Exhibit 1
$90,000,000 Series I 5.25% Senior Notes
due May 8, 2003
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
May 1, 2001
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with each of you (the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $90,000,000
aggregate principal amount of the Series I 5.25% Senior Notes due May 8, 2003
(the "Senior Notes") as set forth in Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a ninth supplemental indenture, dated as of May 8,
2001, 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. 333-57884,
333-57884-01, 333-57884-02, 333-57884-03 and 333-57884-04), 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 or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the 1933 Act, being
hereinafter called a "Preliminary Prospectus"); such registration statement, as
it became effective, including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 at the time
such registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in the
form in which it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the Senior
Notes in the form in which it is filed with the Commission, pursuant to Rule
424(b) under the 1933 Act in accordance with Section 3(g) hereof, including any
documents incorporated by reference therein as of the date of such filing, being
hereinafter called the "Final Supplemented Prospectus."
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder, and as of such time of filing,
when read together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
2
of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are filed with the
Commission, will comply in all material respects with the applicable provisions
of the 1934 Act and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use in the Final
Supplemented Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the caption "Description of the Series I Senior
Notes - Book-Entry Only Issuance -- The Depository Trust Company."
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments are
declared effective or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable provisions of the
1933 Act, the 1934 Act, the 1939 Act (hereinafter defined) and the General Rules
and Regulations of the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement and any amendment
thereto, and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the Company makes no
warranties or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
(collectively, the "Form T-1") under the Trust Indenture Act of 1939, as amended
(the "1939 Act"), (B) statements or omissions made in the Registration Statement
or the Final Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters expressly
for use therein or (C) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series I 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.
3
(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,
4
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) 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 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
99.750% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes shall be
made at the offices of Troutman Sanders LLP, Bank of America Plaza, 600
Peachtree Street, N.E., Atlanta, Georgia at 10:00 A.M., Atlanta time, on May 8,
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 Underwriters and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by wire transfer in
federal funds at the Closing Date against delivery of the Senior Notes to the
Underwriters.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriters not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
5
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally filed
and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company is advised thereof, it
will advise the Underwriters orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution of any
proceedings therefor, of which the Company shall have received notice, and will
use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Company will deliver to the
Underwriters sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) 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 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
6
prospectus in connection with the sale of any Senior Notes after the expiration
of the period specified in the preceding sentence, the Company, upon the request
of such Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
1934 Act and the rules and regulations thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing copies
thereof prior to such filing to the Underwriters and 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
Underwriters may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the 1933 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) 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).
(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 Underwriters
of such filing and to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement, including
but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
7
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 Underwriters, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the Company
unless within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect that such
order contains an unacceptable provision).
(c) On the Closing Date the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II.
8
(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 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 Underwriters shall have received a certificate of the President or
any Vice President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(5) On the Closing Date, the Underwriters 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 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
9
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
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Senior
Notes as herein contemplated shall be satisfactory in form and substance to
the Underwriters and 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 Underwriters, shall materially impair the
marketability of the Senior Notes.
10
(8) The Company shall have performed its obligations when and as
provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
------------------------------------------------------
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------------------
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933
Act, 1934 Act or otherwise, and to reimburse any such Underwriter and such
controlling person or persons, if any, for any legal or other expenses
incurred by them in connection with defending any actions, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Final Supplemented Prospectus or, if the Company shall
furnish to the Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the 1934 Act which
are incorporated 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 the Underwriters for use therein and
11
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company shall have
furnished any amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling such Underwriter)
on account of any losses, claims, damages, liabilities or actions arising
from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item
12 of Form S-3), as the same may then be amended or supplemented, shall not
have been sent or given by or on behalf of such Underwriter to such person
with or prior to the written confirmation of the sale involved and the
untrue statement or alleged untrue statement or omission or alleged
omission was corrected in the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus as supplemented or amended at the time of
such confirmation. Each Underwriter agrees, within ten days after the
receipt by it of notice of the commencement of any action in respect of
which indemnity may be sought by it, or by any person controlling it, from
the Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the omission
of such Underwriter so to notify the Company of any such action shall not
release the Company from any liability which it may have to such
Underwriter or to such controlling person otherwise than on account of the
indemnity agreement contained in this Section 7. In case any such action
shall be brought against an Underwriter or any such person controlling such
Underwriter and such Underwriter shall notify the Company of the
commencement thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof, at its own expense.
In case the Company elects to direct such defense and select such counsel,
any Underwriter or controlling person shall have the right to employ its
own counsel, but, in any such case, the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person
unless the employment of such counsel has been authorized in writing by the
Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of
the indemnified party from all liability arising out of such action or
claim and (ii) does not include any statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action
or claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify
and hold harmless the Company, its directors and such of its officers who
have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act to the same extent and upon the same terms as
the indemnity agreement of the Company set forth in Section 7(a) hereof,
but only with respect to alleged untrue statements or omissions made in the
12
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 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 Underwriters may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally
suspended, (ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the Commission or
by the New York Stock Exchange, (iii) a general banking moratorium shall
have been declared by federal or New York State authorities, or (iv) there
shall have occurred any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by the United
States Congress or any other substantial national or international calamity
or emergency affecting the United States, in any such case provided for in
clauses (i) through (iv) with the result that, in the reasonable judgement
of the Underwriters, the marketability of the Senior Notes shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant
to subsection (a) above or because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to perform
its obligations under this Agreement, then in any such case, the Company
will reimburse the Underwriters for the reasonable fees and disbursements
of 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 ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail on the Closing Date to
purchase the Senior Notes that it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
13
arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the non-defaulting Underwriters shall
not have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed
10% of the Senior Notes, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the 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 non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed
or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Salomon Smith Barney Inc., Seven World
Trade Center, New York, New York 10048, Attention: Syndication Department;
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 the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
14
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
SALOMON SMITH BARNEY INC.
On behalf of the Underwriters
named in Schedule I hereto
By:___________________________
Title:
SCHEDULE I
Principal Amount of
NAME OF UNDERWRITER Senior Notes
Salomon Smith Barney Inc. $72,000,000
Banc One Capital Markets, Inc. 9,000,000
Blaylock & Partners, L.P. 9,000,000
TOTAL $90,000,000
Schedule II
[Letterhead of TROUTMAN SANDERS LLP]
________ __, 2001
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
GEORGIA POWER COMPANY
Series I ____ % Senior Notes due May 8, 2003
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 $90,000,000
aggregate principal amount of its Series I ___% Senior Notes due May 8, 2003
(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 Ninth
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 you (the "Underwriters") (the "Underwriting Agreement").
This opinion is being delivered to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. ____________________________)
pertaining to the Notes and certain other securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus of the Company dated ___________, 2001 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 December 31, 2000,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended
____________ and the Current Reports on Form 8-K of the Company dated _________
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements."
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by 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
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 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 _____, 2001,
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) 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 Series I 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
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series I ____% Senior Notes
due May 8, 2003
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 Ninth
Supplemental Indenture dated as of May 8, 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
Salomon Smith Barney Inc.
Banc One Capital Markets, Inc.
Blaylock & Partners, L.P.
c/o Salomon Smith Barney Inc.
Seven World Trade Center
New York, NY 10048
GEORGIA POWER COMPANY
Series I ____ % Senior Notes
due May 8, 2003
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Georgia Power Company (the "Company") of $___,000,000
of its Series I ____% Senior Notes due May 8, 2003 (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 Ninth 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, among the Company and the Underwriters (the "Underwriting Agreement").
This opinion is being delivered to you pursuant to Section 5(c)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos.
_______________________________) pertaining to the Notes (the "Registration
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated _____, 2001, as supplemented by a final prospectus
supplement relating to the Notes dated ______, 2001, 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, 2000, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended _________, and the Current Reports on Form 8-K of
the Company dated __________ (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of 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 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) 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 Series I 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