EXHIBIT 1
$200,000,000 Series F 5.75% Senior Notes due January 31,
2003 $150,000,000 Series G 6.20% Senior Notes due
February 1, 2006
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
January 26, 2001
Lehman Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
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 representative (in such capacity
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $200,000,000 aggregate principal amount of the Series F
5.75% Senior Notes due January 31, 2003 (the "2003 Notes") and $150,000,000
aggregate principal amount of the Series G 6.20% Senior Notes due February 1,
2006 (the "2006 Notes" and, together with the 2003 Notes, the "Senior Notes") as
set forth in Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a sixth supplemental indenture and a seventh
supplemental indenture, each dated as of February 1, 2001 to the Base Indenture
relating to the Senior Notes (the "Supplemental Indentures," 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. 333-75193, 333-75193-01 and 333-75193-02), in respect of the
Senior Notes and certain other securities has been prepared and filed
in accordance with the provisions of the Securities Act of 1933, as
amended (the
"1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Underwriters, has been
declared effective by the Commission in such form (except that
copies of the registration statement, as amended, and any
post-effective amendment delivered to the Underwriters need not
include exhibits but shall include all documents incorporated by
reference therein); and no stop order suspending the
effectiveness of such registration statement has been issued and
no proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary
prospectus supplement, included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the 1933 Act, being
hereinafter called a "Preliminary Prospectus"); such registration
statement, as it became effective, including the exhibits thereto
and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the time such registration statement
became effective, being hereinafter called the "Registration
Statement"; the prospectus relating to the Senior Notes, in the
form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective date
of the Registration Statement that is incorporated by reference
in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to
the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 3(g) hereof, including any documents
incorporated by reference therein as of the date of such filing,
being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission,
complied in all material respects with the applicable provisions of
the 1934 Act and the rules and regulations of the Commission
thereunder, and as of such time of filing, when read together with
the Prospectus, none of such documents contained an untrue statement
of a material act or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the
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light of the circumstances under which they were made, not misleading;
and any further documents so filed and incorporated by reference
in the Prospectus or any further amendment or supplement thereto,
when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934
Act and the rules and regulations of the Commission thereunder
and, when read together with the Prospectus as it otherwise may
be amended or supplemented, will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the caption "Description of the
Senior Notes - Book-Entry Only Issuance -- The Depository Trust
Company."
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus comply, and any further amendments or
supplements to the Registration Statement or the Prospectus, when
any such post-effective amendments are declared effective or
supplements are filed with the Commission, as the case may be,
will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act
(hereinafter defined) and the General Rules and Regulations of
the Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and
any amendment thereto, and (ii) as of the applicable filing date
as to the Final Supplemented Prospectus and any Prospectus as
further amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the
Company makes no warranties or representations with respect to
(A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1)
(collectively, the "Form T-1") under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or omissions
made in the Registration Statement or the Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters expressly
for use therein or (C) any information set forth in the Final
Supplemented Prospectus under the caption "Description of the
Senior Notes - Book-Entry Only Issuance -- The Depository Trust
Company."
(d) With respect to the Registration Statement, the conditions for
use of Form S-3, as set forth in the General Instructions
thereof, have been satisfied.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus,
except as otherwise stated therein, there has been no material
adverse change in the business, properties or financial condition
of the Company.
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(f) The Company is a corporation duly organized and existing under
the laws of the State of Georgia and has due corporate authority
to carry on the public utility business in which it is engaged
and to own and operate the properties used by it in such
business, to enter into and perform its obligations under this
Agreement and the Indenture and to issue and sell the Senior
Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery
of the Indenture by the Trustee, the Indenture will, on the
Closing Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization,
receivership, liquidation, fraudulent conveyance, moratorium or
other similar laws affecting creditors' rights generally or (2)
general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in
the Final Supplemented Prospectus; and, on the Closing Date, the
Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior
Notes will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the
consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the
charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by
which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would
not, individually or in the aggregate, be materially adverse to
the Company or materially adverse
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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) 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.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter, severally and not jointly, agrees to purchase from
the Company, the principal amount of 2003 Notes set forth in
Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of 2003 Notes that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof), at a price equal to 99.564% of
the principal amount thereof and the principal amount of 2006
Notes set forth in Schedule I to this Agreement opposite the name
of such Underwriter (plus any additional amount of 2006 Notes
that such Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof), at a price equal to
99.449% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made at the offices of Dewey Ballantine LLP, 1301 Avenue
of the Americas, New York, New York at 10:00 A.M., New York time,
on February 1, 2001 (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 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 Representative. It is understood that
each Underwriter has authorized the Representative, for its
account, to accept delivery of, receipt for, and make payment of
the principal amount of the Senior Notes which it has agreed to
purchase. The Representative, individually and not as
Representative 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.
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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 certificates for the Senior Notes 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.
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 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 Company will deliver to the Representative sufficient
conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for
distribution to the Underwriters and, from time to time, as many
copies of the Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such quantities
as the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery
of a prospectus shall be required by law in connection with the
sale of any Senior Notes by an Underwriter, any event relating to
or affecting the Company, or of which the Company shall be
advised in writing by the Underwriters, shall occur, which in the
opinion of the Company or of Underwriters' counsel should be set
forth in a supplement to or an amendment of the Final
Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the
Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or the 1934
Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Senior Notes and (ii) at
its expense, make any such filing or prepare and furnish to the
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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 Representative and Dewey
Ballantine 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 Representative may
designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a consent to service
of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close
of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the
rules and regulations under the 1933 Act) covering a twelve-month
period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in
Rule 158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriters' prior written
consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Senior Notes
or any security convertible into or exchangeable into or
exercisable for the Senior Notes or any debt securities
substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement and the senior notes to
be issued that are designated the Series H senior notes).
(f) As soon as practicable after the date of this Agreement, and in
any event within the time prescribed by Rule 424 under the 1933
Act, to file the Final Supplemented Prospectus with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
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SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incidental to the performance of its obligations under this
Agreement, including but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificate(s)
for the Senior Notes, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Senior Notes under
securities laws in accordance with the provisions of Section 3(c)
hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with
the preparation of any blue sky survey (such fees and disbursements of
counsel shall not exceed $3,500), (v) the printing and delivery to the
Underwriters of copies of the Registration Statement as originally filed and
of each amendment thereto and of the Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the
fee of the National Association of Securities Dealers, Inc. in connection
with its review of the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Senior Notes, (ix) any fees payable in connection with the rating of
the Senior Notes, (x) the cost and charges of any transfer agent or
registrar and (xi) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the Senior Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such
date. If filing of the Final Supplemented Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full
force and effect and shall contain no provision unacceptable to
the Underwriters or the Company (but all provisions of such order
or orders heretofore entered, copies of which have heretofore
been delivered to the 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).
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(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Troutman Sanders
LLP, counsel for the Company, substantially in the form
attached hereto as Schedule II.
(2) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore, counsel to the Trustee, substantially in the form
attached hereto as Schedule III.
(3) The opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriters, substantially
in the form attached hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which
information is given in the Registration Statement and the
Final Supplemented Prospectus, any material adverse change
in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of
business, and the Representative shall have received a
certificate of the President or any Vice President of the
Company, and dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii)
the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on
or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have
been initiated or, to the knowledge of the Company,
threatened by the Commission.
(5) On the Closing Date, the Representative shall have received
from Arthur Andersen LLP a letter dated the Closing Date to the effect
that: (A) they are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the rules and
regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the rules and
regulations under the 1934 Act; and (C) on the basis of certain limited
procedures performed through a specified date not more than five
business days prior to the date of such letter, namely (i) reading
the minute books of the Company; (ii) performing the procedures
specified by the American Institute of Certified Public Accountants
("AICPA") for a review of interim financial information as described
in Statement on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if any, of the
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Company incorporated in the Prospectus and of the latest
available unaudited financial statements of the Company, if
any, for any calendar quarter subsequent to the date of
those incorporated in the Prospectus; and (iii) making
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters
regarding such unaudited financial statements or any
specified unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not constitute
an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in
such letter, and accordingly that Arthur Andersen LLP make
no representations as to the sufficiency of such procedures
for the Underwriters' purposes), nothing came to their
attention that caused them to believe that: (1) any material
modifications should be made to the unaudited condensed
financial statements, if any incorporated in the Prospectus,
for them to be in conformity with generally accepted
accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and
the related published rules and regulations thereunder; (3)
the unaudited amounts for Operating Revenues, Earnings
Before Interest and 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 or were not determined on a basis
substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by
reference in Registration Statement; (4) as of a specified
date not more than five business days prior to the date of
delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any
decrease in net assets as compared with amounts shown in the
latest audited balance sheet incorporated in the Prospectus,
except in each case for changes or decreases which (i) the
Prospectus discloses have occurred or may occur, (ii) are
occasioned by the declaration of dividends, (iii) are
occasioned by draw-downs under existing pollution control
financing arrangements, (iv) are occasioned by draw-downs
and regularly scheduled payments of capitalized lease
obligations, (v) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, or (vi) are
disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Interest and 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 Prospectus.
(6) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass
upon the issuance and sale of the Senior Notes as herein
contemplated and related proceedings, or in order to
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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 Representative and Dewey Ballantine LLP,
counsel for the Underwriters.
(7) That no amendment or supplement to the Registration
Statement or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14 of
the 1934 Act) shall be unsatisfactory in form to Dewey
Ballantine 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 Representative, shall materially impair the
marketability of the Senior Notes.
(8) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. 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.
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SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
under the 1933 Act, 1934 Act or otherwise, and to reimburse any such
Underwriter and such controlling person or persons, if any, for any legal or
other expenses incurred by them in connection with defending any actions,
insofar as such losses, claims, damages, liabilities or actions arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14
of the 1934 Act which are incorporated therein by reference, in any
Preliminary Prospectus, the Registration Statement, the Prospectus or
the Final Supplemented Prospectus as so amended or supplemented, or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by,
or through the Representative on behalf of, the Underwriters for use therein
and except that this indemnity with respect to the Preliminary Prospectus,
the Prospectus or the Final Supplemented Prospectus, if the Company shall
have furnished any amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or
actions arising from the sale of the Senior Notes to any person if a copy of
the Preliminary Prospectus, the Prospectus or the Final Supplemented
Prospectus (exclusive of documents incorporated therein by reference pursuant
to Item 12 of Form S-3), as the same may then be amended or supplemented,
shall not have been sent or given by or on behalf of such Underwriter to
such person with or prior to the written confirmation of the sale involved and
the untrue statement or alleged untrue statement or omission or alleged
omission was corrected in the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus as supplemented or amended at the
time of such confirmation. Each Underwriter agrees, within ten days after
the receipt by it of notice of the commencement of any action in respect of
which indemnity may be sought by it, or by any person controlling it, from the
Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such
Underwriter or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section7. 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
12
participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof, at its own expense.
In case the Company elects to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such counsel shall
be at the expense of such Underwriter or such controlling person unless the
employment of such counsel has been authorized in writing by the
Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release
of the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its
officers who have signed the Registration Statement and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act to the same extent and upon the same
terms as the indemnity agreement of the Company set forth in Section 7(a)
hereof, but only with respect to alleged untrue statements or omissions made
in the Registration Statement, the Preliminary Prospectus, the Prospectus
or the Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the 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 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 Representative may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally
suspended, (ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the Commission or
by the New York Stock Exchange, (iii) a general banking moratorium shall
13
have been declared by federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by the United
States Congress or any other substantial national or international calamity
or emergency affecting the United States, in any such case provided for in
clauses (i) through (iv) with the result that, in the reasonable judgement
of the Representative, the marketability of the Senior Notes shall have
been materially impaired.
(b) If this Agreement shall be terminated by the
Representative 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 Dewey Ballantine 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 Representative 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 Representative 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, 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 Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
14
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 Lehman
Brothers Inc., 3 World Financial Center, 9th Floor, New York, New York 10285,
Attention: Debt Capital Markets, Power Group; notices to the
Company shall be mailed to 241 Ralph McGill Boulevard, N.E., Atlanta
Georgia 30308-3374, Attention: Corporate Secretary, with a copy to Southern
Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303,
Attention: Christopher J. Kysar.
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.
15
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
LEHMAN BROTHERS INC.
As Representative of the Several Underwriters
named in Schedule I hereto
By: LEHMAN BROTHERS INC.
By: ___________________________
Title:
SCHEDULE I
Principal Amount of Principal Amount of
Name of Underwriters 2003 Notes 2006 Notes
- -------------------- ---------- ----------
Lehman Brothers Inc. $160,000,000 $120,000,000
BNY Capital Markets, Inc. $20,000,000 $15,000,000
Barclays Capital Inc. $10,000,000 $7,500,000
Jackson Securities Inc. $10,000,000 $7,500,000
----------- ----------
TOTAL: $200,000,000 $150,000,000
------------ ------------
Schedule II
[Letterhead of TROUTMAN SANDERS LLP]
________ __, 2001
Lehman Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
GEORGIA POWER COMPANY
Series F _% Senior Notes due __, 2003
Series G _% Senior Notes due __, 2006
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
$200,000,000 aggregate principal amount of its Series F _% Senior Notes due __,
2003 (the "2003 Notes") and $150,000,000 aggregate principal amount of its
Series G _% Senior Notes due __, 2006 (the "2006 Notes" and, together with the
2003 Notes, the "Notes") pursuant to a Senior Note Indenture dated as of January
1, 1998, by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and as supplemented by the Sixth
Supplemental Indenture dated as of _____ __, 2001 and by the Seventh
Supplemental Indenture dated as of _____ __, 2001 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated ______ __, 2001 (the "Underwriting Agreement"),
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative. This opinion is being
delivered to you as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos.333-75193, 333-75193-01 and
333-75193-02) 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 _______________ as
supplemented by the prospectus supplement dated __________, 2001 (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
_________________, the Quarterly Reports on Form 10-Q of the Company for the
quarters ended ________ and the Current Reports on Form 8-K of the Company dated
_________________, _________________ and _____________ (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 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, 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 Dewey
Ballantine 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
2
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 and in the second paragraph under the caption "Experts" on page __
of the Final Supplemented Prospectus. In the course of the preparation by the
Company of the Registration Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with certain officers and
employees of the Company, with representatives of Arthur Andersen LLP, and with
your counsel. Based upon our examination of the Registration Statement, the
Final Supplemented Prospectus and the Exchange Act Documents, our investigations
made in connection with the preparation of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents and our participation in
the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Final Supplemented
Prospectus, as of _______________, complied as to form in all material respects
with the relevant requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Senior Notes - Book-Entry Only Issuance - The Depository
Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Dewey Ballantine 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,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore]
_______ __, 2001
Lehman Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series F _% Senior Notes due __, 2003
Series G _% Senior Notes due __, 2006
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of January 1,
1998 as heretofore supplemented (the "Original Indenture"), between Georgia
Power Company (the "Company") and the Bank, as Trustee and (b) the Sixth
Supplemental Indenture and the Seventh Supplemental Indenture, each dated as of
___, 2001 (together with the Original Indenture, herein called the "Indenture"),
between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws of
the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the Indenture has
duly executed and delivered the Indenture, and, insofar as the laws governing
the trust powers of the Bank are concerned and assuming due authorization,
execution and delivery thereof by the Company, the Indenture constitutes a
legal, valid and binding agreement of the Bank, enforceable against the Bank in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
(iii) the execution, delivery and performance by
the Bank of the Indenture do not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
(iv) no approval, authorization or other action
by, or filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of the Bank
is required in connection with the execution and delivery by the Bank of the
Indenture or the performance by the Bank of its duties thereunder, except such
as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
________ __, 2001
Lehman Brothers Inc.
As Representative of the Several Underwriters
3 World Financial Center
New York, New York 10285
GEORGIA POWER COMPANY
Series F _% Senior Notes due __, 2003
Series G _% Senior Notes due __, 2006
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Georgia Power Company (the "Company") of $200,000,000 of its Series F _% Senior
Notes due __, 2003 (the "2003 Notes") and $150,000,000 of its Series G _% Senior
Notes due __, 2006 (the "2006 Notes" and, together with the 2003 Notes, the
"Notes") pursuant to a Senior Note Indenture dated as of January 1, 1998 by and
between the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Sixth Supplemental
Indenture and the Seventh Supplemental Indenture, each dated as of ________ __,
2001 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated ________ __, 2001,
among the Company and the underwriters named in Schedule I thereto (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)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-75193, 333-75193-01 and
333-75193-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated __________, as supplemented by a final prospectus supplement relating to
the Notes dated _______, 2000, which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended ____________, the Quarterly Reports on Form 10-Q of the Company for the
quarters ended _________ and the Current Reports on Form 8-K of the Company
dated _________________, _________________ and _____________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined 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 Indenture, the Calculation Agent Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of Troutman Sanders LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the 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 Arthur Andersen 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 ______, 2001, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1999 (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Senior Notes --Book-Entry Only Issuance --The Depository
Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Troutman Sanders LLP may rely on this opinion in giving
their opinions pursuant to Section 5(c) of the Underwriting Agreement and to
Sections 102, 302 and 904 of the Indenture insofar as such opinions relate to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP