EXHIBIT 1
$145,000,000 Series A 6 7/8 % Senior Public Income Notes
due December 31, 2047
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
January 21, 1998
Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
The Robinson-Humphrey Company, LLC
As Representatives of the Several Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Georgia Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $145,000,000 aggregate principal amount of the
Series A 6 7/8% Senior Public Income Notes due December 31, 2047 (the "Senior
Notes") set forth in Schedule I.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representatives deem
advisable after this Agreement has been executed and delivered. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"), and a first supplemental indenture 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.
REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
each Underwriter as follows:
(a) A registration statement on Form S-3, as amended (File Nos.
333-43895, 333-43895-01, 333-43895-02 and 333-43895-03), 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 you, and to you for each of the other
Underwriters, has been declared effective by the Commission in such
form (except that copies of the registration statement, as amended, and
any post-effective amendment delivered to you for each of the other
Underwriters need not include exhibits but shall include all documents
incorporated by reference therein); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus, 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; the Prospectus
as supplemented by a preliminary prospectus supplement dated January
15, 1998 relating to the Senior Notes, including any documents
incorporated by reference therein as of such date, being hereinafter
called the "Preliminary Supplemented Prospectus"; and the Prospectus as
amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance
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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 any 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 an Underwriter
through you expressly for use in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus; or (B) any information
set forth in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus under the caption "Description of the Series A
Senior Notes - Book-Entry-Only Issuance -- The Depository Trust
Company".
(c) The Preliminary Supplemented Prospectus, at the time of filing
thereof, complied in all material respects with the applicable
provisions of the 1933 Act and the rules and regulations of the
Commission thereunder and did 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.
(d) The Registration Statement, the Prospectus and, to the extent not
used to confirm sales of the Senior Notes, the Preliminary Supplemented
Prospectus, comply, and the Final Supplemented Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when any such post-effective amendments are declared
effective or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 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
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date as to the Registration Statement and any amendment thereto, (ii)
as of the filing date thereof as to the Preliminary Supplemented
Prospectus, and (iii) as of the 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, the Preliminary Supplemented Prospectus, or
the Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
expressly for use therein or (C) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Description of the Series A Senior Notes
-Book-Entry Only Issuance -- The Depository Trust Company".
(e) 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.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(g) 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.
(h) This Agreement has been duly authorized, executed and delivered
by the Company.
(i) 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
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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.
(j) 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.
(k) 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.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and regulations
thereunder; (B) such as may be required under the Public Utility
Holding Company Act of 1935, as amended (the "1935 Act"); (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.
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SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
principal amount of Senior Notes set forth in Schedule I opposite the name of
such Underwriter (plus any additional amount of Senior Notes that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof) at a price equal to 96.85% of the principal amount thereof;
except that such price will be increased to 99% of the principal amount of the
Senior Notes sold to certain institutions.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Troutman Sanders LLP, NationsBank Plaza,
600 Peachtree Street, N.E., Atlanta, Georgia at 10:00 A.M., New York time, on
January 27, 1998 (unless postponed in accordance with the provisions of Section
10) or such other time, place or date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the Company by
wire transfer in federal funds at the Closing Date against delivery of the
Senior Notes to the Representatives for the respective accounts of the
Underwriters. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the principal amount of the Senior Notes which it has agreed to
purchase. The Representatives, individually and not as Representatives of the
Underwriters, may (but shall not be obligated to) make payment of the principal
amount of the Senior Notes to be purchased by any Underwriter whose payment has
not been received by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
COVENANTS OF THE COMPANY. The Company covenants with each Underwriter 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
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made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representatives orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Underwriters sufficient conformed
copies of the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case without exhibits)
for distribution to each Underwriter and, from time to time, as many
copies of the Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Preliminary Supplemented Prospectus and
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 or
dealer, any event relating to or affecting the Company, or of which the
Company shall be advised in writing by the Underwriters, shall occur,
which in the opinion of the Company or of Underwriters' counsel should
be set forth in a supplement to or an amendment of the Preliminary
Supplemented Prospectus or Final Supplemented Prospectus, as the case
may be, in order to make the Preliminary Supplemented Prospectus or
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 Preliminary
Supplemented Prospectus or 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 Preliminary
Supplemented Prospectus or Final Supplemented Prospectus which will
supplement or amend the Preliminary Supplemented Prospectus or 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 Preliminary Supplemented
Prospectus or Final Supplemented Prospectus is delivered, not
misleading or which will effect any other necessary compliance. In case
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any Underwriter is required to deliver a prospectus in connection with
the sale of any Senior Notes after the expiration of the period
specified in the preceding sentence, the Company, upon the request of
such Underwriter, will furnish to such Underwriter, at the expense of
such Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the Company
will continue to prepare and file with the Commission on a timely basis
all documents or amendments required under the 1934 Act and the rules
and regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies thereof
prior to such filing to the Representatives and 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 Representatives may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the rules and
regulations under the 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) The Company will use its best efforts to effect the listing of the
Senior Notes on the New York Stock Exchange.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representatives' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representatives of such filing and to confirm such advice in
writing.
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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 to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Senior
Notes under securities laws in accordance with the provisions of Section
3(c) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto and of the Prospectus, the
Preliminary Supplemented Prospectus, the Final Supplemented Prospectus, and
any amendments or supplements thereto, (vi) the printing and delivery to
the Underwriters of copies of any blue sky survey, (vii) the fee of the
National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture
and the Senior Notes, (ix) any fees payable in connection with the rating
of the Senior Notes, (x) the fees and expenses incurred in connection with
the listing of the Senior Notes on the New York Stock Exchange, (xi) the
cost and charges of any transfer agent or registrar, and (xii) 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.
CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Senior Notes are subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the
Preliminary Supplemented Prospectus or 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
9
heretofore entered, copies of which have heretofore been delivered to
the Representatives, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Troutman Sanders
LLP, counsel for the Company, substantially in the form attached hereto
as Schedule II.
(2) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore, counsel to the Trustee, substantially in the form attached
hereto as Schedule III.
(3) The opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, counsel for the Underwriters, substantially in the form
attached hereto as Schedule IV.
(4) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, and the Representatives shall have
received a certificate of the President or any Vice President of the
Company, and dated as of the Closing Date, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force
and effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to the
Closing Date, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to the knowledge of the Company,
threatened by the Commission.
(5) On the Closing Date, the Representatives 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
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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, as of a date subsequent to the date
of those incorporated in the Prospectus; and (iii) making inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters regarding such unaudited financial statements or
any specified unaudited amounts derived therefrom (it being understood
that the foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they would
not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Arthur Andersen LLP
make no representations as to the sufficiency of such procedures for
the Underwriters' purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any,
incorporated in the Prospectus, for them to be in conformity with
generally accepted accounting principles; (2) such unaudited condensed
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act as it
applies to Form 10-Q and the related published rules and regulations
thereunder; (3) the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges and
Earnings to Fixed Charges Plus Preferred Dividends Requirements
(Pre-Income Tax Basis) set forth in the 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 the Registration
Statement; (4) as of a specified date not more than five business days
prior to the date of delivery of such letter, there has been any change
in the capital stock or long-term debt of the Company or any decrease
in net assets as compared with amounts shown in the latest audited
balance sheet incorporated 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,
Income Before Interest Charges and Net Income After Dividends Preferred
Stock and the unaudited Ratios of Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis) for any period
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.
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(6) On the Closing Date, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Senior Notes as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Representatives and Dewey Ballantine LLP, counsel for the Underwriters.
(7) On the Closing Date, the Senior Notes shall have been
approved for listing on the New York Stock Exchange upon notice of
issuance.
(8) That no amendment or supplement to the Registration
Statement, the Preliminary Supplemented Prospectus 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 any
Underwriter or Underwriters) which, in the reasonable judgment of the
Representatives, shall materially impair the marketability of the
Senior Notes.
(9) 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 Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
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.
12
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 the Underwriters and such controlling
person or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus or, if the Company
shall furnish to the Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus,
or the Final Supplemented Prospectus as so amended or supplemented, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue statement
or alleged untrue statement or omission or alleged omission which was made in
such Registration Statement, Preliminary Prospectus, Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by, or
through the Representatives on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus, or the Final Supplemented
Prospectus, if the Company shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Senior Notes to any person
if a copy of the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus (exclusive of
documents incorporated therein by reference pursuant to Item 12 of Form S-3), as
the same may then be amended or supplemented, shall not have been sent or given
by or on behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the Preliminary
Prospectus, the Prospectus, the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days after the receipt by it
of notice of the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against the Underwriters or any such person
13
controlling such Underwriters 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 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 other Underwriter and each
person, if any, who controls the Company or any such other Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
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, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representatives on behalf of, such
Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
14
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by
notice to the Company, at any time at or prior to the Closing Date if (i)
trading in securities on the New York Stock Exchange shall have been generally
suspended, (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 Representatives, the
marketability of the Senior Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representatives pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters, severally, 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 Representatives shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10%
of the Senior Notes, 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.
15
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
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 you, c/o Smith Barney Inc., 388 Greenwich Street, New York, New
York 10013, Attention: Syndicate Department, with a copy to Smith Barney
Inc., 388 Greenwich Street, New York, New York 10013, Attention: Brad Gans,
Esq.; notices to the Company shall be delivered 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: Charles N. Eldred.
PARTIES. This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Section 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters and the Company and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Senior Notes from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
GOVERN ING 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.
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.
16
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
SMITH BARNEY INC.
A.G. EDWARDS & SONS, INC.
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
THE ROBINSON-HUMPHREY COMPANY, LLC
By: SMITH BARNEY INC.
By:______________________,
Title
As Representatives of the other Underwriters named in Schedule I hereto.
SCHEDULE I
Principal Amount of Series A
NAME OF UNDERWRITER 6 7/8 % Senior Public Income
Notes
Smith Barney Inc. $ 15,193,750
A.G. Edwards & Sons, Inc. 15,181,250
Goldman, Sachs & Co. 15,181,250
Lehman Brothers Inc. 15,181,250
Morgan Stanley & Co. Incorporated 15,181,250
PaineWebber Incorporated 15,181,250
Prudential Securities Incorporated 15,181,250
The Robinson-Humphrey Company, LLC 15,181,250
Robert W. Baird & Co. Incorporated 1,512,500
Bear, Stearns & Co. Inc. 1,512,500
Donaldson, Lufkin & Jenrette Securities Corporation 1,512,500
Edward D. Jones & Co., L.P. 1,512,500
EVEREN Securities, Inc. 1,512,500
Interstate/Johnson Lane Corporation 1,512,500
J.C. Bradford & Co. 1,512,500
Morgan Keegan & Company, Inc. 1,512,500
Regions Investment Company, Inc. 1,512,500
SouthTrust Securities, Inc. 1,512,500
Sterne, Agee & Leach, Inc. 1,512,500
Cowen & Company 300,000
Craigie Incorporated 300,000
Dain Bosworth Incorporated 300,000
Davenport & Co. of Virginia, Inc. 300,000
Fahnestock & Co. Inc. 300,000
Gilbraltar Securities Co. 300,000
Gruntal & Co., Incorporated 300,000
J.J.B. Hilliard, W.L. Lyons, Inc. 300,000
Janney Montgomery Scott Inc. 300,000
Legg Mason Wood Walker, Incorporated 300,000
McDonald & Company Securities, Inc. 300,000
McGinn, Smith & Co., Inc. 300,000
The Ohio Company 300,000
Olde Discount Corporation 300,000
Piper Jaffray Inc. 300,000
Pryor, McClendon, Counts & Co., Inc. 300,000
Raymond James & Associates, Inc. 300,000
Roney & Co., LLC 300,000
Muriel Siebert & Co., Inc. 300,000
Stephens Inc. 300,000
Tucker Anthony Incorporated 300,000
U.S. Clearing Corp. 300,000
Wheat, First Securities, Inc. 300,000
--------------
TOTAL $ 145,000,000
Schedule II
[Letterhead of Troutman Sanders LLP]
___________ __, 199_
Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
The Robinson-Humphrey Company, LLC
As Representatives of the Several Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
GEORGIA POWER COMPANY
Series A 6 7/8 % SENIOR PUBLIC INCOME NOTES DUE DECEMBER 31, 2047
Dear Sirs:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) the Company's issuance of $145,000,000
aggregate principal amount of its Series A 6 7/8 % Senior Public Income Notes
due December 31, 2047 (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 supplemented and amended by the First Supplemental
Indenture dated as of January 1, 1998 (collectively, the "Indenture"); and (ii)
the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated _______, 1998, among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representatives (the "Underwriting Agreement"). This opinion is being delivered
to you as Representatives pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-43895, 333-43895-01,
333-43895-02 and 333-43895-03) pertaining to the Notes (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
1
the prospectus dated ________________, 1998 as supplemented by a final
prospectus supplement dated __________, 199_ (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 __________________,
199_, 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.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
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 organized and is validly existing and in
good standing as a corporation 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 the sale of the Notes; the issuance and the 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,
2
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; 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 (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". 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 other counsel for the Company and with
representatives of Arthur Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the 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
3
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement therein 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 A 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 such State
and the federal law of the United States and, to the extent set forth herein,
the law 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
4
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
The Robinson-Humphrey Company, LLC
As Representatives of the Several Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Georgia Power Company
241 Ralph McGill Boulevard, N.E.
Atlanta, Georgia 30308-3374
Georgia Power Company
Series A 6 7/8 % Senior Public Income Notes due December 31,
2047
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 (the "Original Indenture"), between Georgia Power Company (the "Company")
and the Bank, as Trustee, and (b) the First Supplemental Indenture dated as of
January ___, 1998 (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.
1
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 does 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
2
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 199_
Smith Barney Inc.
A.G. Edwards & Sons, Inc.
Goldman, Sachs & Co.
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
The Robinson-Humphrey Company, LLC
As Representatives of the Several Underwriters
c/o Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
GEORGIA POWER COMPANY
Series A 6 7/8 % Senior Public Income Notes due December 31,
2047
Ladies and Gentlemen:
We have represented you in connection with (i) the Company's
issuance of $145,000,000 of its Series A 6 7/8% Senior Public Income Notes (the
"Notes") pursuant to a Senior Note Indenture dated as of January 1, 1998, by and
between the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as
supplemented and amended by the First Supplemental Indenture dated as of January
__, 1998 (collectively, the "Indenture"); and (ii) the purchase by you of the
Notes pursuant to the terms of an Underwriting Agreement dated January 21, 1998,
among the Company and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representatives (the "Underwriting
Agreement"). This opinion is being delivered to you as Representatives 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 (Nos. 333-43895, 333-43895-01,
333-43895-02 and 333-43895-03) pertaining to the Notes (the "Registration
1
Statement"), filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated _______, 1998, as supplemented by a final prospectus
supplement dated ________, 1998, which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended ________________, 199_, the Quarterly Reports on Form 10-Q of the Company
for the quarters ended _________ 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
laws 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.
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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 ________, 1998, 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
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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 A 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 opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP