Exhibit 1.2
$125,000,000 Series W 6% Senior Notes
due August 15, 2044
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
August 11, 0000
Xxxx xx Xxxxxxx Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"), confirms its
agreement (the "Agreement") with you and each of the other Underwriters named in
Schedule I hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom you are acting as representatives (in such capacity you shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the Company and the purchase by the Underwriters, acting severally and not
jointly, of $125,000,000 aggregate principal amount of the Series W 6% Senior
Notes due August 15, 2044 (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 Representatives deem advisable after
this Agreement has been executed and delivered. The Senior Notes will be issued
pursuant to an indenture, dated as of January 1, 1998 (the "Base Indenture"), by
and between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented and
amended and as to be further supplemented and amended by a twenty-third
supplemental indenture, dated as of August 20, 2004, to the Base Indenture
relating to the Senior Notes (the "Supplemental Indenture" and, together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-105815,
000-000000-00, 000-000000-00, 000-000000-00 and 333-105815-04) 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 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 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 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(f) hereof,
including any documents incorporated by reference therein as of the date of
such filing, being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through the
Representatives expressly for use in the Final Supplemented Prospectus; or
(B) any information set forth in the Final Supplemented Prospectus under
the captions "Description of the Series W Senior Notes-- Book-Entry Only
Issuance-- The Depository Trust Company", "The Policy and the Insurer-- The
Insurer" and "The Policy and the Insurer-- The Insurer's Credit Ratings"
and the final two paragraphs under the caption "Experts" or in Appendix A
thereto.
(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 (as
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 date of the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the case of the Registration
Statement and any amendment thereto, and, in the light of the circumstances
under which they were made, not misleading in the case of the Final
Supplemented Prospectus and any Prospectus as further amended or
supplemented; except that the Company makes no warranties or
representations with respect to: (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "1939 Act"); (B)
statements or omissions made in the Registration Statement or the Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through the
Representatives expressly for use therein; or (C) any information set forth
in the Final Supplemented Prospectus under the captions "Description of the
Series W Senior Notes-- Book-Entry Only Issuance-- The Depository Trust
Company" and "The Policy and the Insurer-- The Insurer", "The Policy and
the Insurer-- The Insurer's Credit Ratings" and the final two paragraphs
under the caption "Experts" or in Appendix A thereto.
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Georgia and has due corporate authority to carry on the
public utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell
the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will, on the
Closing Date, constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms except to the
extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors' rights
generally or (2) general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all material
respects to all statements relating thereto contained in the Final
Supplemented Prospectus; and, on the Closing Date, the Indenture will have
been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized
by the Company and, on the Closing Date, the Senior Notes will have been
duly executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described in
the Final Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions, will be in the form
contemplated by, and entitled to the benefits of, the Indenture and will
conform in all material respects to all statements relating thereto in the
Final Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by the
Company of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder shall have
been duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter or
bylaws of the Company, and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may
be bound or to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(k) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guaranty insurance policy
(the "Insurance Policy") issued by Financial Guaranty Insurance Company
(the "Insurer"), insuring the payment of principal and interest on the
Senior Notes, when due.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the transactions by
the Company contemplated in this Agreement, except (A) such as may be
required under the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding Company Act of
1935, as amended; (C) the qualification of the Indenture under the 1939
Act; (D) the approval of the Georgia Public Service Commission (the
"Georgia Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or "blue sky" laws.
(m) The financial statements incorporated by reference in the Registration
Statement 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 UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of Senior Notes set forth in Schedule I to
this Agreement opposite the name of such Underwriter (plus any additional
amount of Senior Notes that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof), at a price equal
to 96.85% of the principal amount thereof.
(b) Payment of the purchase price and delivery of certificates for the
Senior Notes shall be made at the offices of Xxxxxxxx Xxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx at 10:00 A.M., New York
time, on August 20, 2004 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be
agreed upon by the Representatives and the Company (such time and date of
payment and delivery being herein called the "Closing Date"). Payment shall
be made to the Company by wire transfer in federal funds at the Closing
Date against delivery of the certificates for Senior Notes to the
Representatives. It is understood that each Underwriter has authorized the
Representatives, for each Underwriter's account, to accept delivery of,
receipt for and make payment of the principal amount of the Senior Notes
which each Underwriter has agreed to purchase. The Representatives,
individually and not as a representative of the Underwriters, may (but
shall not be obligated to) make payment of the principal amount of the
Senior Notes to be purchased by any Underwriter whose payment has not been
received by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully registered form,
registered in the name of CEDE & CO., to the offices of The Depository Trust
Company in New York, New York or its designee, and the Underwriters shall accept
such delivery.
The certificate(s) for the Senior Notes will be made available for
examination by the Representatives 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 Representatives
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
Representatives 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 0000 Xxx.
(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 in order
to make the Final Supplemented Prospectus not misleading in the light of
the circumstances when it is delivered, or if for any other reason it shall
be necessary during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus or the 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 Representatives 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 Representatives 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 0000 Xxx) 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) The Company will use its best efforts to effect the listing of the
Senior Notes on the New York Stock Exchange.
(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 Representatives of such filing and to confirm such advice in writing.
(g) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representatives' 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 and the Company's Series V Senior
Notes due August 15, 2009). The Representatives agree that (i) commercial
paper or other debt securities with scheduled maturities of less than one
year and (ii) senior notes issued in denominations other than $25 per note
and not listed on a national securities exchange are not subject to this
Section 3(g).
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 counsel for the Underwriters
(including the fees and disbursements referred to in (iv) below) and 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, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Senior Notes, (ix) any fees payable in
connection with the rating of the Senior Notes, (x) the fees and expenses
incurred in connection with the listing of the Senior Notes on the New York
Stock Exchange, (xi) the premium payable to the Insurer in connection with the
issuance of the Insurance Policy, (xii) the cost and charges of any transfer
agent or registrar and (xiii) 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.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for that
purpose shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. If filing of the Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus and any such supplement shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in accordance with
the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representatives, 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 Representatives 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 Cravath, Swaine & Xxxxx
LLP, counsel to the Trustee, substantially in the form attached hereto as
Schedule III.
(3) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, substantially in the form attached hereto as
Schedule IV.
(4) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V
(d) 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
Representatives 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.
(e) On the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the effect that: (A)
they are an independent registered public accounting firm 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 standards
of the Public Company Accounting Oversight Board (United States) ("PCAOB") for a
review of interim financial statement information as described in PCAOB Interim
Standard AU 722, "Interim Financial Information", on the unaudited financial
statements, if any, of the Company incorporated by reference in the Final
Supplemented Prospectus and on 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 Final Supplemented Prospectus;
and (iii) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such unaudited
financial statements or any specified unaudited amounts derived therefrom (it
being understood that the foregoing procedures do not constitute an audit
performed in accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche LLP make no
representations as to the sufficiency of such procedures for the Underwriters'
purposes), nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed financial
statements, if any, incorporated by reference in the Final Supplemented
Prospectus, for them to be in conformity with generally accepted accounting
principles; (2) such unaudited condensed financial statements do not comply as
to form in all material respects with the applicable accounting requirements of
the 1934 Act as it applies to Form 10-Q and the related published rules and
regulations thereunder; (3) the unaudited amounts for Operating Revenues,
Earnings Before Income Taxes and Net Income After Dividends on Preferred Stock
and the unaudited Ratio of Earnings to Fixed Charges 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 included or
incorporated by reference in the Registration Statement; (4) as of a specified
date not more than five business days prior to the date of delivery of such
letter, there has been any change in the capital stock or long-term debt of the
Company or any decrease in net assets as compared with amounts shown in the
latest unaudited balance sheet incorporated by reference in the Final
Supplemented Prospectus, except in each case for changes or decreases which (i)
the Final Supplemented 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 Ratio of Earnings to Fixed Charges for any calendar quarter subsequent
to those set forth in (3) above, which, if available, shall be set forth in such
letter, do not agree with the amounts set forth in or derived from the unaudited
financial statements for the same period or were not determined on a basis
substantially consistent with that of the corresponding audited amounts or
ratios included or incorporated by reference in the Final Supplemented
Prospectus.
(f) 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 Representatives and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters.
(g) On the Closing Date, the Senior Notes shall have been approved for
listing on the New York Stock Exchange upon notice of issuance.
(h) 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
0000 Xxx) 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 Representatives, shall materially impair the marketability of
the Senior Notes.
(i) The Company shall have performed its obligations when and as provided
under this Agreement.
(j) On the Closing Date, the Representatives shall have received evidence
that the Insurance Policy has been issued by the Insurer and confirmation that
the Senior Notes have been rated at least "Aaa" by Xxxxx'x Investors Service,
Inc. and at least "AAA" by Standard & Poor's, a division of The XxXxxx-Xxxx
Companies.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time prior to the Closing Date,
and such termination shall be without liability of any party to any other party
except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the conditions set forth
in 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
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
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, the 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 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
any Underwriter through the Representatives for use therein and except that this
indemnity with respect to the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus, if the Company shall have furnished any amendment
or supplement thereto, shall not inure to the benefit of any Underwriter (or of
any person controlling such Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the Senior Notes to any
person if a copy of the Preliminary Prospectus, the Prospectus or the Final
Supplemented Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may then be amended or
supplemented, shall not have been sent or given by or on behalf of such
Underwriter to such person with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue statement or omission or
alleged omission was corrected in the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days after the receipt by it
of notice of the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against an Underwriter or any such person
controlling such Underwriter and such Underwriter shall notify the Company of
the commencement thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including the selection
of counsel, to direct) the defense thereof, at its own expense. In case the
Company elects to direct such defense and select such counsel, any Underwriter
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless the employment of such
counsel has been authorized in writing by the Company in connection with
defending such action. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any liability
or responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter through
the Representatives 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 Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended or
there shall have been a material disruption in settlement in securities
generally, (ii) minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the Commission or by the New York
Stock Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity, 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 Representatives, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representatives pursuant
to subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the 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 Representatives 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 Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the Senior Notes, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representatives or the Company shall have the right
to postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or the 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 Representatives at Banc of America
Securities LLC, 0 Xxxx 00xx Xxxxxx, XX0-000-0X-00, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Transaction Management and Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxx, III;
notices to the Company shall be mailed to 241 Xxxxx XxXxxx Xxxxxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000-0000, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000, Attention: Xxxx X. Xxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from 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.
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 among
the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: /s/Xxxxx Boston
Name: Xxxxx Boston
Title: Assistant Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC OF AMERICA SECURITIES LLC
By: /s/Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Xxxxxx Xxxxxxx & Co. incorporated
By: /s/Xxxxxx X. Xxxxxxxxxx III
Name: Xxxxxx X. Xxxxxxxxxx III
Title:Executive Director
As Representatives of the other Underwriters
named in Schedule I hereto
Schedule I
NAME OF UNDERWRITER Principal Amount of Series W
Senior Notes
Banc of America Securities LLC $25,000,000
Xxxxxx Xxxxxxx & Co. Incorporated $25,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $25,000,000
Wachovia Capital Markets, LLC $25,000,000
SunTrust Capital Markets, Inc. $7,000,000
X.X. Xxxxxxx & Company $2,000,000
BNY Capital Markets, Inc. $2,000,000
Xxxxxxxx & Partners, L.P. $2,000,000
Xxxxxx & Company $2,000,000
Xxxxxxx Securities, LLC $2,000,000
Xxxxxx Xxxxxx & Company, Inc. $2,000,000
X.X. Xxxx & Company $2,000,000
Xxxxxx X. Xxxxxxx & Co., Inc. $2,000,000
The Xxxxxxxx Capital Group, L.P. $2,000,000
TOTAL $125,00,000
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
August [ ], 2004
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
GEORGIA POWER COMPANY
Series W 6% Senior Notes due August 15, 2044
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
$125,000,000 aggregate principal amount of its Series W 6% Senior Notes due
August 15, 2044 (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 Twenty-Third Supplemental Indenture
dated as of August 20, 2004 (collectively, the "Indenture"); and (ii) the
purchase by the Underwriters (as defined herein) of the Notes pursuant to the
terms of an Underwriting Agreement dated August 11, 2004 (the "Underwriting
Agreement"), among the Company and the underwriters named in Schedule I thereof
(the "Underwriters") for whom you are acting as Representatives. 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. 333-105815, 000-000000-00,
000-000000-00, 000-000000-00 and 333-105815-04) 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 June 25, 2003 as supplemented by the prospectus supplement dated
August 11, 2004 (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, 2003 (the "Form 10-K"), the Quarterly Reports
on Form 10-Q of the Company for the quarters ended March 31, 2004 and June 30,
2004 and the Current Reports on Form 8-K of the Company dated January 12, 2004,
January 15, 2004, February 12, 2004, May 7, 2004, May 18, 2004, July 1, 2004 and
August [o], 2004 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Georgia Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with your counsel. Based upon
our examination of the Registration Statement, the Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Final Supplemented Prospectus and
the Exchange Act Documents and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Final Supplemented Prospectus, as of August 11, 2004,
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 captions "Description of the Series W
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company", "The
Policy and the Insurer -- The Insurer" and "The Policy and the Insurer -- The
Insurer's Credit Ratings" and the final two paragraphs under the caption
"Experts" or in Appendix A thereto.
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)(3) 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 LLP]
August [ ], 2004
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Financial Guaranty Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Georgia Power Company
Series W 6% Senior Notes
due August 15, 2044
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Georgia Power Company (the "Company") and
the Bank, as Trustee, and (b) the Twenty-Third Supplemental Indenture dated as
of August 20, 2004 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York;
(ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture, and, insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the Bank of the Indenture
do not conflict with or constitute a breach of the charter or bylaws of the
Bank; and
(iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture or the performance
by the Bank of its duties thereunder, except such as have been obtained, taken
or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & XXXXX LLP
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
August [ ], 2004
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the Several Underwriters
Georgia Power Company
Series W 6% Senior Notes
due August 15, 2044
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $125,000,000 aggregate principal amount
of its Series W 6% Senior Notes due August 15, 2044 (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
Twenty-Third Supplemental Indenture dated as of August 20, 2004 (collectively,
the "Indenture"); and (ii) the purchase by the Underwriters (as defined herein)
of the Notes pursuant to the terms of an Underwriting Agreement dated August 11,
2004 (the "Underwriting Agreement"), among the Company and the underwriters
named in Schedule I thereof (the "Underwriters") for whom you are acting as
Representatives. 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. 333-105815, 000-000000-00,
000-000000-00, 000-000000-00 and 333-105815-04) 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 dated June
25, 2003, as supplemented by a final prospectus supplement relating to the Notes
dated August 11, 2004 (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, 2003 (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended March 31, 2004 and
June 30, 2004 and the Current Reports on Form 8-K of the Company dated January
12, 2004, January 15, 2004, February 12, 2004, May 7, 2004, May 18, 2004, July
1, 2004 and August [o], 2004 (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of Xxxxxxxx Xxxxxxx LLP dated the date
hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged, to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of August 11, 2004, 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 captions "Description of the Series W
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company", "The
Policy and the Insurer -- The Insurer" and "The Policy and the Insurer -- The
Insurer's Credit Ratings" and the final two paragraphs under the caption
"Experts" or in Appendix A thereto.
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 its
opinions (i) pursuant to Section 5(c)(1) of the Underwriting Agreement and to
Sections 102, 302 and 904 of the Indenture and (ii) in connection with the
Company's listing application with respect to the Notes to The New York Stock
Exchange, Inc., insofar as such opinions relate to matters of New York law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
Schedule V
[Letterhead of Financial Guaranty Insurance Company]
August [ ], 2004
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the Several Underwriters
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Georgia Power Company
Series W 6% Senior Notes
due August 15, 2044
Ladies and Gentleman:
I am Senior Counsel of Financial Guaranty Insurance Company ("Financial
Guaranty"), and have been requested to render an opinion concerning the issuance
by Financial Guaranty of its Surety Bond No. ______ (the "Surety Bond") in
connection with the issuance of the captioned obligations (the "Notes"). I have
examined such documents and records as I have deemed relevant for purposes of
this opinion, including (a) the Certificate of Incorporation of Financial
Guaranty, including all amendments thereto, (b) the amended By-laws of Financial
Guaranty as in effect on the date hereof, (c) the certificate of authority
issued to Financial Guaranty by the Superintendent of Insurance of the State of
New York, (d) the certificate of authority issued to Financial Guaranty by the
Commissioner of Insurance of the State of Georgia, (e) the executed Surety Bond,
(f) the statements in the Prospectus Supplement dated August 11, 2004 (the
"Prospectus Supplement") relating to the Notes under the caption "The Policy and
the Insurer" and in Appendix A thereto and (g) the Insurance Agreement, dated as
of August 20, 2004, between Financial Guaranty and Georgia Power Company (the
"Insurance Agreement").
On the basis of the foregoing, it is my opinion that:
(1) Financial Guaranty is a stock insurance corporation validly existing
and in good standing under the laws of the State of New York and
qualified to do business therein and is licensed and authorized to
issue its financial guaranty insurance policies under the laws of the
State of Georgia.
(2) The Surety Bond has been duly authorized, executed and delivered and is
valid and binding upon Financial Guaranty and enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally as such laws would apply in the event of the liquidation,
conservation or rehabilitation of, or other similar occurrence with
respect to Financial Guaranty.
(3) The execution and delivery by Financial Guaranty of the Surety Bond,
and the performance by Financial Guaranty of the terms thereof, will
not: (i) conflict with any of the terms, conditions or provisions of
(A) the Certificate of Incorporation of Financial Guaranty, including
any amendments thereto, (B) the amended By-laws of Financial Guaranty
as in effect on the date hereof, or (C) to my actual knowledge, any
covenant contained in any contract, agreement or instrument to which
Financial Guaranty is bound, which contract, agreement or instrument is
material to the financial condition of Financial Guaranty; (ii) to my
actual knowledge, constitute a default under any such contract,
agreement or instrument or (iii) contravene any law or governmental
regulation or order presently binding on Financial Guaranty the
contravention of which would affect the validity and enforcement of the
Surety Bond.
(4) The Insurance Agreement has been duly authorized, executed and
delivered by Financial Guaranty and, assuming the due authorization,
execution and delivery thereof by Georgia Power Company, constitutes a
valid and legally binding instrument of Financial Guaranty, enforceable
against Financial Guaranty in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws affecting
the enforcement of creditors' rights generally as such laws would apply
in the event of the liquidation, conservation or rehabilitation of, or
other similar occurrence with respect to, Financial Guaranty.
(5) Financial Guaranty, as an insurance company, is not eligible for relief
under the Federal Bankruptcy Laws. Any proceedings for the liquidation,
conservation or rehabilitation of Financial Guaranty would be governed
by the provisions of the Insurance Law of the State of New York.
(6) The statements described above in the Prospectus Supplement relating to
Financial Guaranty and the Surety Bond accurately and fairly present
the summary information set forth therein and do not omit any material
fact with respect to the description of Financial Guaranty relative to
the material terms of the Surety Bond or the ability of Financial
Guaranty to meet its obligations under the Surety Bond, except that no
opinion is expressed as to any financial statements or other financial
information included or referred to in, or incorporated by reference
into, the Prospectus Supplement relating to Financial Guaranty, and no
opinion is expressed as to the omission of Financial Guaranty's
financial statements from the Prospectus Supplement. The form of Surety
Bond contained in the Prospectus Supplement is a true and complete form
of the Surety Bond.
(7) The Surety Bond constitutes an "insurance policy" within the meaning of
Section 3(a)(8) of the Securities Act of 1933, as amended (the "Act"),
and is not required to be registered under the Act.
Very truly yours,
Senior Counsel
