Exhibit 1
Preferred Securities
GEORGIA POWER CAPITAL TRUST II
(a Delaware Statutory Business Trust)
7.60% Trust Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
Janaury 9, 1997
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Georgia Power Capital Trust II (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
you are acting as representative (in such capacity, you shall hereinafter be
referred to as 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 7.60% 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 January 1, 1997, 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 $180,412,375
aggregate principal amount of Series B 7.60% 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 January 1, 1997 (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 August 1, 1996 (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 January 1, 1997 (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. 333-06037, 000-00000-00, 333-06037- 02 and 333-06037-03), 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
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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; the Prospectus as supplemented
by a preliminary prospectus supplement dated January 7, 1997 relating
to the Preferred Securities, including any documents incorporated by
reference therein as of such date, being hereinafter called the
"Preliminary Supplemented Prospectus"; 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").
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(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 Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus; or (B) any information set forth in the
Preliminary Supplemented Prospectus or 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, to the
extent not used to confirm sales of the Securities, the Preliminary
Supplemented Prospectus, comply, 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
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supplements are filed with the Commission, as the case may be, will
comply, in all material respects with the applicable provisions of the
1933 Act, the 1934 Act, the 1939 Act 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, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus, and (iii) 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 Trust Indenture Act of 1939, as amended (the "1939 Act"), (B)
statements or omissions made in the Registration Statement, the
Preliminary Supplemented Prospectus, 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
Preliminary Supplemented Prospectus or 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
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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.
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(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
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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.
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(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,
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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, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New
York time, on January 16, 1997 (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
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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. The Representative, 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, the Preliminary
Supplemented 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, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters
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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 Preliminary Supplemented
Prospectus and 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 Preliminary Supplemented Prospectus or Final
Supplemented Prospectus, as the case may be, in order to make the
Preliminary Supplemented Prospectus or 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 Preliminary Supplemented Prospectus or 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 Preliminary Supplemented Prospectus or Final
Supplemented Prospectus which will supplement or amend the Preliminary
Supplemented Prospectus or 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
Preliminary Supplemented Prospectus or 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,
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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.
(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
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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
Preliminary Supplemented 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
14
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.
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 Preliminary Supplemented Prospectus or Final Supplemented
Prospectus, or any supplement thereto, is required pursuant to Rule
424, the Preliminary Supplemented Prospectus or 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.
15
(2) The opinion, dated the Closing Date, of Xxxxxxxx,
Xxxxxx & Finger, 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, 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, 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
16
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, as of a date
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
17
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 period 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, 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, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus filed
18
subsequent to the date of this Agreement (including any filing made by
the Company pursuant to Section 13 or 14 of the Exchange Act) shall be
unsatisfactory in form to Xxxxx Xxxxxxxxxx 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
market-ability 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, the
Preliminary Supplemented Prospectus, or the Final Supplemented Prospectus or, if
the Offerors shall furnish to the
19
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, the Preliminary Supplemented 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, the Preliminary
Supplemented 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, the Preliminary Supplemented 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, the Preliminary
Supplemented 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, the Preliminary Supplemented 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 Offerers 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
20
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, the Preliminary Supplemented 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.
21
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 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
22
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 3 World Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Managing Director, Utilities
Investment Banking; notices to the Offerors shall be directed to the Company at
000 Xxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, 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
23
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.
24
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: XXXXX BOSTON
Title: ASSISTANT SECRETARY
GEORGIA POWER CAPITAL TRUST II
By: Georgia Power Company, as
Depositor
By: XXXXX BOSTON
Title: ASSISTANT SECRETARY
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
By: XXXXX X. XXXXXXX
AUTHORIZED SIGNATORY
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Xxxxxx Brothers Inc. 679,500
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 679,500
Xxxxxxx, Sachs & Co. 678,500
Xxxx Xxxxxx Xxxxxxxx Inc. 678,500
X.X. Xxxxxxx & Sons, Inc. 678,500
Prudential Securities Incorporated 678,500
The Xxxxxxxx-Xxxxxxxx Company, Inc. 678,500
Xxxxx Xxxxxx Inc. 678,500
Bear, Xxxxxxx & Co. Inc. 50,000
X.X. Xxxxxxxx & Co. 50,000
Alex. Xxxxx & Sons Incorporated 50,000
Xxxxx & Company 50,000
Xxxx Xxxxxxxx Incorporated 50,000
Xxxxxx, Read & Co. Inc. 50,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 50,000
Interstate/Xxxxxxx Lane Corporation 50,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 50,000
X.X. Xxxxxx Securities Inc. 50,000
Xxxxxx Xxxxxx & Company, Inc. 50,000
The Ohio Company 50,000
Xxxxxxxxxxx & Co., Inc. 50,000
Xxxxx Xxxxxxx Inc. 50,000
Xxxxxxx Xxxxx & Associates, Inc. 50,000
Regions Investment Company, Inc. 50,000
Sterne, Agee & Xxxxx, Inc. 50,000
Xxxxxx Xxxxxxx Incorporated 50,000
Wheat, First Securities, Inc. 50,000
Advest, Inc. 20,000
Xxxxxx X. Xxxxx & Co. Incorporated 20,000
Craigie Incorporated 20,000
Xxxxxxx, Xxxxxx & Co. 20,000
Xxxxxxxxx & Co. of Virginia, Inc. 20,000
EVEREN Securities, Inc. 20,000
Xxxxxxxxxx & Co. Inc. 20,000
First Albany Corporation 20,000
First Southwest Company 20,000
Gilbraltar Securities Co. 20,000
Gruntal & Co., Incorporated 20,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 20,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 20,000
Xxxxxxxxxx Xxxx & Xxxx Incorporated 20,000
XxXxxxxx & Company Securities, Inc. 20,000
XxXxxx, Xxxxx & Co., Inc. 20,000
Xxxxx X. Xxxxx & Company 20,000
Olde Discount Corporation 20,000
Xxxxxx/Xxxxxx Incorporated 20,000
Principal Financial Securities, Inc. 20,000
Pryor, McClendon, Counts & Co., Inc. 20,000
Xxxxxxxx Xxxxxx Refsnes, Inc. 20,000
Xxxxx & Co., L.L.C. 20,000
Xxxxx & Xxxxxxxxxxxx, Inc. 20,000
Xxxxxx Xxxxxxx & Co. Inc. 20,000
Xxxxxxxx Inc. 20,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 20,000
Stone & Xxxxxxxxx 20,000
Sutro & Co. Incorporated 20,000
U.S. Clearing Corp. 20,000
Xxxxxxxx Capital Partners, L.P. 20,000
---------
TOTAL 7,000,000
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: $.50 for Preferred Securities sold
to certain institutions; $.7875 for Preferred Securities sold to other
purchasers
Schedule III
[Letterhead of XXXXXXXX XXXXXXX LLP]
__________ __, 199_
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285
GEORGIA POWER CAPITAL TRUST II
7.60% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) its formation of Georgia Power Capital Trust
II, 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 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 B ___% 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) its issuance of a guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Preferred Securities 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)
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. 333- 06037, 000-00000-00, 000-00000-00,
333-06307-03) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated _______ ___, 199_ as supplemented by a final 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, 1995, 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
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 and as to matters of Delaware law upon the opinion dated the date
hereof rendered to you by Xxxxxxxx, Xxxxxx & Finger, 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
2
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
3
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.
4
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
5
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
6
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 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
7
Schedule IV
[Letterhead of XXXXXXXX, XXXXXX & FINGER]
__________ __, 199_
Xxxxxx Brothers Inc., as Representative
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Georgia Power Capital Trust II
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 __________, 199_ (the "Underwriting
Agreement"), among the Company, the Trust, Xxxxxx Brothers Inc. 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 June 13, 1996
(the "Original Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on June 13, 1996;
(b) The Trust Agreement of the Trust, dated as of
June 13, 1996, 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 Certificate of Amendment to the Original Certificate,
dated _________, 199_ (the "Certificate of Amendment"), as filed in the office
of the Secretary of State on _________, 199_ (the Original Certificate as
amended by the Certificate of Amendment being hereinafter
referred to as the "Certificate").
(e) The Underwriting Agreement;
(f) The Prospectus, dated August 16, 1996 (the "Prospectus"),
as supplemented by the Prospectus Supplement dated ____________, 199_ (the
"Prospectus Supplement"), relating to the __% Trust 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
(g) 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 (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) 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
2
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 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
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
4
in the Prospectus Supplement under the caption "Georgia Power Capital Trust II"
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
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. 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 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
5
Schedule V
[Letterhead of Xxxxxxxx, Xxxxxx & Finger]
__________ __, 199_
Xxxxxx Brothers Inc.,
as Representative
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Georgia Power Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Georgia Power Capital Trust II
c/o Georgia Power Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Re: Georgia Power Capital Trust II
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank Delaware, a
Delaware banking corporation ("CBD"), in connection with the formation of
Georgia Power Capital Trust II, a business trust existing under the laws of the
State of Delaware (the "Trust") pursuant to the Trust Agreement, dated June 13,
1996, by and between CBD, 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 (collectively, 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 Brothers Inc., the several Underwriters named in Schedule II 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. CBD 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 CBD and constitutes a legal, valid and binding obligation of CBD,
enforceable against CBD, in accordance with its terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by CBD, does not conflict with or constitute a breach
of, or default under, the charter or by-laws of CBD.
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 CBD 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 CBD (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.
2
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent transfer or conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity (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 CBD, 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
CBD) 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
3
Schedule VI
[Letterhead of Cravath, Swaine & Xxxxx]
__________ __, 199_
Xxxxxx Brothers Inc.,
as Representative
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Georgia Power Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Georgia Power Capital Trust II
c/o Georgia Power Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Georgia Power Capital Trust II
7.60% Trust Preferred Securities
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_ (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 Trust Agreement,
the Guarantee 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.
2
Very truly yours,
CRAVATH, SWAINE & XXXXX
3
Schedule VII
[Letterhead of XXXXX XXXXXXXXXX]
__________ __, 199_
Xxxxxx Brothers Inc., as Representative
3 World Financial Center
New York, New York 10285-1600
GEORGIA POWER CAPITAL TRUST II
7.60% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Georgia Power Company
(the "Company") of Georgia Power Capital Trust II (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 B ___%
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 Preferred Securities Guarantee Agreement dated as of __________,
199_ (the "Guarantee Agreement") between the Company and ____________________,
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 Representative (the "Underwriting Agreement"). This opinion is
being delivered to you as Representative 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 (No. 33- _______) 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 final supplemental prospectus 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 December 31, 1995, 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.
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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
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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,
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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
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