 Underwriter. 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 the Underwriter and each
person, if any, who controls the 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
the 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 Underwriter any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are incorporated by
reference therein, 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
Underwriter for use therein and except that this indemnity with respect to the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, if
the Company shall have furnished any amendment or supplement thereto, shall not
inure to the benefit of the Underwriter (or of any person controlling the
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 the 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. The 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 the Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to the 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 the Underwriter or any such person controlling the Underwriter and the
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, the 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 the 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) The Underwriter agrees to indemnify and hold harmless the Company, its
directors and such of its officers who have signed the Registration Statement
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act to the same extent and upon
the same terms as the indemnity agreement of the Company set forth in Section
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 the 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 the Underwriter or controlling person, or
by, or on behalf of the Company and shall survive delivery of the Senior Notes
to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Underwriter 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
Underwriter, the marketability of the Senior Notes shall have been materially
impaired.
(b) If this Agreement shall be terminated by the Underwriter 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 Underwriter 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 Underwriter 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. 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 Underwriter shall be
directed to 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 11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriter, 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 Underwriter 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 Underwriter 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 Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 12. 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 13. 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 Underwriter 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
XXXXXXX, XXXXX & CO.
By: ___________________________
(Xxxxxxx, Xxxxx & Co.)
Schedule I
[Letterhead of XXXXXXXX XXXXXXX LLP]
April 15, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
GEORGIA POWER COMPANY
Series P Floating Rate Senior Notes due April 15, 2005
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) the Company's issuance and sale of $50,000,000
aggregate principal amount of its Series P Floating Rate Senior Notes due April
15, 2005 (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 Sixteenth Supplemental Indenture dated
as of April 15, 2003 (collectively, the "Indenture"); and (ii) the purchase by
you of the Notes pursuant to the terms of an Underwriting Agreement dated April
11, 2003 (the "Underwriting Agreement"). Pursuant to a Calculation Agent
Agreement, dated as of February 15, 2003 (the "Calculation Agent Agreement"),
between the Company and JPMorgan Chase Bank , as calculation agent thereunder
(the "Calculation Agent"), the Company has engaged the Calculation Agent to
perform certain services with respect to the floating interest rate on the
Notes. 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 February 13, 2003 as
supplemented by the prospectus supplement dated April 11, 2003 (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, 2002 (the "Form 10-K") and the Current Reports on Form 8-K of the Company
dated February 13, 2003, February 21, 2003 and April 10, 2003 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia, and has due corporate authority to carry on the public utility business
in which it is engaged, to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Calculation Agent Agreement and the Indenture
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Calculation Agent
and the Trustee, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by 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 April 11, 2003,
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 the date
of filing of the Form 10-K (including the Exchange Act Documents on file with
the Commission as of such date), contained any untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Final Supplemented Prospectus (including the Exchange Act Documents) contained,
as of its date, or contains, on the date hereof, any untrue statement of a
material fact or omitted, as of its date, or omits, on the date hereof, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series P
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 II
[Letterhead of Cravath, Swaine & Xxxxx LLP]
April 15, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series P Floating Rate Senior Notes
due April 15, 2005
Ladies and Gentlemen:
We have acted as counsel to (i) JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Georgia Power Company (the "Company") and
the Bank, as Trustee, and (b) the Sixteenth Supplemental Indenture dated as of
April 15, 2003 (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 15, 2003, between the Company
and the Bank, as Calculation Agent (the "Calculation Agent Agreement"),
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, 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, SWAINE & XXXXX LLP
Schedule III
[Letterhead of XXXXX XXXXXXXXXX LLP]
April 15, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
GEORGIA POWER COMPANY
Series P Floating Rate Senior Notes
due April 15, 2005
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $50,000,000 of its Series P Floating
Rate Senior Notes due April 15, 2005 (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
Sixteenth Supplemental Indenture dated as of April 15, 2003 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated April 11, 2003, between the Company and you (the
"Underwriting Agreement"). Pursuant to a Calculation Agent Agreement, dated as
of February 15, 2003 (the "Calculation Agent Agreement"), between the Company
and JPMorgan Chase Bank , as calculation agent thereunder (the "Calculation
Agent"), the Company has engaged the Calculation Agent to perform certain
services with respect to the floating interest rate on the Notes. 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 February 13, 2003, as supplemented by a final prospectus supplement
relating to the Notes dated April 11, 2003, 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, 2002 (the "Form 10-K") and the Current Reports on
Form 8-K of the Company dated February 13, 2003, February 21, 2003 and April 10,
2003 (the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of Xxxxxxxx Xxxxxxx LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter 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 April 11, 2003, 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 the date of filing
of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contained, as of
its date, or contains, on the date hereof, any untrue statement of a material
fact or omitted, as of its date, or omits, on the date hereof, to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series P
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
