Exhibit 1
GEORGIA POWER CAPITAL TRUST VII
(a Delaware Statutory Trust)
5-7/8% Trust Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
January 15, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Georgia Power Capital Trust VII (the "Trust"), a statutory
trust organized under the Statutory Trust Act (the "Delaware Act") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (ss.) 3801
et seq.), and Georgia Power Company, a Georgia corporation (the "Company" and,
together with the Trust, the "Offerors"), confirm their agreement (the
"Agreement") with you and each of the other Underwriters named in Schedule I
hereto (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
you are acting as representative (in such capacity, you shall hereinafter be
referred to as the "Representative"), with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 5-7/8% Trust Preferred Securities (Liquidation Amount $25
per Preferred Security) of the Trust (the "Preferred Securities") set forth in
Schedule I hereto. The Preferred Securities are more fully described in the
Final Supplemented Prospectus (as defined below). The Preferred Securities will
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant to the
Guarantee Agreement (the "Guarantee Agreement"), dated as of January 1, 2004,
between the Company and JPMorgan Chase Bank, as trustee (the "Guarantee
Trustee"). The Preferred Securities and the related Guarantee are referred to
herein as the "Securities".
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase $206,185,575
aggregate principal amount of Series G 5-7/8% Junior Subordinated Notes due
January 15, 2044 (the "Junior Subordinated Notes") to be issued by the Company.
The Preferred Securities and the Common Securities will be issued pursuant to an
Amended and Restated Trust Agreement, dated as of January 1, 2004 (the "Trust
Agreement"), among the Company, as Depositor, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ Boston
(the "Administrative Trustees"), Chase Manhattan Bank USA, National Association,
a national banking association (the "Delaware Trustee"), and JPMorgan Chase
Bank, a New York banking corporation (the "Property Trustee" and, together with
the Delaware Trustee and the Administrative Trustees, the "Trustees") and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Junior Subordinated Notes will be issued pursuant to an indenture,
dated as of June 1, 1997 (the "Base Indenture"), between the Company and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as trustee
(the "Debt Trustee"), and a fifth supplemental indenture to the Base Indenture,
dated as of January 23, 2004 (the "Supplemental Indenture" and, together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Debt Trustee.
The Company and the Trust will enter into an Agreement as to
Expenses and Liabilities dated as of January 1, 2004 (the "Agreement as to
Expenses and Liabilities") pursuant to which the Company will guarantee on a
subordinated basis to each person or entity to whom the Trust may be indebted or
liable, the full payment of such obligations.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and severally
represent and warrant to each Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-105815,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-105815-04) in
respect of the Preferred Securities, the Guarantee, the Junior
Subordinated Notes and certain other securities (the "Registered
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 you, and to you
for each of the other Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration
statement and any post-effective amendment delivered to you for each of
the other Underwriters need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to the
best knowledge of the Company, threatened by the Commission (any
preliminary prospectus 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 Registered Securities, in the form in which it was
included in the Registration Statement at the time it became effective,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference
to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the
case may be, under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and the Prospectus as amended or supplemented
in final form by a prospectus supplement relating to the Preferred
Securities, the Guarantee and the Junior Subordinated 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 neither the Trust nor the Company makes any
warranty or representation to any Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter through you expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Preferred Securities--
Book-Entry Only Issuance-- The Depository Trust Company".
(c) The Registration Statement and the Prospectus comply, and the Final
Supplemented Prospectus and any further amendments or supplements to
the Registration Statement or the Prospectus, when any such
post-effective amendments are declared effective or supplements are
filed with the Commission, as the case may be, will comply, in all
material respects with the applicable provisions of the 1933 Act, the
1934 Act, the Trust Indenture Act of 1939, as amended (the "1939 Act"),
and the General Rules and Regulations of the Commission thereunder and
do not and will not, (i) as of the applicable effective date as to the
Registration Statement and any amendment thereto and (ii) as of the
applicable filing date as to the Final Supplemented Prospectus and any
Prospectus as further amended or supplemented, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
neither the Company nor the Trust makes any warranties or
representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) under the 1939 Act, (B) statements or omissions made in the
Registration Statement or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the
Trust or the Company by an Underwriter expressly for use therein or (C)
any information set forth in the Final Supplemented Prospectus under
the caption "Description of the Preferred Securities-- 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) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust (it being
understood that any such change involving only the Company shall not
constitute such a change with respect to the Trust).
(g) The Company has been duly incorporated and is validly 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, to own and
operate the properties used by it in such business, to enter into and
perform its obligations under this Agreement, the Trust Agreement, the
Indenture and the Guarantee Agreement and to purchase, own and hold the
Common Securities issued by the Trust and to issue and deliver the
Junior Subordinated Notes and the Guarantee.
(h) The Trust has been duly created and is validly existing and in good
standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Registration Statement and the Final Supplemented Prospectus and to
enter into and perform its obligations under this Agreement and the
Trust Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Supplemented Prospectus; the Trust is and will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(i) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and the
Final Supplemented Prospectus, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the Trust and will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and, on the Closing
Date (as defined herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(j) This Agreement has been duly authorized, executed and delivered by each
of the Offerors.
(k) The Trust Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company
and the Administrative Trustees and, assuming due authorization,
execution and delivery of the Trust Agreement by the Delaware Trustee
and the Property Trustee, the Trust Agreement will, on the Closing
Date, be a valid and binding obligation of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors'
rights generally or (2) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity)
(the "Enforceability Exceptions") and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus; and, on the Closing Date, the Trust Agreement will have
been duly qualified under the 1939 Act.
(l) The Guarantee Agreement and the Agreement as to Expenses and
Liabilities have been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Guarantee Agreement by the other respective parties thereto, the
Guarantee Agreement and the Agreement as to Expenses and Liabilities
will, on the Closing Date, constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with their
respective terms except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions, and each of the Guarantee,
the Guarantee Agreement and the Agreement as to Expenses and
Liabilities will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; and,
on the Closing Date, the Guarantee Agreement will have been duly
qualified under the 1939 Act.
(m) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; the
issuance of the Preferred Securities is not subject to preemptive or
other similar rights; (subject to the terms of the Trust Agreement)
holders of Preferred Securities will be entitled to the same limitation
of personal liability under Delaware law as extended to stockholders of
private corporations for profit.
(n) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions; the Indenture will conform in all material respects to all
statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Indenture will have been duly
qualified under the ▇▇▇▇ ▇▇▇.
(o) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the 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.
(p) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(q) The Junior Subordinated Notes are subordinated and junior in right of
payment to all "Senior Indebtedness" (as defined in the Indenture) of
the Company.
(r) Each of the Administrative Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(s) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is nor, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(t) The execution, delivery and performance by the Offerors of this
Agreement, the Preferred Securities and the Common Securities, by the
Company of the Indenture, the Junior Subordinated Notes, the Guarantee
Agreement, the Trust Agreement, the Guarantee and the Agreement as to
Expenses and Liabilities and the consummation by the Offerors of the
transactions contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and thereunder
shall have been duly authorized by all necessary action (corporate or
otherwise) on the part of the Offerors and do not and will not result
in any violation of the charter or bylaws of the Company, the Trust
Agreement or the related Certificate of Trust and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Trust or the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Trust or the Company is a party or by which either of them
may be bound or to which any of their properties may be subject (except
for conflicts, breaches or defaults which would not, individually or in
the aggregate, be materially adverse to the Trust or the Company or
materially adverse to the transactions contemplated by this Agreement)
or (B) any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Trust or the
Company, or any of their respective properties.
(u) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions contemplated in this Agreement, except (A) such as may
be required under the 1933 Act or the rules and regulations thereunder;
(B) such as may be required under the Public Utility Holding Company
Act of 1935, as amended; (C) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the 1939 Act; (D) the
approval of the Georgia Public Service Commission (the "Georgia
Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or "blue sky" laws.
(v) 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 Registration Statement and 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 UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at the price per security
set forth in Schedule II hereto, the number of Preferred Securities set forth in
Schedule I hereto opposite the name of such Underwriter, plus any additional
number of Preferred Securities that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price set forth on Schedule II hereto, which is a fixed
price determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date to the Representative, for the accounts of the
several Underwriters, a commission per Preferred Security as set forth on
Schedule II hereto for the Preferred Securities to be delivered by the Trust
hereunder on the Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ at 9:00 A.M., New York City time, on
January 23, 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
Representative, the Trust and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Trust by wire transfer in federal funds at the Closing Date, against delivery to
the Representative for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them. Certificates
for the Preferred Securities shall be in such denominations and registered in
such names as the Representative may request in writing at least two business
days before the Closing Date. It is understood that each Underwriter has
authorized the Representative, for each Underwriter's account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The Representative,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose 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 Preferred Securities 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 Preferred Securities will be made
available for examination by the Representative not later than 12:00 Noon, New
York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and severally
covenants with each Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Offerors will deliver to the Underwriters sufficient conformed
copies of the Registration Statement, the Prospectus and the Final
Supplemented Prospectus and of all supplements and amendments thereto
(in each case without exhibits) for distribution to each Underwriter
and, from time to time, as many copies of the Prospectus and the Final
Supplemented Prospectus as the Underwriters may reasonably request for
the purposes contemplated by the 1933 Act or the ▇▇▇▇ ▇▇▇.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating
to the offering of the Preferred Securities in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Preferred
Securities by an Underwriter or dealer, any event relating to or
affecting the Company, or of which the Company shall be advised in
writing by the Underwriters, shall occur, which in the opinion of the
Company or of Underwriters' counsel should be set forth in a supplement
to or an amendment of the Final Supplemented Prospectus in order to
make the Final Supplemented Prospectus not misleading in the light of
the circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus or Prospectus
in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation of
purchases of the Preferred Securities and (ii) at its expense, make any
such filing or prepare and furnish to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Final Supplemented Prospectus which will supplement
or amend the Final Supplemented Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is
required to deliver a prospectus in connection with the sale of any
Preferred Securities after the expiration of the period specified in
the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the Company
will continue to prepare and file with the Commission on a timely basis
all documents or amendments required under the 1934 Act and the rules
and regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies thereof
prior to such filing to the Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities and, to the extent required or
advisable, the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws of such states
and the other jurisdictions of the United States as the Representative
may designate; provided, however, that neither of the Offerors shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a consent to service of process
or to file annual reports or to comply with any other requirements in
connection with such qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the ▇▇▇▇ ▇▇▇) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) The Offerors will use best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the Junior
Subordinated Notes on any exchange on which the Preferred Securities
are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the
Trust nor the Company will, without the Representative's prior written
consent, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Preferred Securities, any
security convertible into or exchangeable into or exercisable for
Preferred Securities or Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes or
equity securities substantially similar to the Preferred Securities
(except for the Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, the
Offerors will file the Final Supplemented Prospectus with the
Commission and advise the Representative of such filing and confirm
such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of each Offeror's obligations under this Agreement, including
but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Preferred
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the qualification of the
Preferred Securities and, to the extent required or advisable, the Guarantee and
the Junior Subordinated Notes, under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Final Supplemented
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Debt Trustee, including the fees and disbursements of
counsel for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Delaware Trustee, the
Property Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Trust Agreement and
the related Certificate of Trust, (x) the fees and disbursements of Delaware
counsel to the Trust, (xi) any fees payable in connection with the rating of the
Preferred Securities and the Junior Subordinated Notes, (xii) the cost and
charges of any transfer agent or registrar, (xiii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Notes on the New York Stock Exchange and
(xiv) the cost of qualifying the Preferred Securities with The Depository Trust
Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Preferred Securities, including fees and disbursements of
their counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Preferred Securities are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Orders of the Georgia Commission and the Commission permitting the
transactions contemplated hereby substantially in accordance with the
terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company
(but all provisions of such order or orders heretofore entered, copies
of which have heretofore been delivered to the Representative, are
deemed acceptable to the Underwriters and the Company and all
provisions of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to this Agreement
shall give notice to the other parties to the effect that such order
contains an unacceptable provision).
(c) On the Closing Date, the Representative shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel
for the Company, substantially in the form attached hereto as Schedule
III.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., Delaware counsel to the Trust, substantially in the form attached
hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., Delaware counsel to the Delaware Trustee, substantially in the
form attached hereto as Schedule V.
(4) The opinion, dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇ LLP,
counsel to the Property Trustee, the Guarantee Trustee and the Debt
Trustee, substantially in the form attached hereto as Schedule VI.
(5) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, substantially in the form attached hereto as
Schedule VII.
(d) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or financial
condition of the Trust or the Company, whether or not arising in the
ordinary course of business, and the Representative shall have received
a certificate of the President or any Vice President of the Company and
a certificate of the Administrative Trustees of the Trust, and dated
the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the Trust
and the Company have complied with all agreements and satisfied all
conditions on their respective parts to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge
of the Company, threatened by the Commission.
(e) On the Closing Date, the Representative shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the effect
that: (A) they are independent certified public accountants with
respect to the Company within the meaning of the 1933 Act and 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 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 Ratios of Earnings to Fixed Charges and Earnings to Fixed
Charges Plus Preferred Dividend Requirements (Pre-Income Tax Basis) 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 audited 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 the
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 Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis) for any calendar quarter subsequent
to those set forth in (3) above, which if available shall be set forth
in such letter, do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period or were not
determined on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated by
reference in the Final Supplemented Prospectus.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Offerors, in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters.
(g) On the Closing Date, the Preferred Securities shall have been approved
for listing on the New York Stock Exchange upon notice of issuance.
(h) On the Closing Date, the Representative shall have received a
certificate of the Company certifying that a Special Event (as defined
in the Final Supplemented Prospectus) shall not have occurred and be
continuing.
(i) 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 any
Underwriter or Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of the
Preferred Securities.
(j) The Company and the Trust shall have performed their respective
obligations when and as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Offerors at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold harmless each
of the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act, the
1934 Act or otherwise, and to reimburse any such Underwriter and such
controlling person or persons, if any, for any legal or other expenses incurred
by them in connection with defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the Final
Supplemented Prospectus or, if the Offerors shall furnish to the Underwriters
any amendments or any supplements thereto, or shall make any filings pursuant to
Section 13 or 14 of the 1934 Act which are incorporated therein by reference, in
any Preliminary Prospectus, the Registration Statement, the Prospectus or the
Final Supplemented Prospectus as so amended or supplemented, or arise out of or
are based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus or Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representative on behalf of, any
Underwriter for use therein and except that this indemnity with respect to the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, if
the Offerors shall have furnished any amendment or supplement thereto, shall not
inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Preferred Securities to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Offerors on account of its agreement contained in this
Section 7, to notify the Offerors in writing of the commencement thereof but the
omission of such Underwriter so to notify the Offerors of any such action shall
not release the Offerors from any liability which they may have to such
Underwriter or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 7. In case any such action shall
be brought against the Underwriters or any such person controlling such
Underwriters and such Underwriter shall notify the Offerors of the commencement
thereof as above provided, the Offerors shall be entitled to participate in
(and, to the extent that they shall wish, including the selection of counsel, to
direct) the defense thereof, at their own expense. In case the Offerors elect to
direct such defense and select such counsel, any Underwriter or such controlling
person shall have the right to employ its own counsel, but, in any such case,
the fees and expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless the employment of such counsel has been
authorized in writing by the Offerors in connection with defending such action.
No indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect
of which indemnification may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and
(ii) does not include any statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party. In no
event shall any indemnifying party have any liability or responsibility in
respect of the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim effected
without its prior written consent.
(b) The Company agrees to indemnify the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under Section 7(a)
hereof.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement, the Trust and each other Underwriter and each person, if
any, who controls the Offerors or any such other Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to the same
extent and upon the same terms as the indemnity agreement of the Offerors set
forth in Section 7(a) hereof, but only with respect to alleged untrue statements
or omissions made in the Registration Statement, the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Offerors by, or through the Representative on behalf of, such
Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice to the Offerors,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended or there shall have
been a material disruption in settlement of 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, (iv) there shall have occurred any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
the United States Congress or any other substantial national or international
calamity, crisis or emergency (including without limitation, acts of terrorism)
affecting the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of the
Representative, the marketability of the Preferred Securities shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Offerors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable to perform their
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, for the reasonable fees and disbursements
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an amount not
exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Preferred Securities
and, upon such reimbursement, the Offerors shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Preferred
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Offerors shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Fixed Income
Syndicate Desk; notices to the Offerors shall be directed to the Company at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred to in Section
7 hereof and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and the
Trust and the Company and their respective successors, and said controlling
persons and officers, directors and trustees and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Preferred Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By:
---------------------------------------
Title:
------------------------------------
GEORGIA POWER CAPITAL TRUST VII
By: Georgia Power Company, as Depositor
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
-----------------------------------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule I hereto
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF PREFERRED SECURITIES
------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 1,862,500
Banc of America Securities LLC 1,862,500
Citigroup Global Markets Inc. 1,862,500
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 1,862,500
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 50,000
▇.▇. ▇▇▇▇ & Company 50,000
▇▇▇▇▇▇▇▇ & Partners, L.P. 50,000
▇▇▇▇▇▇ & Company 50,000
▇▇▇▇▇▇▇ Securities LLC 50,000
The Malachi Group, Inc. 50,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & Company, Incorporated 50,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. 50,000
SunTrust Capital Markets, Inc. 50,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. 50,000
▇.▇. ▇▇▇▇▇▇▇ and Company 50,000
------
TOTAL 8,000,000
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $.7875
Schedule III
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
January __, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GEORGIA POWER CAPITAL TRUST VII
5-7/8% TRUST PREFERRED SECURITIES
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) its formation of Georgia Power Capital Trust
VII, a Delaware statutory trust (the "Trust"), pursuant to the Amended and
Restated Trust Agreement dated as of January 1, 2004 among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the Trust's issuance and
sale of 5-7/8% Trust Preferred Securities evidencing approximately a 97%
undivided interest in the assets of the Trust (the "Preferred Securities");
(iii) the Trust's issuance and sale of Common Securities evidencing
approximately a 3% undivided interest in the assets of the Trust; (iv) the
Company's issuance and sale to the Trust of $206,185,575 aggregate principal
amount of its Series G 5-7/8% Junior Subordinated Notes due January 15, 2044
(the "Notes") pursuant to a Subordinated Note Indenture dated as of June 1,
1997, by and between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as Trustee (the "Debt Trustee"), as supplemented by the
Fifth Supplemental Indenture dated as of January 23, 2004 (collectively, the
"Indenture"); (v) the Agreement as to Expenses and Liabilities dated as of
January 1, 2004, between the Company and the Trust (the "Agreement as to
Expenses and Liabilities"); and (vi) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a Guarantee Agreement dated
as of January 1, 2004 (the "Guarantee Agreement") between the Company and
JPMorgan Chase Bank, as trustee (the "Guarantee Trustee"). The Preferred
Securities are being sold to you today pursuant to the terms of an Underwriting
Agreement dated January 15, 2004 (the "Underwriting Agreement"), among the
Company, the Trust and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative. This opinion is being
delivered to you as Representative pursuant to Section 5(c)(1) of the
Underwriting Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-105815, ▇▇▇-▇▇▇▇▇▇-▇▇,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-105815-04) pertaining to the Preferred
Securities and certain other securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus of
the Company and the Trust dated June 25, 2003 as supplemented by a final
prospectus supplement dated January 15, 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 and January 15, 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
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Trust Agreement, the Indenture, the Guarantee Agreement
and the Underwriting Agreement are herein referred to collectively as the
"Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP and relying as to matters of Delaware law upon the opinion dated
the date hereof rendered to you by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the Underwriting
Agreement have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the Company.
3. All orders, consents or other authorizations or approvals of the Georgia
Public Service Commission and the Commission legally required for the issuance
and delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Georgia or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Guarantee 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 Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
7. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the trustees
named therein, the Trust Agreement constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to the qualifications that the enforceability of the Company's
obligation under the Trust Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditor's rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the Trust Agreement has
been duly qualified under the Trust Indenture Act of 1939, as amended.
9. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
10. The statements and legal conclusions contained in the Final Supplemented
Prospectus under the caption "Certain Federal Income Tax Consequences" are
correct in all material respects.
11. To the best of our knowledge, all of the issued and outstanding Common
Securities of the Trust are directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
12. The execution, delivery and performance by the Trust of the Underwriting
Agreement and the Trust Agreement; the issuance by the Trust of the Preferred
Securities and the Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the Trust with its
obligations thereunder do not and will not result in any violation of the Trust
Agreement or the related Certificate of Trust, and do not and will not conflict
with, or result in, a breach of any of the terms or provisions of, or constitute
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by which it may be bound
or to which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), of the
Trust), (B) any existing applicable law, rule or regulation applicable to the
Trust (other than the securities or "blue sky" laws of any jurisdiction, as to
which we express no opinion) or (C) any judgment, order or decree known to us of
any government, governmental instrumentality, or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties; and to the best of our
knowledge, the Trust is not a party to or otherwise bound by any agreement other
than those which, or the forms of which, are exhibits (or included in exhibits)
to the Registration Statement.
13. The Common Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when issued and delivered by the
Trust to the Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and non-assessable beneficial interests in the
assets of the Trust; and the issuance of the Common Securities is not subject to
preemptive or other similar rights.
14. The Preferred Securities have been duly authorized by the Trust Agreement
and (subject to the terms of the Trust Agreement), when delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust; the holders of the Preferred Securities will (subject to
the terms of the Trust Agreement) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders of private
corporations for profit organized under the general corporation law of the State
of Delaware; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
15. The Agreement as to Expenses and Liabilities has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Agreement as to Expenses and Liabilities may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6, 10 and 14 above. In the course of the preparation by the Company of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, we participated in conferences with certain officers and employees of
the Company, with 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 January 15, 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 therein 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 or
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Description of the Preferred Securities -- 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 States of Delaware and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 IV
[Letterhead of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.]
January __, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Georgia Power Capital Trust VII 5-7/8% Trust Preferred Securities
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
VII, a Delaware statutory trust (the "Trust"), in connection with the matters
set forth herein. This opinion is being furnished to you pursuant to Section
5(c)(2) of the Underwriting Agreement, dated January 15, 2004 (the "Underwriting
Agreement"), among the Company, the Trust, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and
the other Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated March 23,
2001 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on March 23, 2001;
(b) The Certificate of Amendment Pursuant to 3807(E) of the
Statutory Trust Act (as defined below), filed with the Secretary of State on
July 9, 2001;
(c) The Trust Agreement of the Trust, dated as of March 23,
2001, between the Company and the trustee of the Trust named therein;
(d) The Amended and Restated Trust Agreement of the Trust,
dated as of January 1, 2004 (including Exhibits A and [C] thereto), among the
Company, the trustees of the Trust named therein and the holders, from time to
time, of the undivided beneficial interests in the assets of the Trust (the
"Trust Agreement");
(e) The Underwriting Agreement;
(f) The Prospectus dated June 25, 2003 and the Prospectus
Supplement dated January 15, 2004 (collectively, the "Prospectus"), relating to
the 5-7/8% Trust Preferred Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"); and
(g) A Certificate of Good Standing for the Trust, dated
______, 2004, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate, as amended, are in full force and effect and have not been amended,
(ii) except to the extent provided in paragraph 1 below, the due organization or
due formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement and the Prospectus, and (vii) the
issuance and sale of the Trust Securities to the Trust Security Holders in
accordance with the Trust Agreement and the Prospectus. We have not participated
in the preparation of the Prospectus.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including New York laws and federal laws, and rules and regulations relating
thereto. Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C. ss. 3801, et
seq. (the "Statutory Trust Act"), and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of the Trust
as a statutory trust have been made.
2. Under the Statutory Trust Act and the Trust Agreement, the Trust has the
trust power and authority to (i) own property and conduct its business, all as
described in the Prospectus, (ii) execute and deliver, and to perform its
obligations under, the Underwriting Agreement, (iii) issue and perform its
obligations under the Trust Securities, and (iv) perform its obligations under
the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust Agreement and
will be duly and validly issued undivided beneficial interests in the assets of
the Trust. Subject to the qualifications set forth in paragraph 6 below, the
Preferred Securities are fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. Under the Statutory Trust Act and the
Trust Agreement, the Trust Securities are not subject to any preemptive or other
similar rights.
4. Under the Statutory Trust Act and the Trust Agreement, the Underwriting
Agreement has been duly authorized by all necessary trust action on the part of
the Trust.
5. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely as a result of the issuance and sale of the Preferred
Securities.
6. The Persons to whom Preferred Securities are to be issued by the Trust
(collectively, the "Preferred Security Holders"), as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities Certificates
and the issuance of replacement Preferred Securities Certificates and (ii)
provide security or indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the Trust
Agreement.
7. The Trust Agreement constitutes a valid and binding obligation of the
Company, and is enforceable against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the Trust Securities, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
consummation by the Trust of the transactions contemplated by the Underwriting
Agreement and the Trust Agreement and compliance by the Trust with its
obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the caption "The
Trusts" and the statements in the Prospectus Supplement under the caption
"Georgia Power Capital Trust VII" and, insofar as they contain statements of
Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
transfer or conveyance and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification. In addition, in connection with the opinion expressed in
paragraph 7 above, to the extent that Section 10.05 of the Trust Agreement
provides that the Trust Agreement is governed by New York law, we express no
opinion concerning Section 10.05 of the Trust Agreement or the effect of Section
10.05 of the Trust Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP relying as to matters
of Delaware law upon this opinion in connection with opinions to be rendered by
them pursuant to the Underwriting Agreement. Except as stated above, without our
prior written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other Person for any purpose.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.
Schedule V
[Letterhead of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.]
January __, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Georgia Power Capital Trust VII
c/o Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Georgia Power Capital Trust VII 5-7/8% Trust Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank USA, National
Association, a national banking association ("Chase USA"), in connection with
the formation of Georgia Power Capital Trust VII, a statutory trust existing
under the laws of the State of Delaware (the "Trust") pursuant to the Trust
Agreement, dated as of March 23, 2001, by and between Chase USA, not in its
individual capacity but solely as trustee (the "Trustee"), and Georgia Power
Company (the "Company"), as amended and restated pursuant to an Amended and
Restated Trust Agreement, dated as of January 1, 2004, among the Company, the
Trustee, the other trustees named therein and the holders from time to time of
the undivided beneficial interests in the assets of the Trust (the "Trust
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(3)
of the Underwriting Agreement, dated January 15, 2004 (the "Underwriting
Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, the several Underwriters
named in Schedule I thereto, Georgia Power Company and the Trust, pursuant to
which the $200,000,000 5-7/8% Trust Preferred Securities of the Trust will be
sold. All capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the corporations or entities
referred to herein as we have deemed necessary or appropriate for the purposes
of the opinions expressed herein. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon the representations and
warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. Chase USA is a national banking association with trust powers, duly formed
and validly existing in good standing under the laws of the United States with
the power and authority to execute, deliver and perform its obligations under
the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and delivered by Chase
USA and constitutes a legal, valid and binding obligation of Chase USA,
enforceable against Chase USA, in accordance with its terms.
3. The execution and delivery of, and performance of the terms of, the Trust
Agreement by Chase USA does not conflict with or constitute a breach of or
default under the Article of Organization or By-laws of Chase USA.
4. No consent, approval or authorization of, or registration, declaration or
filing with, any court or governmental agency or body having jurisdiction in the
premises is required under Delaware law for the execution, delivery or
performance by Chase USA of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice law in the State of Delaware
and we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of Chase USA (except that we express no opinion with
respect to (i) state securities or "blue sky" laws and (ii) other federal laws,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, the Investment Company Act of 1940, as amended, and laws, rules and
regulations relating to money laundering and terrorist groups (including any
requirements imposed under the USA Patriot Act of 2001, as amended)), and we
have not considered and express no opinion on the laws, rules and regulations of
any other jurisdiction.
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent transfer or conveyance and similar laws
relating to and affecting the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than Chase USA, of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
Chase USA) on documents examined by us are genuine, that all documents submitted
to us as originals are authentic, and that all documents submitted to us as
copies or specimens conform with the originals, which facts we have not
independently verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.
Schedule VI
[Letterhead of Cravath, Swaine & ▇▇▇▇▇ LLP]
January __, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Georgia Power Capital Trust VII
c/o Georgia Power Company
241 ▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard N.E.
Georgia, Atlanta 30308
Georgia Power Capital Trust VII
5-7/8% Trust Preferred Securities
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Subordinated Note Indenture, dated as of June 1, 1997, as heretofore
supplemented (the "Original Indenture"), between Georgia Power Company (the
"Company") and the Bank, as Trustee, (b) the Fifth Supplemental Indenture dated
as of January 23, 2004 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of January 1, 2004 (the "Guarantee Agreement"), between the
Company, as Guarantor and the Bank, as Trustee and (d) the Amended and Restated
Trust Agreement, dated as of January 1, 2004 (the "Trust Agreement") among the
Company, the Bank, as Property Trustee, Chase Manhattan Bank USA, National
Association, as Delaware Trustee, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ Boston, as
Administrative Trustees.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, the Guarantee
Agreement and the Trust Agreement and certain resolutions adopted by the Board
of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State of New
York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture, the Guarantee
Agreement and the Trust Agreement, has duly executed and delivered the
Indenture, the Guarantee Agreement and the Trust Agreement, and, insofar as the
laws governing the trust powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the other parties thereto, each
of the Indenture, the Guarantee Agreement and the Trust 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 such
enforceability is considered in a proceeding in equity or at law.
iii) the execution, delivery and performance by the Bank of
the Indenture, the Guarantee Agreement and the Trust Agreement do not conflict
with or constitute a breach of the charter or bylaws of the Bank.
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State of
New York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture, the
Guarantee Agreement or the Trust 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 VII
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
January __, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
as Representative
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GEORGIA POWER CAPITAL TRUST VII
5-7/8% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Georgia Power Company
(the "Company") of Georgia Power Capital Trust VII (the "Trust"), a Delaware
statutory trust, pursuant to the Amended and Restated Trust Agreement dated as
of January 1, 2004 among the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of 5-7/8% Trust Preferred
Securities evidencing approximately a 97% undivided interest in the assets of
the Trust (the "Preferred Securities"); (iii) the Trust's issuance and sale of
Common Securities evidencing approximately a 3% undivided interest in the assets
of the Trust; (iv) the Company's issuance and sale to the Trust of $206,185,575
aggregate principal amount of its Series G 5-7/8% Junior Subordinated Notes due
January 15, 2044 (the "Notes") pursuant to a Subordinated Note Indenture dated
as of June 1, 1997 by and between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as trustee (the "Debt Trustee"), as
heretofore supplemented and as further supplemented by the Fifth Supplemental
Indenture dated as of January 23, 2004 (collectively, the "Indenture"); (v) the
Agreement as to Expenses and Liabilities dated as of January 1, 2004, between
the Company and the Trust (the "Agreement as to Expenses and Liabilities); and
(vi) the Company's issuance of a guarantee (the "Guarantee") of the Preferred
Securities pursuant to a Guarantee Agreement dated as of January 1 2004 (the
"Guarantee Agreement") between the Company and JPMorgan Chase Bank, as trustee,
we have acted as counsel to you and the other underwriters named in the Schedule
I (the "Underwriters") to the Underwriting Agreement dated January 15, 2004,
among the Company, the Trust and the Underwriters for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(5) thereof.
All capitalized terms used herein and 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 Preferred
Securities 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 dated
January 15, 2004, 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 and January 15, 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
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Trust Agreement, the Indenture, the Guarantee Agreement
and the Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the State of Georgia upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP dated the
date hereof and addressed to you and a form of which is attached as Schedule III
to the Underwriting Agreement and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Delaware upon the opinion
of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., dated the date hereof and addressed to you
and a form of which is attached as Schedule IV to the Underwriting Agreement,
that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the Underwriting
Agreement have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the Company.
3. All orders, consents, or other authorizations or approvals of the Georgia
Public Service Commission and the Commission legally required for the issuance
and delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Georgia or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Guarantee Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Guarantee Agreement conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the Trust Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable beneficial interests in the assets of the Trust;
and the Preferred Securities conform as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
9. The Agreement as to Expenses and Liabilities has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Agreement as to Expenses and Liabilities may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6 and 8 above. In the course of the preparation by the Company of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, we participated in conferences with certain officers and employees of
the Company, with representatives of 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 January 15, 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 therein 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 or with respect to information set forth in the Final Supplemented
Prospectus under the caption "Description of the Preferred Securities --
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 laws of the States of Delaware and Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent, except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its
opinion pursuant to Section 5(c) of the Underwriting Agreement and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its opinion pursuant to Sections
102, 302 and 904 of the Indenture, insofar as such opinions relate to matters of
New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP