Exhibit 1.1
$250,000,000 Series X 5.70% Senior Notes
due January 15, 2045
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof) for whom you are acting as representatives (in such capacity
you shall hereinafter be referred to as the "Representatives"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $250,000,000 aggregate principal amount of the Series X
5.70% Senior Notes due January 15, 2045 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and amended and as to be further supplemented and amended by a
twenty-fourth supplemental indenture, dated as of January 20, 2005, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture" and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos.333-121202,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-121202-04), in respect of
the Senior Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the "Commission");
such registration statement, as amended, and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in such form (except
that copies of the registration statement, as amended, and any post-effective
amendment delivered to the Underwriters need not include exhibits but shall
include all documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or, to the best knowledge of
the Company, threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement, included in such
registration statement, as amended, 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 amended, 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, as amended, became effective, being
hereinafter called the "Registration Statement"; the prospectus relating to the
Senior Notes, in the form in which it was included in the Registration Statement
at the time it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any reference to any
amendment to the Registration Statement shall be deemed to refer to and include
any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
1934 Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; the Prospectus as
supplemented by a preliminary prospectus supplement dated January 12, 2005
relating to the Senior Notes, including any documents incorporated by reference
therein as of such date, being hereinafter called the "Preliminary Supplemented
Prospectus"; and the Prospectus as amended or supplemented in final form by a
prospectus supplement relating to the Senior Notes in the form in which it is
filed with the Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 3(f) hereof, including any documents incorporated by
reference therein as of the date of such filing, being hereinafter called the
"Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder, and as of such time of filing,
when read together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are filed with the
Commission, will comply in all material respects with the applicable provisions
of the 1934 Act and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters through the Representatives expressly
for use in the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus; or (B) any information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under the captions "Description
of the Series X Senior Notes -- Book-Entry Only Issuance -- The Depository Trust
Company" or "The Policy and the Insurer", under the caption "Experts" appearing
on page S-13 thereof or in Appendix A thereto.
(c) The Registration Statement, the Prospectus and, to the extent not used
to confirm sales of the Senior Notes, the Preliminary Supplemented Prospectus
and the Final Supplemented Prospectus comply, and any further amendments or
supplements to the Registration Statement or the Prospectus, when any such
post-effective amendments are declared effective or supplements are filed with
the Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act (as
hereinafter defined) and the General Rules and Regulations of the Commission
thereunder and do not and will not, (i) as of the applicable effective date as
to the Registration Statement and any amendment thereto, (ii) as of the filing
date thereof as to the Preliminary Supplemented Prospectus, and (iii) as of the
date of the Final Supplemented Prospectus and any Prospectus as further amended
or supplemented, contain an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in the case of the Registration Statement and any amendment thereto, and, in the
light of the circumstances under which they were made, not misleading in the
case of the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented; except that
the Company makes no warranties or representations with respect to: (A) that
part of the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"1939 Act"); (B) statements or omissions made in the Registration Statement, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by the Underwriters through the Representatives expressly for use
therein; or (C) any information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under the captions "Description
of the Series X Senior Notes -- Book-Entry Only Issuance -- The Depository Trust
Company" or "The Policy and the Insurer", under the caption "Experts" appearing
on page S-13 thereof or in Appendix A thereto.
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business, to enter into and perform its obligations under
this Agreement and the Indenture and to issue and sell the Senior Notes to the
Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will, on the Closing
Date, constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance, moratorium or
other similar laws affecting creditors' rights generally or (2) general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) (the "Enforceability Exceptions"); the Indenture
will conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the Closing Date, the
Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior
Notes will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by the
Company of the transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Company is
a party or by which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company, or any of its properties.
(k) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guaranty insurance policy (the
"Insurance Policy") issued by Ambac Assurance Corporation (the "Insurer"),
insuring the payment of principal and interest on the Senior Notes, when due.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the issuance
and sale by the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under the
1933 Act or the rules and regulations thereunder; (B) such as may be required
under the Public Utility Holding Company Act of 1935, as amended; (C) the
qualification of the Indenture under the 1939 Act; (D) the approval of the
Georgia Public Service Commission (the "Georgia Commission"); and (E) such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the Registration
Statement and the Final Supplemented Prospectus, together with the related
schedules and notes, present fairly, in all material respects, the financial
position, results of operations and cash flows of the Company as of and for the
dates indicated; said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States ("GAAP") applied
on a consistent basis (except that the unaudited financial statements may be
subject to normal year-end adjustments) throughout the periods involved and
necessarily include amounts that are based on the best estimates and judgments
of management. The selected financial data and the summary financial information
included in the Final Supplemented Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited and unaudited financial statements incorporated by reference in the
Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Company, the principal amount of
Senior Notes set forth in Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of Section 10
hereof), at a price equal to 96.85% of the principal amount thereof.
(b) Payment of the purchase price and delivery of certificates for the
Senior Notes shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue
of the Americas, New York, New York at 10:00 A.M., New York time, on January 20,
2005 (unless postponed in accordance with the provisions of Section 10) or such
other time, place or date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer in
federal funds at the Closing Date against delivery of the Senior Notes to the
Representatives. It is understood that each Underwriter has authorized the
Representatives, for each Underwriter's account, to accept delivery of, receipt
for and make payment of the principal amount of the Senior Notes which each
Underwriter has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the principal amount of the Senior Notes to be purchased by any
Underwriter whose payment has not been received by the Closing Date, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
delivery of the Senior Notes shall be made in fully registered form, registered
in the name of CEDE & CO., to the offices of The Depository Trust Company in New
York, New York or its designee, and the Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally filed
and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company is advised thereof, it
will advise the Representatives orally of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement, or the institution of
any proceedings therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Company will deliver to the
Representatives sufficient conformed copies of the Registration Statement, the
Prospectus, the Preliminary Supplemented Prospectus and the Final Supplemented
Prospectus and of all supplements and amendments thereto (in each case without
exhibits) for distribution to the Underwriters and, from time to time, as many
copies of the Prospectus, the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the ▇▇▇▇ ▇▇▇.
(b) The Company will furnish the Underwriters with copies of each amendment
and supplement to the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus relating to the offering of the Senior Notes in such
quantities as the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Senior Notes by an
Underwriter, any event relating to or affecting the Company, or of which the
Company shall be advised in writing by the Underwriters, shall occur, which in
the opinion of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus in order to
make the Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by reference
in the Preliminary Prospectus or the Prospectus in order to comply with the 1933
Act or the 1934 Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Senior Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment or amendments to
the Final Supplemented Prospectus which will supplement or amend the Final
Supplemented Prospectus so that, as supplemented or amended, it will not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Final Supplemented Prospectus is delivered, not
misleading or which will effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in connection with the sale of
any Senior Notes after the expiration of the period specified in the preceding
sentence, the Company, upon the request of such Underwriter, will furnish to
such Underwriter, at the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments to the Final
Supplemented Prospectus, complying with Section 10(a) of the 1933 Act. During
the period specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all documents
or amendments required under the 1934 Act and the rules and regulations
thereunder; provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof -------- prior to such filing
to the Representatives and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable securities
laws of such states and the other jurisdictions of the United States as the
Representatives may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the ▇▇▇▇ ▇▇▇)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) The Company will use its best efforts to effect the listing of the
Senior Notes on the New York Stock Exchange.
(f) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, the Company
will file the Final Supplemented Prospectus with the Commission and will advise
the Representatives of such filing and will confirm such advice in writing.
(g) During a period of 15 days from the date of this Agreement, the Company
will not, without the Representatives' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt securities substantially
similar to the Senior Notes (except for the Senior Notes issued pursuant to this
Agreement). The Representatives agree that (i) commercial paper or other debt
securities with scheduled maturities of less than one year and (ii) senior notes
issued in denominations other than $25 per note and not listed on a national
securities exchange are not subject to this Section 3(g).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements
of counsel for the Underwriters (including the fees and disbursements
referred to in (iv) below) and the Company's counsel and accountants,
(iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any blue sky survey (such fees and disbursements of
counsel shall not exceed $3,500), (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally
filed and of each amendment thereto and of the Prospectus, the
Preliminary Supplemented Prospectus, the Final Supplemented Prospectus
and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii)
the fee of the National Association of Securities Dealers, Inc. in
connection with its review of the offering contemplated by this
Agreement, if applicable, (viii) the fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Senior Notes, (ix) any fees
payable in connection with the rating of the Senior Notes, (x) the fees
and expenses incurred in connection with the listing of the Senior
Notes on the New York Stock Exchange, (xi) the premium payable to the
Insurer in connection with the issuance of the Insurance Policy, (xii)
the cost and charges of any transfer agent or registrar and (xiii) the
cost of qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for that
purpose shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. If filing of the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus and any such supplement shall have been filed in
the manner and within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in accordance with
the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representatives, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the Company
unless within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect that such
order contains an unacceptable provision).
(c) On the Closing Date, the Representatives shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇
LLP, counsel to the Trustee, substantially in the form attached
hereto as Schedule III.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V
(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
Company, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the President or any Vice
President of the Company, and dated as of the Closing Date, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date, (iii) the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied on or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(e) On the Closing Date, the Representatives shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the effect that: (A)
they are an independent registered public accounting firm with respect to the
Company within the meaning of the 1933 Act and the rules and regulations under
the 1933 Act; (B) in their opinion, the financial statements audited by them and
incorporated by reference in the Final Supplemented Prospectus comply as to form
in all material respects with the applicable accounting requirements of the 1934
Act and the rules and regulations under the 1934 Act; and (C) on the basis of
certain limited procedures performed through a specified date not more than five
business days prior to the date of such letter, namely (i) reading the minute
books of the Company; (ii) performing the procedures specified by the standards
of the Public Company Accounting Oversight Board (United States) ("PCAOB") for a
review of interim financial statement information as described in PCAOB Interim
Standard AU 722, "Interim Financial Information", on the unaudited financial
statements, if any, of the Company incorporated by reference in the Final
Supplemented Prospectus and on the latest available unaudited financial
statements of the Company, if any, for any calendar quarter subsequent to the
date of those incorporated by reference in the Final Supplemented Prospectus;
and (iii) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such unaudited
financial statements or any specified unaudited amounts derived therefrom (it
being understood that the foregoing procedures do not constitute an audit
performed in accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche LLP make no
representations as to the sufficiency of such procedures for the Underwriters'
purposes), nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed financial
statements, if any, incorporated by reference in the Final Supplemented
Prospectus, for them to be in conformity with generally accepted accounting
principles; (2) such unaudited condensed financial statements do not comply as
to form in all material respects with the applicable accounting requirements of
the 1934 Act as it applies to Form 10-Q and the related published rules and
regulations thereunder; (3) the unaudited amounts for Operating Revenues,
Earnings Before Income Taxes and Net Income After Dividends on Preferred Stock
and the unaudited Ratio of Earnings to Fixed Charges set forth in the Final
Supplemented Prospectus do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period included or
incorporated by reference in the Registration Statement; (4) as of a specified
date not more than five business days prior to the date of delivery of such
letter, there has been any change in the capital stock or long-term debt of the
Company or any decrease in net assets as compared with amounts shown in the
latest unaudited balance sheet incorporated by reference in the Final
Supplemented Prospectus, except in each case for changes or decreases which (i)
the Final Supplemented Prospectus discloses have occurred or may occur, (ii) are
occasioned by the declaration of dividends, (iii) are occasioned by draw-downs
and regularly scheduled payments of capitalized lease obligations, (iv) are
occasioned by the purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, (v) are occasioned by
reclassification of current maturities of long-term debt or (vi) are disclosed
in such letter; and (5) the unaudited amounts for Operating Revenues, Earnings
Before Income Taxes and Net Income After Dividends on Preferred Stock and the
unaudited Ratio of Earnings to Fixed Charges 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 it may reasonably require for the
purpose of enabling it to pass upon the issuance and sale of the Senior Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Senior Notes as herein contemplated
shall be satisfactory in form and substance to the Representatives and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters.
(g) On the Closing Date, the Senior Notes shall have been approved for
listing on the New York Stock Exchange upon notice of issuance.
(h) No amendment or supplement to the Registration Statement or the Final
Supplemented Prospectus filed subsequent to the date of this Agreement
(including any filing made by the Company pursuant to Section 13 or 14 of the
▇▇▇▇ ▇▇▇) shall be unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP or shall
contain information (other than with respect to an amendment or supplement
relating solely to the activity of the Underwriters) which, in the reasonable
judgment of the Representatives, shall materially impair the marketability of
the Senior Notes.
(i) The Company shall have performed its obligations when and as provided
under this Agreement.
(j) On the Closing Date, the Representatives shall have received evidence
that the Insurance Policy has been issued by the Insurer and confirmation that
the Senior Notes have been rated at least "Aaa" by ▇▇▇▇▇'▇ Investors Service,
Inc. and at least "AAA" by Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representatives. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, 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, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus or, if the Company shall furnish to the
Underwriters any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are incorporated by
reference therein, in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus as so amended or supplemented, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus, Preliminary
Supplemented Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives for use therein and except that this
indemnity with respect to the Preliminary Prospectus, the Prospectus, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus, if the
Company shall have furnished any amendment or supplement thereto, shall not
inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus (exclusive of documents incorporated
therein by reference pursuant to Item 12 of Form S-3), as the same may then be
amended or supplemented, shall not have been sent or given by or on behalf of
such Underwriter to such person with or prior to the written confirmation of the
sale involved and the untrue statement or alleged untrue statement or omission
or alleged omission was corrected in the Preliminary Prospectus, the Prospectus,
the Preliminary Supplemented Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by any Underwriter through
the Representatives for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended or
there shall have been a material disruption in settlement in securities
generally, (ii) minimum or maximum ranges for prices shall have been generally
established on the New York Stock Exchange by the Commission or by the New York
Stock Exchange, (iii) a general banking moratorium shall have been declared by
federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any other
substantial national or international calamity, crisis or emergency (including,
without limitation, acts of terrorism) affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result that, in the
reasonable judgment of the Representatives, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representatives pursuant
to subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters for the reasonable fees and disbursements of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER.
If an Underwriter shall fail on the Closing Date to purchase
the Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting 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 Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the Senior Notes, the non-defaulting Underwriters shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
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 Representatives at Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, III; notices to the Company shall be mailed to 241 ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Secretary,
with a copy to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
CITIGROUP GLOBAL MARKETS INC.
By: ___________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. incorporated
By: ___________________________
Name:
Title:
As Representatives of the other Underwriters
named in Schedule I hereto
NAME OF UNDERWRITER Principal Amount of Series X
Senior Notes
Citigroup Global Markets Inc. $41,750,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 41,750,000
Banc of America Securities LLC 41,625,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 41,625,000
UBS Securities LLC 41,625,000
Wachovia Capital Markets, LLC 41,625,000
------------
TOTAL $250,000,000
Schedule II
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
January , 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
GEORGIA POWER COMPANY
Series X 5.70% Senior Notes due January 15, 2045
Ladies and Gentlemen:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) the Company's issuance and sale of
$250,000,000 aggregate principal amount of its Series X 5.70% Senior Notes due
January 15, 2045 (the "Notes") pursuant to a Senior Note Indenture dated as of
January 1, 1998, by and between the Company and JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank), as trustee (the "Trustee"), as
heretofore supplemented and as supplemented by the Twenty-Fourth Supplemental
Indenture dated as of January 20, 2005 (collectively, the "Indenture"); and (ii)
the purchase by the Underwriters (as defined herein) of the Notes pursuant to
the terms of an Underwriting Agreement dated January 13, 2005 (the "Underwriting
Agreement"), among the Company and the underwriters named in Schedule I thereof
(the "Underwriters") for whom you are acting as Representatives. This opinion is
being delivered to you pursuant to Section 5(c)(1) of the Underwriting
Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3, as amended (File Nos. 333-121202,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-121202-04), pertaining to
the Notes and certain other securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus of
the Company dated January 12, 2005, as supplemented by the prospectus supplement
dated January 13, 2005 (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, 2003 (the "Form 10-K"), the Quarterly
Reports on Form 10-Q of the Company for the quarters ended March 31, 2004, June
30, 2004 and September 30, 2004 and the Current Reports on Form 8-K of the
Company dated January 12, 2004, January 15, 2004, February 12, 2004, May 7,
2004, May 18, 2004, July 1, 2004, August 11, 2004, August 11, 2004, August 12,
2004, December 21, 2004, January 10, 2005 and January 13, 2005 (the "Exchange
Act Documents"), each as filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Georgia Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with your counsel. Based upon
our examination of the Registration Statement, the Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Final Supplemented Prospectus and
the Exchange Act Documents and our participation in the conferences referred to
above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Final Supplemented Prospectus, as of January 13, 2005,
complied as to form in all material respects with the relevant requirements of
the Act and the applicable rules and regulations of the Commission thereunder
and that the Exchange Act Documents, as of their respective dates of filing with
the Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of its
effective date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series X Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" or "The
Policy and the Insurer", under the caption "Experts" appearing on page S-13
thereof or in Appendix A thereto.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c)(3) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule III
[Letterhead of Cravath, Swaine & ▇▇▇▇▇ LLP]
January 13, 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ambac Assurance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Georgia Power Company
Series X 5.70% Senior Notes
due January 15, 2045
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank) (the "Bank") in connection with (a)
the Senior Note Indenture, dated as of January 1, 1998 as heretofore
supplemented (the "Original Indenture"), between Georgia Power Company (the
"Company") and the Bank, as Trustee, and (b) the Twenty-Fourth Supplemental
Indenture dated as of January 20, 2005 (together with the Original Indenture,
herein called the "Indenture"), between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) Based solely on a certificate from the
Comptroller of the Currency, the Bank is a national banking association formed
under the laws of the United States and is authorized thereunder to transact
the business of banking;
(ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties
under the Indenture, has duly executed and delivered the Indenture, and, insofar
as the laws governing the trust powers of the Bank are concerned and assuming
due authorization, execution and delivery thereof by the Company, the Indenture
constitutes a legal, valid and binding agreement of the Bank, enforceable
against the Bank in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the
Bank of the Indenture do not conflict with or
constitute a breach of the articles of association or bylaws of the Bank; and
(iv) no approval, authorization or other action by,
or filing with, any governmental authority of the
United States of America or the State of New York having jurisdiction over the
trust powers of the Bank is required in connection with the execution and
delivery by the Bank of the Indenture or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & ▇▇▇▇▇ LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
January , 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the Several Underwriters
Georgia Power Company
Series X 5.70% Senior Notes
due January 15, 2045
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $250,000,000 aggregate principal amount
of its Series X 5.70% Senior Notes due January 15, 2045 (the "Notes") pursuant
to a Senior Note Indenture dated as of January 1, 1998, by and between the
Company and JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Twenty-Fourth Supplemental Indenture dated as of January 20,
2005 (collectively, the "Indenture"); and (ii) the purchase by the Underwriters
(as defined herein) of the Notes pursuant to the terms of an Underwriting
Agreement dated January 13, 2005 (the "Underwriting Agreement"), among the
Company and the underwriters named in Schedule I thereof (the "Underwriters")
for whom you are acting as Representatives. This opinion is being delivered to
you as Representatives pursuant to Section 5(c)(3) of the Underwriting
Agreement.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3, as amended (File Nos. 333-121202,
▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇, ▇▇▇-▇▇▇▇▇▇-▇▇ and 333-121202-04), pertaining to
the Notes and certain other securities (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated January 12, 2005, as supplemented by a final prospectus supplement
relating to the Notes dated January 13, 2005 (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, 2003
(the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended March 31, 2004, June 30, 2004 and September 30, 2004 and the
Current Reports on Form 8-K of the Company dated January 12, 2004, January 15,
2004, February 12, 2004, May 7, 2004, May 18, 2004, July 1, 2004, August 11,
2004, August 11, 2004, August 12, 2004, December 21, 2004, January 10, 2005 and
January13, 2005 (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP dated the date
hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged, to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. 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 13, 2005, complied as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of its
effective date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contained, as of its date, or
contains, on the date hereof, any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference in
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series X Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" or "The
Policy and the Insurer", under the caption "Experts" appearing on page S-13
thereof or in Appendix A thereto.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States and, to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its
opinions (i) pursuant to Section 5(c)(1) of the Underwriting Agreement and to
Sections 102, 302 and 904 of the Indenture and (ii) in connection with the
Company's listing application with respect to the Notes to The New York Stock
Exchange, Inc., insofar as such opinions relate to matters of New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
2
Schedule V
[Letterhead of Ambac Assurance Corporation]
January , 2005
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the Several Underwriters
Georgia Power Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Georgia Power Company
Series X 5.70% Senior Notes
due January 15, 2045
Ladies and Gentleman:
This opinion has been requested of the undersigned, a Vice
President and an Assistant General Counsel of Ambac Assurance Corporation., a
Wisconsin stock insurance company ("Ambac Assurance"), in connection with the
issuance by Ambac Assurance of a certain Financial Guaranty Insurance Policy and
endorsement thereto, effective as of the date hereof (the "Policy"), insuring
$250,000,000 in aggregate principal amount of the Georgia Power Company (the
"Issuer") Series X 5.70% Senior Notes due January 15, 2045 (the "Obligations").
In connection with my opinion herein, I have examined the
Policy, such statutes, documents and proceedings as I have considered necessary
or appropriate under the circumstances to render the following opinion,
including, without limiting the generality of the foregoing, certain statements
contained in the Prospectus Supplement dated January 13, 2005 to the Prospectus
of the Issuer dated January 12, 2005 relating to the Obligations (the
"Prospectus Supplement") under the headings "The Policy and the Insurer" and
"Appendix A -- Form of Policy".
Based upon the foregoing and having regard to legal
considerations I deem relevant, I am of the opinion that:
1. Ambac Assurance is a stock insurance corporation duly
organized and validly existing under the laws of the State of
Wisconsin and duly qualified to conduct an insurance business
in the State of Georgia.
2. Ambac Assurance has full corporate power and authority to
execute and deliver the Policy and the Policy has been duly
authorized, executed and delivered by Ambac Assurance and
constitutes a legal, valid and binding obligation of Ambac
Assurance enforceable in accordance with its terms except to
the extent that the enforceability (but not the validity) of
such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law
or enactment now or hereafter enacted affecting the
enforcement of creditors' rights.
3. The execution and delivery by Ambac Assurance of the Policy
will not, and the consummation of the transactions
contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the
terms, conditions or provisions of the Certificate of
Authority, Articles of Incorporation or By-Laws of Ambac
Assurance, or any restriction contained in any contract,
agreement or instrument to which Ambac Assurance is party or
by which it is bound or constitute a default under any of the
foregoing.
4. Proceedings legally required for the issuance of the Policy
have been taken by Ambac Assurance and licenses, orders,
consents or other authorizations or approvals of any
governmental boards or bodies legally required for the
enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or
approvals not obtained are not material to the enforceability
of the Policy.
5. The statements contained in the Prospectus Supplement under
the heading "The Policy and the Insurer", insofar as such
statements constitutes summaries of the matters referred to
therein, accurately reflect and fairly present the information
purported to be shown and, insofar as such statements describe
Ambac Assurance, fairly and accurately describe Ambac
Assurance. The form of Policy contained in the Prospectus
Supplement under the heading "Appendix A -- Form of Policy"is
a true and complete copy of the form of Policy.
Very truly yours,
Vice President and
Assistant General Counsel