Exhibit 1
$200,000,000
GEORGIA POWER CAPITAL TRUST IV
(a Delaware Statutory Business Trust)
6.85% Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
February 17, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Georgia Power Capital Trust IV (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(ss.) 3801 et seq.), and Georgia Power Company, a Georgia corporation (the
"Company" and, together with the Trust, the "Offerors"), confirm their 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,
for purposes of this Agreement, Xxxxxx Xxxxxxx & Co. Incorporated is acting as
representative (in such capacity, the "Representative"), with respect to the
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of 6.85% Trust Preferred Securities
(liquidation amount $25 per preferred security) of the Trust ("Preferred
Securities") set forth in Schedule I. The Preferred Securities will be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant to the
Preferred Securities Guarantee Agreement (the "Guarantee Agreement"), dated as
of February 1, 1999, between the Company and The Chase Manhattan Bank, as
trustee (the "Guarantee Trustee"). The Preferred Securities and the related
Guarantee are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase the $206,185,575
aggregate principal amount of Series D 6.85% Junior Subordinated Notes (the
"Junior Subordinated Notes") to be issued by the Company. The Preferred
Securities and the Common Securities will be issued pursuant to the Amended and
Restated Trust Agreement, dated as of February 1, 1999 (the "Trust Agreement"),
among the Company, as Depositor, Xxxx X. Xxxxxxxx and Xxxxx Boston (the
"Administrative Trustees"), Chase Manhattan Bank Delaware, a Delaware banking
corporation (the "Delaware Trustee") and The Chase Manhattan Bank, a New York
banking corporation (the "Property Trustee" and, together with the Delaware
Trustee and the Administrative Trustees, the "Trustees"), as trustees, and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Junior Subordinated Notes will be issued pursuant to an indenture,
dated as of June 1, 1997 (the "Base Indenture"), between the Company and The
Chase Manhattan Bank, as trustee (the "Debt Trustee"), and a second supplemental
indenture to the Base Indenture, dated as of February 25, 1999 (the
"Supplemental Indenture," and together with the Base Indenture and any other
amendments or supplements thereto, the "Indenture"), between the Company and the
Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and severally
represent and warrant to each Underwriter as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-43895,
000-00000-00, 000-00000-00 and 333-43895-03), in respect of the
Preferred Securities, the Guarantee and the Junior Subordinated Notes
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
you, and to you for each of the other 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 you for each of the other 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 Preferred Securities, the Guarantee and the
Junior Subordinated 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 Preferred
Securities in the form in which it is filed with the Commission,
pursuant to Rule 424(b) under the 1933 Act in accordance with Section
3(g) hereof, including any documents incorporated by reference therein
as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus").
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission complied in all
material respects with the applicable provisions of the 1934 Act 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 neither the Trust nor the Company makes any
warranty or representation to any Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter through you expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final Supplemented
Prospectus under the caption "Book-Entry-Only Issuance -- The
Depository Trust Company".
(c) The Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the applicable provisions of the 1933 Act
and the rules and regulations of the Commission thereunder and did 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.
(d) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus 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 Trust
Indenture Act of 1939, as amended (the "1939 Act) and the General Rules
and Regulations of the Commission thereunder and do not and will not,
(i) as of the applicable effective date as to the Registration
Statement and any amendment thereto and (ii) as of the applicable
filing date as to the Final Supplemented Prospectus and any Prospectus
as further amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that neither the Company
nor the Trust makes any warranties or representations with respect to
(A) that part of the Registration Statement which shall constitute the
Statements of Eligibility (Form T-1) (collectively, the "Form T-1")
under the 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
Trust or the Company by an Underwriter expressly for use therein or (C)
any information set forth in the Final Supplemented Prospectus under
the caption "Book-Entry Only Issuance -- The Depository Trust Company".
(e) 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.
(f) 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.
(g) 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 not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust.
(h) The Company has been duly incorporated and is validly existing and in
good standing as a corporation 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, the Trust Agreement, the Indenture and the Guarantee
Agreement and to purchase, own, and hold the Common Securities issued
by the Trust and to issue and deliver the Junior Subordinated Notes and
the Guarantee.
(i) The Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Registration Statement and Final Supplemented Prospectus and to
enter into and perform its obligations under this Agreement and the
Trust Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Supplemented Prospectus; the Trust is and will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Final
Supplemented Prospectus, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the Trust and will conform in all material
respects to all statements relating thereto contained in the Final
Supplemented Prospectus; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and, on the Closing Date
(as defined herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(k) This Agreement has been duly authorized, executed and delivered by each
of the Offerors.
(l) The Trust Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company
and the Administrative Trustees, and assuming due authorization,
execution and delivery of the Trust Agreement by the Delaware Trustee
and the Property Trustee, the Trust Agreement will, on the Closing
Date, be a valid and binding obligation of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees 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") and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus; and, on the Closing Date, the Trust Agreement will have
been duly qualified under the 1939 Act.
(m) The Guarantee Agreement has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, the Guarantee Agreement
will, on the Closing Date, constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms except to the extent that enforcement thereof may be limited by
the Enforceability Exceptions, and each of the Guarantee and the
Guarantee Agreement will conform in all material respects to all
statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Guarantee Agreement will have
been duly qualified under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
Trust, will be entitled to the benefits of the Trust Agreement and will
conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; the issuance of the
Preferred Securities is not subject to preemptive or other similar
rights; (subject to the terms of the Trust Agreement) holders of
Preferred Securities will be entitled to the same limitation of
personal liability under Delaware law as extended to stockholders of
private corporations for profit.
(o) 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 Debt 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 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.
(p) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated 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 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.
(q) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(r) The Junior Subordinated Notes are subordinated and junior in right of
payment to all "Senior Indebtedness" (as defined in the Indenture) of
the Company.
(s) Each of the Administrative Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(t) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is and, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(u) The execution, delivery and performance by the Offerors of this
Agreement, the Trust Agreement, the Preferred Securities, the Common
Securities, the Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee and the consummation by the Offerors of the
transactions contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and thereunder
shall have been duly authorized by all necessary action (corporate or
otherwise) on the part of the Offerors and do not and will not result
in any violation of the charter or bylaws of the Company, or the Trust
Agreement or related Certificate of Trust 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 Trust or the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Trust or the Company is a party or by which either of them
may be bound or to which any of their properties may be subject (except
for conflicts, breaches or defaults which would not, individually or in
the aggregate, be materially adverse to the Trust or 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 Trust or the
Company, or any of their respective properties.
(v) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions contemplated in this Agreement, except (A) such as may
be required under the 1933 Act or the rules and regulations thereunder;
(B) such as may be required under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"); (C) the qualification of the
Trust Agreement, the Guarantee Agreement and the Indenture under the
1939 Act; (D) the approval of the Georgia Public Service Commission
(the "Georgia Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at the price per security
set forth in Schedule II hereto, the number of Preferred Securities set forth in
Schedule I opposite the name of such Underwriter, plus any additional number of
Preferred Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date (as defined below) to the Representative, for
the accounts of the several Underwriters, a commission per Preferred Security as
set forth on Schedule II for the Preferred Securities to be delivered by the
Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities 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 February 25, 1999 (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, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Trust by wire transfer in federal funds at the Closing Date, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. Certificates
for the Preferred Securities shall be in such denominations and registered in
such names as the Representative may request in writing at least two business
days before the Closing Date. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Preferred Securities which
it has agreed to purchase. Xxxxxx Xxxxxxx & Co. Incorporated, individually and
not as Representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Preferred Securities to be purchased
by any Underwriter whose check has not been received by the Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representative not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and severally
covenants with each Underwriter as follows:
(a) The Offerors, 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 Offerors will deliver to the
Underwriters sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to each
Underwriter 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 Offerors will furnish the Underwriters with copies of each amendment and
supplement to the Final Supplemented Prospectus relating to the offering of the
Preferred Securities 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 Preferred Securities by an Underwriter or dealer, any event relating
to or affecting the Company, or of which the Company shall be advised in writing
by the Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the circumstances
when it is delivered, or if for any other reason it shall be necessary during
such period to amend or supplement the Final Supplemented Prospectus or to file
under the 1934 Act any document incorporated by reference in the Preliminary
Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act,
the Company forthwith will (i) notify the Underwriters to suspend solicitation
of purchases of the Preferred Securities 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 Preferred Securities 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 Offerors will endeavor, in cooperation with the Underwriters, to qualify
the Preferred Securities and, to the extent required or advisable, the Guarantee
and the Junior Subordinated 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 neither of the
Offerors shall be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a consent to service of
process or to file annual reports or to comply with any other requirements in
connection with such qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available to its security holders as soon as
practicable but not later than 45 days after the close of the period covered
thereby, an earnings statement of the Company (in form complying with the
provisions of Rule 158 of the rules and regulations under the 0000 Xxx) covering
a twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158) of
the Registration Statement.
(e) The Offerors will use best efforts to effect the listing of the Preferred
Securities on the New York Stock Exchange; if the Preferred Securities are
exchanged for Junior Subordinated Notes, the Company will use its best efforts
to effect the listing of the Junior Subordinated Notes on any exchange on which
the Preferred Securities are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the
Trust nor the Company will, 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 Preferred Securities, any security convertible into
or exchangeable into or exercisable for Preferred Securities or the Junior
Subordinated Notes or any debt securities substantially similar to the Junior
Subordinated Notes or equity securities substantially similar to the Preferred
Securities (except for the Junior Subordinated Notes and the Preferred
Securities issued pursuant to this Agreement).
(g) 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 Representative of
such filing and to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of each Offeror's 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 Preferred
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the qualification of the
Preferred Securities and, to the extent required or advisable, the Guarantee and
the Junior Subordinated 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 Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Delaware Trustee, the
Property Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Trust Agreement and
the related Certificate of Trust, (x) the fees and disbursements of Delaware
counsel to the Trust, (xi) any fees payable in connection with the rating of the
Preferred Securities and Junior Subordinated Notes, (xii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Notes on the New York Stock Exchange, (xiii)
the cost and charges of any transfer agent or registrar and (xiv) the cost of
qualifying the Preferred Securities 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 Preferred Securities, 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 Preferred Securities 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) 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
III.
(2) The opinion, dated the Closing Date, of Xxxxxxxx, Xxxxxx & Finger,
P.A., Delaware counsel to the Trust, substantially in the form attached
hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of Xxxxxxxx, Xxxxxx & Finger,
P.A., Delaware counsel to Chase Manhattan Bank Delaware, as Delaware
Trustee under the Trust Agreement, substantially in the form attached
hereto as Schedule V.
(4) The opinion, dated the Closing Date, of Cravath, Swaine & Xxxxx,
counsel to the Property Trustee, the Guarantee Trustee and the Debt
Trustee, substantially in the form attached hereto as Schedule VI.
(5) The favorable opinion, dated as of the Closing Date, of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, substantially in the form
attached hereto as Schedule VII.
(6) 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 Trust or 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
a certificate of the Administrative Trustees of the Trust, 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 Trust
and the Company have complied with all agreements and satisfied all
conditions on their respective parts 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.
(7) On this Closing Date, the Representative shall have received from
Xxxxxx Xxxxxxxx LLP a letter dated the Closing Date to the effect that:
(A) they are independent public accountants with respect to the Company
within the meaning of the 1933 Act and the rules and regulations under
the 1933 Act; (B) in their opinion, the financial statements audited by
them and incorporated by reference in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of
the 1934 Act and the rules and regulations under the 1934 Act, and (C)
on the basis of certain limited procedures performed through a
specified date not more than five business days prior to the date of
such letter, namely (i) reading the minute books of the Company; (ii)
performing the procedures specified by the American Institute of
Certified Public Accountants ("AICPA") for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, "Interim Financial Information", on the unaudited financial
statements, if any, of the Company incorporated in the Prospectus and
of the latest available unaudited financial statements of the Company,
if any, for any calendar quarter subsequent to the date of those
incorporated in the Prospectus; and (iii) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being understood that
the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Xxxxxx Xxxxxxxx LLP
make no representations as to the sufficiency of such procedures for
the Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any,
incorporated in the Prospectus, for them to be in conformity with
generally accepted accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred 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 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 Registration
Statement; (4) as of a specified date not more than five business days
prior to the date of delivery of such letter, there has been any change
in the capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown in the latest audited
balance sheet incorporated in the Prospectus, except in each case for
changes or decreases which (i) the Prospectus discloses have occurred
or may occur, (ii) are occasioned by the declaration of dividends,
(iii) are occasioned by draw-downs 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, or (v) are disclosed in such
letter; and (5) the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred 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.
(8) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities 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
Offerors, in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters.
(9) On the Closing Date, the Preferred Securities shall have been approved
for listing on the New York Stock Exchange upon notice of issuance.
(10) A Special Event (as defined in the Final Supplemented Prospectus) shall
not have occurred and be continuing.
(11) 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 any
Underwriter or Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of the
Preferred Securities.
(12) The Company and the Trust shall have performed their respective
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 Offerors 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 OFFERORS. The obligations of the
Offerors shall be subject to the conditions set forth in the first sentence of
Section 5(a) and in Section 5(b). In case such conditions shall not have been
fulfilled, this Agreement may be terminated by the Company by mailing or
delivering written notice thereof to the Underwriters. Any such termination
shall be without liability of any party to any other party except as otherwise
provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree 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 the Underwriters 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 Offerors shall furnish to the Underwriters any amendments
or any supplements thereto, or shall make any filings pursuant to Section 13 or
14 of the 1934 Act which are incorporated therein by reference, in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the Final
Supplemented Prospectus as so amended or supplemented, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus or the Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative 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 Offerors 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 Preferred Securities 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 Offerors on account of
its agreement contained in this Section 7, to notify the Offerors in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Offerors of any such action shall not release the Offerors 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 the Underwriters or any such person
controlling such Underwriters and such Underwriter shall notify the Offerors of
the commencement thereof as above provided, the Offerors shall be entitled to
participate in (and, to the extent that they shall wish, including the selection
of counsel, to direct) the defense thereof, at their own expense. In case the
Offerors elect 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 controlling person unless the employment of such counsel has
been authorized in writing by the Offerors in connection with defending such
action. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
effected without its prior written consent.
(b) The Company agrees to indemnify the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under Section 7(a)
hereunder.
(c) 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, the Trust and each other Underwriter and each person, if
any, who controls the Offerors or any such other Underwriter 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 Offerors 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 Offerors by, or through the Representative 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 or Trustees of the Offerors 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 Offerors and shall survive delivery of the
Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the Offerors,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by to New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, (iv) there shall have occurred any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
the United States Congress or any other substantial national or international
calamity or emergency affecting the United States, in any such case provided for
in clauses (i) through (iv) with the result that, in the reasonable judgement of
the Representative, the marketability of the Preferred Securities shall have
been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Offerors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable to perform their
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, 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 Preferred Securities
and, upon such reimbursement, the Offerors shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of 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 number of Defaulted Securities does not exceed 10% of the
Preferred Securities, each of 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 number of Defaulted Securities exceeds 10% of the Preferred
Securities, 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 Offerors 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 Representative at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx; notices to the Offerors shall be directed to the
Company at 000 Xxxxx XxXxxx Xxxxxxxxx, X.X., Xxxxxxx XX 00000-0000, Attention:
Corporate Secretary, with a copy to Southern Company Services, Inc., 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Trust, 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 Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees 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 Trust and
the Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter 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 Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By:______________________________
Title:___________________________
GEORGIA POWER CAPITAL TRUST IV
By: Georgia Power Company, as Depositor
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX XXXXXXX & CO. INCORPORATED
By:_________________________________________
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Xxxxxx Xxxxxxx & Co. Incorporated 958,000
X.X. Xxxxxxx & Sons, Inc. 952,000
Xxxxxxx, Xxxxx & Co. 952,000
Xxxxxx Brothers Inc. 952,000
PaineWebber Incorporated 952,000
Prudential Securities Incorporated 952,000
Xxxxxxx Xxxxx Xxxxxx Inc. 952,000
ABN Amro Incorporated 70,000
Chase Securities Inc. 70,000
CIBC Xxxxxxxxxxx Corp. 70,000
Credit Suisse First Boston Corporation 70,000
First Chicago Capital Markets, Inc. 70,000
First Union Capital Markets Corp. 70,000
X.X. Xxxxxx Securities Inc. 70,000
The Xxxxxxxx-Xxxxxxxx Company, LLC 70,000
XX Xxxxx Securities Corporation 70,000
Xxxxxx X. Xxxxx & Co. Incorporated 35,000
Xxxxxxxx & Partners, L.P. 35,000
X.X. Xxxxxxxx & Co. 35,000
Xxxx Xxxxxxxx Xxxxxxx 35,000
Xxxxx Securities, Inc. 35,000
Fidelity Capital Markets 35,000
A division of National Financial Service Corporation
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 35,000
Interstate/Xxxxxxx Lane Corporation 35,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 35,000
Xxxxxx Xxxxxx & Company, Inc. 35,000
Olde Discount Corporation 35,000
Pershing/Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx 35,000
Xxxxx Xxxxxxx Inc. 35,000
Xxxxxxx Xxxxx & Associates, Inc. 35,000
Xxxxx Capital Markets 35,000
A division of First Chicago Capital Markets, Inc.
Xxxxxxx Xxxxxx & Co., Inc. 35,000
Xxxxxx Xxxxxxx & Co., Inc. 35,000
Southwest Securities, Inc. 35,000
Xxxxxxxx Capital Partners, L.P. 35,000
The Xxxxxxxx Capital Group, L.P. 35,000
TOTAL 8,000,000
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.7875 for Preferred Securities
sold to certain institutions; $.50 for Preferred Securities sold to other
purchasers
Schedule III
[Letterhead of XXXXXXXX XXXXXXX LLP]
February __, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
As Representatives of the Several Underwriters
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
GEORGIA POWER CAPITAL TRUST IV
____% TRUST PREFERRED SECURITIES
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) its formation of Georgia Power Capital Trust
IV, a Delaware statutory business trust (the "Trust"), pursuant to the Amended
and Restated Trust Agreement dated __________, 199_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the Trust's issuance and
sale of ____% Trust Preferred Securities evidencing approximately 97% undivided
beneficial interests in assets of the Trust (the "Preferred Securities"); (iii)
the Trust's issuance and sale of Common Securities evidencing approximately 3%
undivided beneficial interests in the assets of the Trust; (iv) the Company's
issuance and sale to the Trust of $___________ aggregate principal amount of its
Series D ___% Junior Subordinated Notes due _________ __, 20__(the "Notes")
pursuant to a Subordinated Note Indenture dated as of __________, 199_, by and
between the Company and The Chase Manhattan Bank, as trustee, as supplemented by
the Second Supplemental Indenture dated as of __________ __, 199_ (collectively,
the "Indenture"); and (v) its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Guarantee Agreement dated as of __________,
199_ (the "Guarantee Agreement") between the Company and ___________________, as
trustee. The Preferred Securities are being sold to you today pursuant to the
terms of an Underwriting Agreement dated __________, 199_ (the "Underwriting
Agreement"), among the Company, the Trust and the underwriters named in Schedule
I thereto (the "Underwriters") for whom you are acting as Representative. This
opinion is being delivered to you as Representative 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 (Nos. ______________________________)
filed by the Company and the Trust under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act; and the prospectus of the
Company and the Trust dated _______ ___, 199_ as supplemented by the prospectus
supplement dated __________, 199_ (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, 199_, the Quarterly Reports
on Form 10-Q of the Company for the quarters ended and the Current Reports on
Form 8-K of the Company dated (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
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, the Indenture, the Guarantee Agreement
and the Underwriting Agreement are herein referred to collectively as the
"Agreements".
Based upon 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 and as to matters of Delaware law upon the opinion dated the date
hereof rendered to you by Xxxxxxxx, Xxxxxx & Finger P.A., 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 delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities; the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred Securities 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 delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 Debt 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 Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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 Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Guarantee Agreement conforms as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the
Trust Agreement has been duly qualified under the Trust Indenture Act of 1939,
as amended.
8. Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Preferred Securities, will be an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
9. The Trust Agreement has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and binding obligation 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 Trust Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity. (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
10. The statements as to matters of law and legal conclusions
contained in the Final Supplemented Prospectus under the caption "Certain
Federal Income Tax Considerations" are correct in all material respects.
11. To the best of our knowledge, all of the issued and
outstanding Common Securities of the Trust are directly owned by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
12. The execution, delivery and performance by the Trust of
the Underwriting Agreement and the Trust Agreement; the issuance by the Trust of
the Preferred Securities and the Common Securities; the consummation by the
Trust of the transactions contemplated thereby; and the compliance by the Trust
with its obligations thereunder do not and will not result in any violation of
the Trust Agreement or related Certificate of Trust, 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 Trust under (A) any
contract, indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to us to which the Trust is a party or by which it
may be bound or to which any of its properties may be subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or otherwise) of the
Trust), (B) any existing applicable law, rule or regulation applicable to the
Trust (other than the securities or "blue sky" laws of any jurisdiction, as to
which we express no opinion) or (C) any judgment, order or decree known to us 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 Trust or any of its properties; and to the best of our
knowledge the Trust is not a party to or otherwise bound by any agreement other
than those which, or the forms of which, are exhibits (or included in exhibits)
to the Registration Statement.
13. The Common Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when issued
and delivered by the Trust to the Company against payment therefor as described
in the Final Supplemented Prospectus, will be validly issued, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust; and the
issuance of the Common Securities is not subject to preemptive or other similar
rights.
14. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; the holders of the Preferred
Securities will (subject to the terms of the Trust Agreement) be entitled to the
same limitation of personal liability under Delaware law as is extended to
stockholders of private corporations for profit organized under the general
corporation law of the State of Delaware; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights; and the
Preferred Securities conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
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,
5, 6, 10 and 14 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 other counsel for the Company, with representatives of Xxxxxx
Xxxxxxxx LLP and with your counsel. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of , complied as to form in all material
respects with the 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 its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents.
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 States of Delaware and 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 their 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 IV
[Letterhead of XXXXXXXX, XXXXXX & FINGER, P.A.]
February __, 1999
Xxxxxx Xxxxxxx & Co. Incorporated
X.X. Xxxxxxx & Sons, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
As Representatives of the Several Underwriters
c/o Morgan Xxxxxxx & Co.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Georgia Power Capital Trust IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
II, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. This opinion is being furnished to you pursuant to Section 5(c)(2)
of the Underwriting Agreement, dated February _, 1999 (the "Underwriting
Agreement"), among the Company, the Trust, Xxxxxx Xxxxxxx & Co. Incorporated and
the other Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated _______ __, 199_(the
"Original Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on ______ __, 199_;
(b) The Trust Agreement of the Trust, dated as of ________ __, 199_,
among the Company and the trustees of the Trust named therein;
(c) The Amended and Restated Trust Agreement, dated as of _________,
199_ (including Exhibits C and E), among the Company, the trustees of the Trust
named therein and the holders, from time to time, of the undivided beneficial
interests in the assets of the Trust (the "Trust Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated _________ __, 199_ (the "Prospectus"), as
supplemented by the Prospectus Supplement dated ____________, 199_ (the
"Prospectus Supplement"), relating to the __% Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust, dated ___________ __,
199_, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including New York laws and federal laws, and rules and regulations relating
thereto. Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C. ss. 3801, et seq. (the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus and the Prospectus Supplement, (ii)
execute and deliver, and to perform its obligations under, the Underwriting
Agreement, (iii) issue and perform its obligations under the Trust Securities,
and (iv) perform its obligations under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided beneficial interests in
the assets of the Trust. Subject to the qualifications set forth in paragraph 6
below, the Preferred Securities are fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. Under the Business Trust Act
and the Trust Agreement, the Trust Securities are not subject to any preemptive
or other similar rights.
4. Under the Business Trust Act and the Trust Agreement, the
Underwriting Agreement has been duly authorized by all necessary trust action on
the part of the Trust.
5. No authorization, approval, consent or order of any
Delaware court or Delaware governmental authority or Delaware agency is required
to be obtained by the Trust solely as a result of the issuance and sale of the
Preferred Securities.
6. The Persons to whom Preferred Securities are to be issued
by the Trust (collectively, the "Preferred Security Holders"), as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the Trust Agreement, to
(i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
7. The Trust Agreement constitutes a valid and binding
obligation of the Company, and is enforceable against the Company, in accordance
with its terms.
8. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Trust Agreement, or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the
caption "The Trusts" and the statements in the Prospectus Supplement under the
caption "Georgia Power Capital Trust IV" and, insofar as they contain statements
of Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
transfer or conveyance and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution. In addition, in connection with the opinion
expressed in paragraph 7 above, to the extent that Section [10.05] of the Trust
Agreement provides that the Trust Agreement is governed by New York law, we
express no opinion concerning Section [10.05] of the Trust Agreement or the
effect of Section [10.05] of the Trust Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP relying as to matters
of Delaware law upon this opinion in connection with opinions to be rendered by
them pursuant to the Underwriting Agreement. Except as stated above, without our
prior written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other Person for any purpose.
Very truly yours,
XXXXXXXX, XXXXXX & FINGER
Schedule V
[Letterhead of Xxxxxxxx, Xxxxxx & Finger, P.A.]
February __, 1999
Xxxxxx Xxxxxxx & Co. Incorporated, as Georgia Power Company
Representative Georgia Power Capital Trust IV
0000 Xxxxxxxx x/x Xxxxxxx Power Company
Xxx Xxxx, Xxx Xxxx 00000 241 Xxxxx XxXxxx Xxxxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Re: Georgia Power Capital Trust IV
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank Delaware, a
Delaware banking corporation ("CMBD"), in connection with the formation of
Georgia Power Capital Trust IV, a business trust existing under the laws of the
State of Delaware (the "Trust") pursuant to the Trust Agreement, dated
____________, by and between CMBD, not in its individual capacity but solely as
trustee (the "Trustee"), and Georgia Power Company (the "Company"), as amended
and restated pursuant to an Amended and Restated Trust Agreement, dated as of
__________ __, 199_, among the Company, the Trustee, the other trustees named
therein and the holders from time to time of the undivided beneficial interests
in the assets of the Trust (the "Trust Agreement"). This opinion is being
delivered to you pursuant to Section 5(c)(3) of the Underwriting Agreement,
dated ___________ __, 199_ (the "Underwriting Agreement"), among Xxxxxx Xxxxxxx
& Co. Incorporated, the several Underwriters named in Schedule I thereto,
Georgia Power Company and the Trust, pursuant to which the $___,000,000 ___%
Preferred Securities of the Trust will be sold. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the corporations or entities
referred to herein as we have deemed necessary or appropriate for the purposes
of the opinions expressed herein. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon the representations and
warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. CMBD is duly incorporated, validly existing in good
standing as a banking corporation under the laws of the State of Delaware and
has the power and authority to execute, deliver and perform its obligations
under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by CMBD and constitutes a legal, valid and binding obligation of CMBD,
enforceable against CMBD, in accordance with its terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by CMBD, does not conflict with or constitute a breach
of or default under the charter or by-laws of CMBD.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by CMBD of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and
we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of CMBD (except that we express no opinion with respect
to (i) state securities or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, and the Investment Company Act of 1940, as amended), and we have not
considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent transfer or conveyance and similar laws
relating to and affecting the rights and remedies of creditors generally, (ii)
principles of equity including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than CMBD, of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
CMBD) on documents examined by us are genuine, that all documents submitted to
us as originals are authentic, and that all documents submitted to us as copies
or specimens conform with the originals, which facts we have not independently
verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
XXXXXXXX, XXXXXX & FINGER
Schedule VI
[Letterhead of Cravath, Swaine & Xxxxx]
__________ __, 199_
Xxxxxx Xxxxxxx & Co. Incorporated,
as Representative
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Georgia Power Company
Georgia Power Capital Trust IV
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Subordinated Note Indenture, dated as of
________ ______, 199_ as heretofore supplemented (the "Original Indenture"),
between Georgia Power Company (the "Company") and the Bank, as Trustee, (b) the
Second Supplemental Indenture, dated as of ___________ (together with the
Original Indenture, herein called the "Indenture"), between the Company and the
Bank, as Trustee, (c) the Guarantee Agreement dated as of __________ ______,
199_ (the "Guarantee Agreement"), between the Company, as Guarantor and the
Bank, as Trustee, and (d) the Amended and Restated Trust Agreement, dated as of
_________ ______, 199_ (the "Trust Agreement") among the Company, the Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and
_________________ and _______________, as Administrative Trustees.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, the Guarantee
Agreement, the Trust Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the
Indenture, the Trust Agreement and the Guarantee Agreement, has duly
executed and delivered the Indenture, the Trust Agreement and the
Guarantee Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization,
execution and delivery thereof by the other parties thereto, each of
the Indenture, the Trust Agreement and the Guarantee Agreement
constitutes a legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its terms (subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iii) the execution, delivery and performance by the
Bank of the Indenture, the Trust Agreement and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or bylaws of
the Bank.
(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, the Trust Agreement or the
Guarantee Agreement or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made.
We are admitted to practice 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 used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & XXXXX
Schedule VII
[Letterhead of XXXXX XXXXXXXXXX LLP]
February _, 1999
Xxxxxx Xxxxxxx & Co. Incorporated,
as Representative
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
GEORGIA POWER CAPITAL TRUST IV
____% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Georgia Power Company
(the "Company") of Georgia Power Capital Trust IV (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and restated trust agreement
dated __________, 199_ among the Company and the trustees named therein (the
"Trust Agreement"); (ii) the Trust's issuance and sale of Preferred Securities
evidencing approximately a 97% undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of $___________ of its Series D ___%
Junior Subordinated Notes (the "Notes") pursuant to a Subordinated Note
Indenture dated as of __________, 199_, by and between the Company and
____________, as trustee, as supplemented by the Second Supplemental Indenture
dated as of __________ __, 199_ (collectively, the "Indenture"); and (v) the
Company's issuance of a guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Guarantee Agreement dated as of __________, 199_ (the "Guarantee
Agreement") between the Company and The Chase Manhattan Bank, as trustee, we
have acted as counsel to you and the other underwriters named in the Schedule I
(the "Underwriters") of the Underwriting Agreement dated __________ __, 199_,
among the Company, the Trust 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)(5) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. ________________________)
pertaining to the Preferred Securities (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated , as supplemented by a prospectus supplement dated
, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended ____________ __,
199_, the Quarterly Reports on Form 10-Q of the Company for the quarters ended
and the Current Reports on Form 8-K of the Company, dated (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
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), 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 Trust Agreement, Indenture, Guarantee Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the State of Georgia upon the opinion of Xxxxxxxx Xxxxxxx LLP dated the
date hereof and addressed to you, and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Delaware upon the opinion
of Xxxxxxxx, Xxxxxx & Finger, dated the date hereof and addressed to you and a
form of which is attached as Schedule IV to the Underwriting Agreement, 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 delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities; the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred Securities 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 delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 Debt 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 Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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);
the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally or general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); and the Guarantee Agreement conforms as to legal matters
in all material respects to the description thereof in the Final Supplemented
Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the
Trust Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
8. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
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,
5, 6 and 8 above. In the course of the preparation by the Company of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, we participated in conferences with certain officers and employees of
the Company, with representatives of Xxxxxx Xxxxxxxx LLP and with counsel to the
Company. Based upon our examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our investigations made
in connection with the preparation of the Registration Statement and the Final
Supplemented Prospectus and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Final Supplemented Prospectus, as of ___________,
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 its
effective date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents.
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 laws of the States of Delaware and 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
opinion pursuant to Section 5(c) of the Underwriting Agreement, insofar as such
opinions relate to matters of New York law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
