Exhibit 1
$100,000,000 Series D 6?% Senior Notes
due March 31, 2039
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
March 3, 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof) for whom you are acting as representatives (in such capacity,
you shall hereinafter be referred to as the "Representatives"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $100,000,000 aggregate principal amount of the Series D 6?%
Senior Notes due March 31, 2039 (the "Senior Notes") as set forth in Schedule I
hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a fourth supplemental indenture, dated as of March
9, 1999, to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-43895,
▇▇▇-▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇-▇▇ and 333-43895-03), in respect of the Senior
Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended
(the "1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration statement,
as amended, and any post-effective amendment delivered to the Underwriters
need not include exhibits but shall include all documents incorporated by
reference therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time
it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(g) hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement or
Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the captions "Description of the
Series D Senior Notes - Book-Entry Only Issuance -- The Depository Trust
Company", "The Policy" and "The Insurer."
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments are
declared effective or supplements are filed with the Commission, as the
case may be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (hereinafter
defined) and the General Rules and Regulations of the Commission thereunder
and do not and will not, (i) as of the applicable effective date as to the
Registration Statement and any amendment thereto, and (ii) as of the
applicable filing date as to the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented, contain an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that the Company makes no warranties
or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
(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 or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company
by the Underwriters expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the captions "Description
of the Series D Senior Notes - Book-Entry Only Issuance -- The Depository
Trust Company", "The Policy" and "The Insurer."
(d) With respect to the Registration Statement, the conditions for use of Form
S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws of
the State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell
the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the Closing
Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will
have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized by
the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Final Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions, will be in the form contemplated
by, and entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this Agreement,
the Indenture and the Senior Notes and the consummation by the Company of
the transactions contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the Company and
do not and will not result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to which any of
its properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially adverse to
the Company or materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Company, or any of its
properties.
(k) The Company has duly authorized all necessary action to be taken by it for
the procurement of an irrevocable financial guarantee insurance policy (the
"Insurance Policy") issued by MBIA Insurance Corporation (the "Insurer"),
insuring the payment of principal and interest on the Senior Notes, when
due.
(l) No authorization, approval, consent or order of any court or governmental
authority or agency is necessary in connection with the issuance and sale
by the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B) such as may be
required under the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act"); (C) the qualification of the Indenture under the 1939
Act; (D) the approval of the Georgia Public Service Commission (the
"Georgia Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter, severally and not jointly, agrees to purchase from
the Company, the principal amount of Senior Notes set forth in
Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of Senior Notes that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof), at a price equal to 96.85% of
the principal amount thereof; except that such price will be
increased to 99% of the principal amount of the Senior Notes sold
to certain institutions.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, NationsBank
Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at 10:00
A.M., Atlanta time, on March 9, 1999 (unless postponed in
accordance with the provisions of Section 10) or such other time,
place or date as shall be agreed upon by the Representatives and
the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer in federal funds at the Closing Date
against delivery of the Senior Notes to the Representatives. It
is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Senior Notes
which it has agreed to purchase. The Representatives,
individually and not as Representatives of the Underwriters, may
(but shall not be obligated to) make payment of the principal
amount of the Senior Notes to be purchased by any Underwriter
whose payment has not been received by the Closing Date, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each
case including all exhibits filed therewith, and including
unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by
reference, unless specifically requested). As soon as the Company
is advised thereof, it will advise the Representatives orally of
the issuance of any stop order under the 1933 Act with respect to
the Registration Statement, or the institution of any proceedings
therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Representatives sufficient
conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for
distribution to the Underwriters and, from time to time, as many
copies of the Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act or the ▇▇▇▇ ▇▇▇.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such quantities
as the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery
of a prospectus shall be required by law in connection with the
sale of any Senior Notes by an Underwriter, any event relating to
or affecting the Company, or of which the Company shall be
advised in writing by the Underwriters, shall occur, which in the
opinion of the Company or of Underwriters' counsel should be set
forth in a supplement to or an amendment of the Final
Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the
Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or the 1934
Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Senior Notes and (ii) at
its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final
Supplemented Prospectus which will supplement or amend the Final
Supplemented Prospectus so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Final Supplemented Prospectus is delivered, not misleading or
which will effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in connection
with the sale of any Senior Notes after the expiration of the
period specified in the preceding sentence, the Company, upon the
request of such Underwriter, will furnish to such Underwriter, at
the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments
to the Final Supplemented Prospectus, complying with Section
10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare
and file with the Commission on a timely basis all documents or
amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies
thereof prior to such filing to the Representatives and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Company will endeavor, in cooperation with the Underwriters,
to qualify the Senior Notes for offering and sale under the
applicable securities laws of such states and the other
jurisdictions of the United States as the Representatives may
designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a consent to service
of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close
of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the
rules and regulations under the ▇▇▇▇ ▇▇▇) covering a twelve-month
period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in
Rule 158) of the Registration Statement.
(e) The Company will use its best efforts to effect the listing of
the Senior Notes on the New York Stock Exchange.
(f) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the 1933
Act, to file the Final Supplemented Prospectus with the
Commission and to advise the Representatives of such filing and
to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this
Agreement, including but not limited to, the expenses of (i)
the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for
the Senior Notes, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of
the Senior Notes under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Final
Supplemented Prospectus, and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters
of copies of any blue sky survey, (vii) the fee of the
National Association of Securities Dealers, Inc. in
connection with its review of the offering contemplated by
this Agreement, if applicable, (viii) the fees and expenses
of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and
the Senior Notes, (ix) any fees payable in connection with
the rating of the Senior Notes, (x) the fees and expenses
incurred in connection with the listing of the Senior Notes
on the New York Stock Exchange, (xi) the cost and charges of
any transfer agent or registrar, (xii) the premium payable
to the Insurer in connection with the issuance of the
Insurance Policy, and (xiii) the cost of qualifying the
Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the
Senior Notes are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Representatives, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, counsel for the Company, substantially in the form
attached hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Cravath, Swaine &
▇▇▇▇▇, counsel to the Trustee, substantially in the form
attached hereto as Schedule III.
(3) The opinion, dated as of the Closing Date, of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, substantially
in the form attached hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇, counsel
to the Insurer, substantially in the form attached hereto as
Schedule V.
(5) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which
information is given in the Registration Statement and the
Final Supplemented Prospectus, any material adverse change
in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of
business, and the Representatives shall have received a
certificate of the President or any Vice President of the
Company, and dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii)
the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on
or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have
been initiated or, to the knowledge of the Company,
threatened by the Commission.
(6) On the Closing Date, the Representatives shall have received
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated the Closing Date to
the effect that: (A) they are independent public accountants
with respect to the Company within the meaning of the 1933
Act and the rules and regulations under the 1933 Act; (B) in
their opinion, the financial statements audited by them and
incorporated by reference in the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the rules and regulations
under the 1934 Act; and (C) on the basis of certain limited
procedures performed through a specified date not more than
five business days prior to the date of such letter, namely
(i) reading the minute books of the Company; (ii) performing
the procedures specified by the American Institute of
Certified Public Accountants ("AICPA") for a review of
interim financial information as described in Statement on
Auditing Standards No. 71, "Interim Financial Information",
on the unaudited financial statements, if any, of the
Company incorporated in the Prospectus and of the latest
available unaudited financial statements of the Company, if
any, for any calendar quarter subsequent to the date of
those incorporated in the Prospectus; and (iii) making
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters
regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not constitute
an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 Dividends
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 Registration
Statement; (4) as of a specified date not more than five
business days prior to the date of delivery of such letter,
there has been any change in the capital stock or long-term
debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance
sheet incorporated in the Prospectus, except in each case
for changes or decreases which (i) the Prospectus discloses
have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs
under existing pollution control financing arrangements,
(iv) are occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock
to satisfy mandatory or optional redemption provisions
relating thereto, or (vi) are disclosed in such letter; and
(5) the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis) for any calendar quarter subsequent
to those set forth in (3) above, which if available shall be
set forth in such letter, do not agree with the amounts set
forth in or derived from the unaudited financial statements
for the same period or were not determined on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in the Prospectus.
(7) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass
upon the issuance and sale of the Senior Notes as herein
contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes
as herein contemplated shall be satisfactory in form and
substance to the Representatives and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters.
(8) On the Closing Date, the Senior Notes shall have been
approved for listing on the New York Stock Exchange upon
notice of issuance.
(9)That no amendment or supplement to the Registration Statement
or the Final Supplemented Prospectus filed subsequent to the
date of this Agreement (including any filing made by the
Company pursuant to Section 13 or 14 of the ▇▇▇▇ ▇▇▇) shall
be unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP or shall
contain information (other than with respect to an amendment
or supplement relating solely to the activity of the
Underwriters) which, in the reasonable judgment of the
Representatives, shall materially impair the marketability
of the Senior Notes.
(10) The Company shall have performed its obligations when and as
provided under this Agreement.
(11) Evidence that the Insurance Policy has been issued by the
Insurer and confirmation that the Senior Notes have been
rated at least Aaa by ▇▇▇▇▇'▇ Investor Services, Inc. and at
least AAA by Standard & Poor's Corporation.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the Underwriters
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus as
so amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by, or through
the Representatives on behalf of, the Underwriters for use therein and except
that this indemnity with respect to the Preliminary Prospectus, the Prospectus
or the Final Supplemented Prospectus, if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
losses, claims, damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference pursuant to Item 12 of Form S-3), as the same
may then be amended or supplemented, shall not have been sent or given by or on
behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus as supplemented
or amended at the time of such confirmation. Each Underwriter agrees, within ten
days after the receipt by it of notice of the commencement of any action in
respect of which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the omission of
such Underwriter so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 7. In case any such action shall be brought against an
Underwriter or any such person controlling such Underwriter and such Underwriter
shall notify the Company of the commencement thereof as above provided, the
Company shall be entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense thereof, at its
own expense. In case the Company elects to direct such defense and select such
counsel, any Underwriter or controlling person shall have the right to employ
its own counsel, but, in any such case, the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel has been authorized in writing by the Company in
connection with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representatives on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date
if (i) trading in securities on the New York Stock Exchange
shall have been generally suspended, (ii) minimum or maximum
ranges for prices shall have been generally established on
the New York Stock Exchange by the Commission or by the New
York Stock Exchange, (iii) a general banking moratorium
shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak
or escalation of major hostilities in which the United
States is involved, any declaration of war by the United
States Congress or any other substantial national or
international calamity 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 Representatives, the marketability of the Senior Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representatives pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters for the reasonable fees and
disbursements of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Senior Notes and, upon
such reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER
If an Underwriter shall fail on the Closing Date to purchase
the Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriter, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the Senior Notes, the non-defaulting Underwriter shall be
obligated, severally and not jointly, to purchase the full amount thereof, or
(b) if the principal amount of Defaulted Securities exceeds
10% of the Senior Notes, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall
be directed to the Representatives at ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇; notices to the Company shall be mailed to
241 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and their
respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and
the Company and their respective successors and the
controlling persons and officers and directors referred to
in Section 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the
Underwriters and the Company and their respective
successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Senior Notes from the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be
performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any
one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
PAINEWEBBER INCORPORATED
As Representatives of the other Underwriters
named in Schedule I hereto
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:___________________________
Title:
SCHEDULE I
incipal Amount of
NAME OF UNDERWRITER nior Notes
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 17,125,000
Credit Suisse First Boston Corporation 17,125,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. 17,125,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 17,125,000
PaineWebber Incorporated 17,125,000
ABN AMRO Incorporated 625,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated 625,000
▇▇▇▇▇▇▇▇ & Partners, L.P. 625,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 625,000
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. 625,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated 625,000
▇▇▇▇▇ Securities, Inc. 625,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 625,000
EVEREN Securities, Inc. 625,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc. 625,000
First Chicago Capital Markets, Inc. 625,000
Interstate/▇▇▇▇▇▇▇ Lane Corporation 625,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated 625,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 625,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 625,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 625,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 625,000
▇▇▇▇▇ Capital Markets 625,000
A Division of First Chicago Capital Markets, Inc.
▇▇ ▇▇▇▇▇ Securities Corporation 625,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 625,000
▇▇▇▇▇▇▇▇ Capital Partners, L.P. 625,000
Wheat First Union 625,000
a Division of First Union Capital Markets Corp.
▇▇▇▇▇▇▇▇ Capital Group, L.P. 625,000
TOTAL $100,000,000
Schedule II
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
________ __, 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
GEORGIA POWER COMPANY
Series D ____ % Senior Notes due ________ __, 20__
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) the Company's issuance and sale of $___,__,___
aggregate principal amount of its Series D ____% Senior Notes due ________ __,
20__(the "Notes") pursuant to a Senior Note Indenture dated as of January 1,
1998, by and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), as heretofore supplemented and as supplemented by the Fourth
Supplemental Indenture dated as of _____ __, 1999 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated ______ __, 1999 (the "Underwriting Agreement"),
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representatives (the "Underwriting
Agreement"). This opinion is being delivered to you as Representatives pursuant
to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. ____________________________)
pertaining to the Notes and certain other securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus of the Company dated ___________, 199_ as supplemented by the
prospectus supplement dated __________, 199_ (the "Final Supplemented
Prospectus"), which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended _____________,
199_, the Quarterly Reports on Form 10-Q of the Company for the quarters ended
____________ and the Current Reports on Form 8-K of the Company dated _________
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements."
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Georgia Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the second paragraph under the caption "Experts" on page S-__
of the Final Supplemented Prospectus. 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 relevant requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the year ended December 31, 1997
(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 and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company", "The Policy" and "The Insurer."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule III
[Letterhead of Cravath, Swaine & ▇▇▇▇▇]
_______ __, 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
MBIA Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Georgia Power Company
Series D ____% Senior Notes
Due _________ __, 20__
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of January 1,
1998 as heretofore supplemented (the "Original Indenture"), between Georgia
Power Company (the "Company") and the Bank, as Trustee, and (b) the Fourth
Supplemental Indenture dated as of _________ __, 1999 (together with the
Original Indenture, herein called the "Indenture"), between the Company and the
Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws of
the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties
under the Indenture, has duly executed and delivered the Indenture, and, insofar
as the laws governing the trust powers of the Bank are concerned and assuming
due authorization, execution and delivery thereof by the Company, the Indenture
constitutes a legal, valid and binding agreement of the Bank, enforceable
against the Bank in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the
Bank of the Indenture do not conflict with or
constitute a breach of the charter or bylaws of the Bank; and
(iv) no approval, authorization or other action by,
or filing with, any governmental authority of the
United States of America or the State of New York having jurisdiction over the
trust powers of the Bank is required in connection with the execution and
delivery by the Bank of the Indenture or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & ▇▇▇▇▇
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
________ __, 1999
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
GEORGIA POWER COMPANY
Series D ____ % Senior Notes
Due ________ __, 20__
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $___,___,___ of its Series D ____%
Senior Notes (the "Notes") pursuant to a Senior Note Indenture dated as of
January 1, 1998 by and between the Company and The Chase Manhattan Bank, as
trustee (the "Trustee"), as heretofore supplemented and as further supplemented
by the Fourth Supplemental Indenture dated as of ________ __, 1999
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated ________ __, 1999,
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representatives (the "Underwriting
Agreement"). This opinion is being delivered to you as Representatives pursuant
to Section 5(c)(3) 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 (File Nos.
_______________________________) pertaining to the Notes (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 relating to the Notes dated _________, which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended ________________, 199_, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended _________, and the Current Reports on Form
8-K of the Company dated __________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Company's Annual Report on Form 10-K for the year ended December 31, 1997
(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 and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company", "The Policy" and "The Insurer."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving
their opinions pursuant to Section 5(c) of the Underwriting Agreement and to
Sections 102, 302 and 904 of the Indenture and in connection with the Company's
listing application with respect to the Notes to the New York Stock Exchange,
Inc., insofar as such opinions relate to matters of New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
Schedule V
[Letterhead of ▇▇▇▇▇ ▇▇▇▇]
__________ __, 199_
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
PaineWebber Incorporated
As Representatives of the Several Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GEORGIA POWER COMPANY
Series D __ % Senior Notes
Due _______ __, 20__
Ladies and Gentlemen:
We have acted as special counsel to the MBIA Insurance Corporation (the
"Corporation") in connection with the issuance of Financial Guaranty Insurance
Policy No. _____ (the "Policy") relating to $___,000,000 GEORGIA POWER COMPANY
Series D ____% Senior Notes due __________ __, 20__.
We are familiar with and have examined a copy of the Policy and such
other relevant documents as we have deemed necessary.
Based upon the foregoing, we are of the following opinion:
1. The Corporation is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State of New
York, and is licensed and authorized to issue the Policy under the laws
of the State of New York.
2. The Policy has been duly executed and is a valid and
binding obligation of the Corporation enforceable in accordance with
its terms except that the enforcement of the Policy may be limited by
laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws 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).
3. The Policy is not required to be registered under the
Securities Act of 1933, as amended.
4. The statements set forth under the caption "THE POLICY" in
the Prospectus Supplement dated March __, 1999 (the "Prospectus
Supplement") insofar as such statements constitute a description of the
Policy, accurately summarize the Policy.
We have not reviewed and render no opinion with respect to any
financial information contained in the Prospectus Supplement.
Very truly yours,