Exhibit 1.1
$125,000,000 Series Y 5.80% Senior Notes
due April 15, 2035
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
April 12, 2005
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative 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 representative (in such capacity
you shall hereinafter be referred to as the "Representative"), 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 Y
5.80% Senior Notes due April 15, 2035 (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 Representative deems
advisable after this Agreement has been executed and delivered. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank, N.A. (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-fifth supplemental indenture, dated as of April 19, 2005, 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.
333-121202, 000-000000-00, 000-000000-00, 000-000000-00 and
333-121202-04), 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, 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,
as amended, 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, as amended, 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 amended, 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, as amended, 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 through the Representative
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 Y 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 (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 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 through the Representative
expressly for use therein; or (C) any information set forth in
the Final Supplemented Prospectus under the caption
"Description of the Series Y 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 (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) 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,
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 98.633% 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 April 19, 2005
(unless postponed in accordance with the provisions of Section
10) or such other time, place or date as shall be agreed upon
by the Representative 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 Representative. It is
understood that each Underwriter has authorized the
Representative, 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 Representative, 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 Representative 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 Representative 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 Representative 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 Representative 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
Representative 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, the Company will file the Final Supplemented
Prospectus with the Commission and will advise the
Representative of such filing and will confirm such advice in
writing.
(f) During a period of 15 days from the date of this Agreement,
the Company will not, without the Representative's prior
written consent, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any
Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except
for the Senior Notes issued pursuant to this Agreement). The
Representative agrees that commercial paper or other debt
securities with scheduled maturities of less than one year are
not subject to this Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements
of the Company's counsel and accountants, (iv) the qualification of the
Senior Notes under securities laws in accordance with the provisions of
Section 3(c) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the 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.
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 Representative, 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 Representative 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.
(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 Representative 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 Representative 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 Representative and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters.
(g) 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 Representative, shall materially impair the marketability of the
Senior Notes.
(h) 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 Representative 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
Representative. 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 Representative 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 Representative 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 Representative 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
Representative, the marketability of the Senior Notes shall have been materially
impaired.
(b) If this Agreement shall be terminated by the Representative 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 Representative 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 Representative 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 Representative 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 Representative at Barclays Capital Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Transactions Management; 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
BARCLAYS CAPITAL INC.
By: /s/Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title: Managing Director
As Representative of the other Underwriters
named in Schedule I hereto
Schedule I
NAME OF UNDERWRITER Principal Amount of Series Y
Senior Notes
Barclays Capital Inc. $89,214,285
ABN AMRO Incorporated $12,500,000
Xxxxxxxx & Company, Inc. $12,500,000
SunTrust Capital Markets, Inc. $10,785,715
TOTAL $125,00,000
Schedule II
[Letterhead of XXXXXXXX XXXXXXX LLP]
April [o], 2005
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
GEORGIA POWER COMPANY
Series Y ______% Senior Notes due April 15, 2035
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 Y ______% Senior Notes due
April 15, 2035 (the "Notes") pursuant to a Senior Note Indenture dated as of
January 1, 1998, by and between the Company and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), as
heretofore supplemented and as supplemented by the Twenty-Fifth Supplemental
Indenture dated as of April 19, 2005 (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 April ___, 2005 (the "Underwriting
Agreement"), among the Company and the underwriters named in Schedule I thereof
(the "Underwriters") for whom you are acting as Representative. 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, as amended (File Nos. 333-121202,
000-000000-00, 000-000000-00, 000-000000-00 and 333-121202-04), 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 January 12, 2005 as supplemented by the prospectus supplement
dated April ___, 2005 (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, 2004 (the "Form 10-K") and the Current
Reports on Form 8-K of the Company dated January 10, 2005, January 13, 2005,
February 16, 2005, February 21, 2005 and April ___, 2005 (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 ___, 2005,
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 Y
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)(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]
April ___, 2005
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Georgia Power Company
000 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Georgia Power Company
Series Y ______% Senior Notes
due April 15, 2035
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank, N.A.
(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-Fifth Supplemental
Indenture dated as of April 19, 2005 (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) based solely on a certificate from the Comptroller of the Currency,
the Bank is a national banking association formed under the laws of the United
States and is authorized thereunder to transact the business of banking;
(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 articles of
association 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 ___, 2005
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Several Underwriters
Georgia Power Company
Series Y ____% Senior Notes
due April 15, 2035
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 Y ______% Senior Notes due April 15, 2035 (the "Notes") pursuant
to a Senior Note Indenture dated as of January 1, 1998, by and between the
Company and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Twenty-Fifth Supplemental Indenture dated as of April ___,
2005 (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 April __, 2005 (the "Underwriting Agreement"), among the Company
and the underwriters named in Schedule I thereof (the "Underwriters") for whom
you are acting as Representative. 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, as amended (File Nos. 333-121202,
000-000000-00, 000-000000-00, 000-000000-00 and 333-121202-04), 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 January 12, 2005, as supplemented by a final prospectus supplement
relating to the Notes dated April __, 2005 (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") and the Current Reports on Form 8-K of the Company dated
January 10, 2005, January 13, 2005, February 16, 2005, February 21, 2005 and
April __, 2005 (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 April __, 2005, 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 Y
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 its
opinions pursuant to Section 5(c)(1) 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
