Exhibit 1
$60,000,000 Series I 5.25% Senior Notes
due May 8, 2003
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
May 14, 2001
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 you (the "Underwriter"), with
respect to the sale by the Company and the purchase by the Underwriter, of
$60,000,000 aggregate principal amount of the Series I 5.25% Senior Notes due
May 8, 2003 (the "Senior Notes").
The Company understands that the Underwriter proposes to make
a public offering of the Senior Notes as soon as the Underwriter deems 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, including 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 Underwriter 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 Underwriter, 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 Underwriter 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 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 Underwriter 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 Underwriter
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 Underwriter 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.
(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 Underwriter.
(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 (hereinafter defined), will have been duly executed and
delivered by the Company, and, assuming due authorization, execution
and delivery of the Indenture by the Trustee, the Indenture will, on
the Closing Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law
or in equity) (the "Enforceability Exceptions"); the Indenture will
conform in all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized
by the Company and, on the Closing Date, the Senior Notes will have
been duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment therefor as
described in the Final Supplemented Prospectus, will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions,
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
shall have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation
of the charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(k) 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 the Underwriter, and the Underwriter agrees to purchase from the Company, the
entire principal amount of Senior Notes at a price equal to 99.750% of the
principal amount thereof, plus accrued interest from May 8, 2001 to the Closing
Date.
(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 17, 2001 or
such other time, place or date as shall be agreed upon by the Underwriter 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
Underwriter.
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
Underwriter shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriter 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 Underwriter
as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriter 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 Underwriter 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 Underwriter 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 Underwriter
and, from time to time, as many copies of the Prospectus and the Final
Supplemented Prospectus as the Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriter 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 Underwriter 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 the
Underwriter, any event relating to or affecting the Company, or of
which the Company shall be advised in writing by the Underwriter, shall
occur, which in the opinion of the Company or of Underwriter's 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 Underwriter to suspend solicitation of
purchases of the Senior Notes and (ii) at its expense, make any such
filing or prepare and furnish to the Underwriter 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 the 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 the Underwriter, will furnish to the
Underwriter, at the expense of the 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 Underwriter and
Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, 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 Underwriter 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 Underwriter's 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 Underwriter 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 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 Underwriter 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 Underwriter 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 Underwriter 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
Underwriter shall pay all other expenses incurred by them in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter 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
Underwriter or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Underwriter, are deemed acceptable to the Underwriter and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriter 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 Underwriter 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
I.
(2) The opinion, dated the Closing Date, of Cravath, Swaine & Moore,
counsel to the Trustee, substantially in the form attached hereto as
Schedule II.
(3) The opinion, dated the Closing Date, of Dewey Ballantine LLP, counsel
for the Underwriter, substantially in the form attached hereto as
Schedule III.
(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 Underwriter 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 Underwriter 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 to the sufficiency of such procedures for
the Underwriter's 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 Underwriter 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 Underwriter and Dewey
Ballantine LLP, counsel for the Underwriter.
(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
Underwriter) which, in the reasonable judgment of the Underwriter,
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 Underwriter 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
Underwriter. 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 the Underwriter and each
person, if any, who controls 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
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 Underwriter 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 Underwriter for use
therein and except that this indemnity with respect to the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus, if the Company
shall have furnished any amendment or supplement thereto, shall not inure to the
benefit of the 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. The 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
the 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, the 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) The 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 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 the Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter 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 Underwriter, the marketability of the Senior Notes shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriter
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 Underwriter 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 Underwriter 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. 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 Underwriter 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 11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriter, 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 Underwriter 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 Underwriter 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 Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 12. 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 13. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriter 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.
By:___________________________
Title:
Schedule I
[Letterhead of TROUTMAN SANDERS LLP]
________ __, 2001
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
$___,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, including 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"),
between the Company and you (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 you pursuant to the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of 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 II
[Letterhead of Cravath, Swaine & Moore]
_______ __, 2001
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
Ladies and Gentlemen:
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 III
[Letterhead of DEWEY BALLANTINE LLP]
________ __, 2001
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 "Underwriter") 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,
including 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,
between the Company and the Underwriter (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 Underwriter 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