Exhibit 1
$150,000,000 Series U Floating Rate Senior Notes
due February 17, 2009
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
February 12, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with each of you (collectively, the
"Underwriters", which term shall also include any underwriter substituted as
hereinafter provided in Section 10 hereof) with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of $150,000,000 aggregate principal amount of the Series U Floating Rate Senior
Notes due February 17, 2009 (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 Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and amended and as to be further supplemented and amended by a
twenty-first supplemental indenture, dated as of February 17, 2004, 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.
Pursuant to a Calculation Agent Agreement, dated as of
February 15, 2003 (the "Calculation Agent Agreement"), between the Company and
JPMorgan Chase Bank, as calculation agent thereunder (the "Calculation Agent"),
the Company has engaged the Calculation Agent to perform certain services with
respect to the floating interest rate on the Senior Notes.
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3 (File Nos. 333-105815,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-105815-04) in respect of the
Senior Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the "Commission");
such registration statement 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 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, included in such
registration statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the 1933 Act, being
hereinafter called a "Preliminary Prospectus"); such registration statement, as
it became effective, including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 at the time
such registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in the
form in which it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the Senior
Notes in the form in which it is filed with the Commission, pursuant to Rule
424(b) under the 1933 Act in accordance with Section 3(e) hereof, including any
documents incorporated by reference therein as of the date of such filing, being
hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act and the
rules and regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such documents contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; and
any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents are filed
with the Commission, will comply in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the Commission
thereunder and, when read together with the Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use in the Final
Supplemented Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series U Senior
Notes-- Book-Entry Only Issuance-- The Depository Trust Company".
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the Commission,
as the case may be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (as hereinafter defined)
and the General Rules and Regulations of the Commission thereunder and do not
and will not, (i) as of the applicable effective date as to the Registration
Statement and any amendment thereto and (ii) as of the applicable filing date as
to the Final Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the case of the Registration Statement and any amendment thereto, and, in the
light of the circumstances under which they were made, not misleading in the
case of the Final Supplemented Prospectus and any Prospectus as further amended
or supplemented; except that the Company makes no warranties or representations
with respect to: (A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "1939 Act"); (B) statements or omissions made in
the Registration Statement or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by the
Underwriters expressly for use therein; or (C) any information set forth in the
Final Supplemented Prospectus under the caption "Description of the Series U
Senior Notes-- Book-Entry Only Issuance-- The Depository Trust Company".
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the
laws of the State of Georgia and has due corporate authority to carry on the
public utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and sell the
Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will, on the Closing
Date, constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance, moratorium or
other similar laws affecting creditors' rights generally or (2) general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Enforceability Exceptions"); the Indenture
will conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the Closing Date, the
Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes will have
been duly executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment therefor as described in the
Final Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(j) The Calculation Agent 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
Calculation Agent Agreement by the Calculation Agent, the Calculation Agent
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.
(k) The execution, delivery and performance by the Company of this
Agreement, the Calculation Agent 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.
(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; (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.
(m) The financial statements incorporated by reference in the
Registration Statement and the Final Supplemented Prospectus, together with the
related schedules and notes, present fairly, in all material respects, the
financial position, results of operations and cash flows of the Company as of
and for the dates indicated; said financial statements have been prepared in
conformity with accounting principles generally accepted in the United States
("GAAP") applied on a consistent basis (except that the unaudited financial
statements may be subject to normal year-end adjustments) throughout the periods
involved and necessarily include amounts that are based on the best estimates
and judgments of management. The selected financial data and the summary
financial information included in the Final Supplemented Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements
incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter, severally and not jointly,
agrees to purchase from the Company, the principal amount of Senior Notes set
forth in Schedule I to this Agreement opposite the name of such Underwriter
(plus any additional amount of Senior Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof), at a
price equal to 100% of the principal amount thereof.
(b) Payment of the purchase price and delivery of certificates for the
Senior Notes shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at 10:00 A.M., New York time, on
February 17, 2004 (unless postponed in accordance with the provisions of Section
10) or such other time, place or date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of the
certificates for Senior Notes to the Underwriters.
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 Underwriters 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 Underwriters 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
Underwriters sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) 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 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating to the
offering of the Senior Notes in such quantities as the Underwriters may from
time to time reasonably request. If, during the period (not exceeding nine
months) when the delivery of a prospectus shall be required by law in connection
with the sale of any Senior Notes by an Underwriter, any event relating to or
affecting the Company, or of which the Company shall be advised in writing by
the Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary Prospectus or
the Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation of purchases
of the Senior Notes and (ii) at its expense, make any such filing or prepare and
furnish to the Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Supplemented Prospectus
which will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will effect any
other necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Senior Notes after the expiration
of the period specified in the preceding sentence, the Company, upon the request
of such Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
1934 Act and the rules and regulations thereunder; provided, that the Company
shall not file such -------- documents or amendments without also furnishing
copies thereof prior to such filing to the Underwriters 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
Underwriters 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 1933 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to file the
Final Supplemented Prospectus with the Commission and to advise the Underwriters
of such filing and to confirm such advice in writing.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt securities substantially
similar to the Senior Notes (except for the Senior Notes issued pursuant to this
Agreement). The Underwriters agree that commercial paper or other debt
securities with scheduled maturities of less than one year are not subject to
this Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements
of counsel for the Underwriters (including the fees and disbursements
referred to in (iv) below) and 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 and the Calculation Agent, including the fees
and disbursements of counsel for the Trustee and the Calculation Agent
in connection with the Calculation Agent Agreement, the Indenture and
the Senior Notes, (ix) any fees payable in connection with the rating
of the Senior Notes, (x) the cost and charges of any transfer agent or
registrar and (xi) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for that
purpose shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. If filing of the Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus and any such supplement shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in accordance with
the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Underwriters, 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 Underwriters 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 ▇▇▇▇▇▇▇, Swaine &
▇▇▇▇▇ LLP, counsel to the Trustee and the Calculation Agent,
substantially in the form attached hereto as Schedule III.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, and the Underwriters 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.
(5) A letter from Deloitte & Touche LLP dated the Closing Date
to the effect that: (A) they are independent certified public
accountants with respect to the Company within the meaning of the 1933
Act and the rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements audited by them and incorporated by
reference in the Final Supplemented Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
1934 Act and the rules and regulations under the 1934 Act; and (C) on
the basis of certain limited procedures performed through a specified
date not more than five business days prior to the date of such letter,
namely (i) reading the minute books of the Company; (ii) performing the
procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described
in Statement on Auditing Standards No. 71, "Interim Financial
Information" and in Statement on Auditing Standards No. 100, "Interim
Financial Information", as applicable, on the unaudited financial
statements, if any, of the Company incorporated by reference in the
Final Supplemented Prospectus and of the latest available unaudited
financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated by reference in the Final
Supplemented Prospectus; and (iii) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being understood that
the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche
LLP make no representations as to the sufficiency of such procedures
for the Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any,
incorporated by reference in the Final Supplemented Prospectus, for
them to be in conformity with generally accepted accounting principles;
(2) such unaudited condensed financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the unaudited amounts
for Operating Revenues, Earnings Before Income Taxes and Net Income
After Dividends on Preferred Stock and the unaudited Ratio of Earnings
to Fixed Charges set forth in the Final Supplemented Prospectus do not
agree with the amounts set forth in or derived from the unaudited
financial statements for the same period included or incorporated by
reference in the Registration Statement; (4) as of a specified date not
more than five business days prior to the date of delivery of such
letter, there has been any change in the capital stock or long-term
debt of the Company or any decrease in net assets as compared with
amounts shown in the latest unaudited balance sheet incorporated by
reference in the Final Supplemented Prospectus, except in each case for
changes or decreases which (i) the Final Supplemented Prospectus
discloses have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs and
regularly scheduled payments of capitalized lease obligations, (iv) are
occasioned by the purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating thereto, (v) are
occasioned by reclassification of current maturities of long-term debt
or (vi) are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Income Taxes and Net Income After
Dividends on Preferred Stock and the unaudited Ratio of Earnings to
Fixed Charges as of the end of any calendar quarter subsequent to those
set forth in (3) above, which, if available, shall be set forth in such
letter, do not agree with the amounts set forth in or derived from the
unaudited financial statements for the same period or were not
determined on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated by
reference in the Final Supplemented Prospectus.
(6) On the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass upon the
issuance and sale of the Senior Notes as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(7) That no amendment or supplement to the Registration
Statement or the Final Supplemented Prospectus filed subsequent to the
date of this Agreement (including any filing made by the Company
pursuant to Section 13 or 14 of the 1934 Act) 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
Underwriters, shall materially impair the marketability of the Senior
Notes.
(8) The Company shall have performed its obligations when and
as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters 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
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 Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, 1934 Act or
otherwise, and to reimburse any such Underwriter and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus or,
if the Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14 of
the 1934 Act which are incorporated by reference therein, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter for use therein and except that this indemnity with respect to
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
if the Company shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by any 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 Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended or
there shall have been a material disruption in settlement in securities
generally, (ii) minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the Commission or by the New York
Stock Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity, crisis or emergency (including,
without limitation, acts of terrorism) affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result that, in the
reasonable judgment of the Underwriters, the marketability of the Senior Notes
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
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 non-defaulting Underwriters shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the non-defaulting Underwriters shall not have completed
such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10%
of the Senior Notes, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Underwriters 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 Underwriters at ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: Credit Capital Markets; ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Debt Capital Markets Power Group, with a
copy to the General Counsel; and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, III; notices to
the Company shall be mailed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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 among the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
-------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇▇▇▇▇▇ BROTHERS INC.
By: ___________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ___________________________
Name:
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series U
Senior Notes
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 50,000,000
▇▇▇▇▇▇ Brothers Inc. $ 50,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 50,000,000
TOTAL $150,000,000
============
Schedule II
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
February __, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GEORGIA POWER COMPANY
Series U Floating Rate Senior Notes due February 17, 2009
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
$150,000,000 aggregate principal amount of its Series U Floating Rate Senior
Notes due February 17, 2009 (the "Notes") pursuant to a Senior Note Indenture
dated as of January 1, 1998, by and between the Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), as
heretofore supplemented and as supplemented by the Twenty-First Supplemental
Indenture dated as of February 17, 2004 (collectively, the "Indenture"); and
(ii) the purchase by the Underwriters (as defined herein) of the Notes pursuant
to the terms of an Underwriting Agreement dated February 12, 2004 (the
"Underwriting Agreement"), among the Company and the underwriters named in
Schedule I thereto (the "Underwriters"). Pursuant to a Calculation Agent
Agreement, dated as of February 15, 2003 (the "Calculation Agent Agreement"),
between the Company and JPMorgan Chase Bank, as calculation agent thereunder
(the "Calculation Agent"), the Company has engaged the Calculation Agent to
perform certain services with respect to the floating interest rate on the
Notes. This opinion is being delivered to you pursuant to Section 5(c)(1) of the
Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-105815, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-105815-04) pertaining to the Notes and
certain other securities (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus of the
Company dated June 25, 2003 as supplemented by the prospectus supplement dated
February 12, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2002, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended March 31, 2003, June 30, 2003 and September
30, 2003 and the Current Reports on Form 8-K of the Company dated February 13,
2003, February 21, 2003, April 10, 2003, September 8, 2003, September 23, 2003,
December 2, 2003, December 8, 2003, January 12, 2004, January 15, 2004 and
February 12, 2004 (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, the Calculation Agent Agreement 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. Each of the Calculation Agent Agreement and the Indenture has been
duly authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Calculation Agent and the
Trustee, respectively, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with your counsel. Based upon
our examination of the Registration Statement, the Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Final Supplemented Prospectus and
the Exchange Act Documents and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Final Supplemented Prospectus, as of February 12, 2004,
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 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) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series U Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 & ▇▇▇▇▇ LLP]
February __, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series U Floating Rate Senior Notes
due February 17, 2009
Ladies and Gentlemen:
We have acted as counsel to (i) JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Georgia Power Company (the "Company") and
the Bank, as Trustee, and (b) the Twenty-First Supplemental Indenture dated as
of February 17, 2004 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee, and (ii) the Bank in
connection with the Calculation Agent Agreement, dated as of February 15, 2003,
between the Company and the Bank, as Calculation Agent (the "Calculation Agent
Agreement").
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 the Calculation
Agent 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 and the Calculation Agent
Agreement, has duly executed and delivered the Indenture and the Calculation
Agent 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 Company, each of the Indenture and the Calculation Agent 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 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 and the Calculation Agent Agreement 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 and the Calculation
Agent 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 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 & ▇▇▇▇▇ LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
February __, 2004
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
GEORGIA POWER COMPANY
Series U Floating Rate Senior Notes
due February 17, 2009
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $150,000,000 aggregate principal amount
of its Series U Floating Rate Senior Notes due February 17, 2009 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Twenty-First Supplemental Indenture dated as of February 17,
2004 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated February 12, 2004 (the
"Underwriting Agreement"), among the Company and you. Pursuant to a Calculation
Agent Agreement, dated as of February 15, 2003 (the "Calculation Agent
Agreement"), between the Company and JPMorgan Chase Bank, as calculation agent
thereunder (the "Calculation Agent"), the Company has engaged the Calculation
Agent to perform certain services with respect to the floating interest rate on
the Notes. This opinion is being delivered to you pursuant to Section 5(c)(3) of
the Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-105815, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-105815-04) pertaining to the Notes and
certain other securities (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated June
25, 2003, as supplemented by a final prospectus supplement relating to the Notes
dated February 12, 2004 (the "Final Supplemented Prospectus"), which pursuant to
Form S-3 incorporates by reference the Annual Report on Form 10-K of the Company
for the fiscal year ended December 31, 2002, the Quarterly Reports on Form 10-Q
of the Company for the quarters ended March 31, 2003, June 30, 2003 and
September 30, 2003 and the Current Reports on Form 8-K of the Company dated
February 13, 2003, February 21, 2003, April 10, 2003, September 8, 2003,
September 23, 2003, December 2, 2003, December 8, 2003, January 12, 2004,
January 15, 2004 and February 12, 2004 (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture, the Calculation Agent 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 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. Each of the Indenture and the Calculation Agent Agreement
has been duly authorized, executed and delivered by the Company and, assuming
the due authorization, execution and delivery thereof by the Trustee and the
Calculation Agent, respectively, 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 and the Calculation Agent 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 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 you pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of February 12, 2004, 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) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series U Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States and, to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its
opinions pursuant to Section 5(c) of the Underwriting Agreement and Sections
102, 302 and 904 of the Indenture, insofar as such opinions relate to matters of
New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP