Exhibit 1.2
$100,000,000 Series N 5.750% Senior Notes
due April 15, 2023
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
April 11, 2003
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 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 the other Underwriter
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 $100,000,000 aggregate principal amount of the Series N 5.750%
Senior Notes due April 15, 2023 (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
fourteenth 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.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-102839,
000-000000-00 and 333-102839-02), in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance with the
provisions of the Securities Act of 1933, as amended (the "1933 Act"), with
the Securities and Exchange Commission (the "Commission"); such
registration statement, as amended, and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in such form
(except that copies of the registration statement, as amended, and any
post-effective amendment delivered to the Underwriters need not include
exhibits but shall include all documents incorporated by reference
therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time
it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(e) hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement or
Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption "Description of the
Series N Senior Notes-- Book-Entry Only Issuance-- The Depository Trust
Company".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act
(hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto
and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
case of the Registration Statement and any amendment thereto, and, in the
light of the circumstances under which they were made, not misleading in
the case of the Final Supplemented Prospectus and any Prospectus as further
amended or supplemented; except that the Company makes no warranties or
representations with respect to: (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "1939 Act"); (B)
statements or omissions made in the Registration Statement or the Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
therein; or (C) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series N Senior Notes--
Book-Entry Only Issuance-- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use of Form
S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws of
the State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell
the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the Closing
Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will
have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized by
the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Final Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions, will be in the form contemplated
by, and entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The 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) 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.
(l) 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, 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 99.101% of the principal amount thereof.
(b) Payment for the purchase price 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 (unless postponed in
accordance with the provisions of Section 10) or such other time, place
or date as shall be agreed upon by 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 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 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) 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.
(f) 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, the Series O 5.90% Senior Notes
due April 15, 2033 and the Series P Floating Rate Senior Notes due April
15, 2005). The Representatives agree that commercial paper or other debt
securities with scheduled maturities of less than one year are not subject
to this Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
Prospectus, the Final Supplemented Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of any
blue sky survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering contemplated by this
Agreement, if applicable, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Senior Notes, (ix) any fees payable in connection with the
rating of the Senior Notes, (x) the cost and charges of any transfer agent or
registrar and (xi) the cost of qualifying the Senior Notes with The Depository
Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes, including fees and disbursements of their
counsel, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the Senior Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement
shall be in effect on the Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company threatened by, the
Commission on such date. If filing of the Final Supplemented Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Final Supplemented
Prospectus and any such supplement, shall have been filed in the manner and
within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission permitting
the transactions contemplated hereby substantially in accordance with the terms
and conditions hereof shall be in full force and effect and shall contain no
provision unacceptable to the Underwriters or the Company (but all provisions of
such order or orders heretofore entered, copies of which have heretofore been
delivered to the 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) 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 such Officer,
threatened by the Commission.
(5) 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
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 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 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 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.
(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
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.
(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 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,
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, or through the Representatives on behalf of, any
Underwriter for use therein and except that this indemnity with respect to the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, if
the Company shall have furnished any amendment or supplement thereto, shall not
inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its officers
who have signed the Registration Statement and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act to the same extent and upon the same terms as the indemnity
agreement of the Company set forth in Section 7(a) hereof, but only with respect
to alleged untrue statements or omissions made in the Registration Statement,
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
or such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representatives on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The 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
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 Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Credit Capital Markets
and Banc One Capital Markets, Inc., 0 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxxxxx, 00000,
Attention: Structuring & Execution; 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 the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC ONE CAPITAL MARKETS, INC.
By: ______________________________
Title:
XXXXXXX, XXXXX & CO.
By: ___________________________
(Xxxxxxx, Sachs & Co.)
Representatives of the other Underwriter
named in Schedule I hereto
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series N
Senior Notes
Banc One Capital Markets, Inc. $ 45,000,000
Xxxxxxx, Xxxxx & Co. $ 45,000,000
Xxxxxxxx & Partners, L.P. $ 10,000,000
-----------
TOTAL $100,000,000
===========
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
April 15, 2003
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the Several Underwriters
GEORGIA POWER COMPANY
Series N 5.750% Senior Notes due April 15, 2023
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
$100,000,000 aggregate principal amount of its Series N 5.750% Senior Notes due
April 15, 2023 (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 Fourteenth Supplemental Indenture dated
as of April 15, 2003 (collectively, the "Indenture"); and (ii) the purchase by
the Underwriters of the Notes pursuant to the terms of an Underwriting Agreement
dated April 11, 2003, among the Company and the Underwriters for whom you are
acting as Representatives (the "Underwriting Agreement"). This opinion is being
delivered to you as Representatives 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 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 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 N
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxx Xxxxxxxxxx LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
XXXXXXXX XXXXXXX LLP
Schedule III
[Letterhead of Cravath, Swaine & Xxxxx LLP]
April 15, 2003
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the Several Underwriters
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Georgia Power Company
Series N 5.750% Senior Notes
due April 15, 2023
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 Fourteenth 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.
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]
April 15, 2003
Banc One Capital Markets, Inc.
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representatives of the Several Underwriters
GEORGIA POWER COMPANY
Series N 5.750% Senior Notes
due April 15, 2023
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $100,000,000 of its Series N 5.750%
Senior Notes due April 15, 2023 (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
Fourteenth Supplemental Indenture dated as of April 15, 2003 (collectively, the
"Indenture"); and (ii) the purchase by the Underwriters of the Notes pursuant to
the terms of an Underwriting Agreement dated April 11, 2003, among the Company
and the Underwriters for whom you are acting as Representatives (the
"Underwriting Agreement"). This opinion is being delivered to you pursuant to
Section 5(c)(3) of the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-102839, 000-000000-00 and
333-102839-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated 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 and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of Xxxxxxxx Xxxxxxx LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by 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 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 N
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
