SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 5, 1997
GEORGIA POWER COMPANY
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(Exact name of registrant as specified in its charter)
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Georgia 1-6468 58-0257110
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
333 Piedmont Avenue, N.E., Atlanta, Georgia 30308
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 526-6526
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N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On June 5, 1997, Georgia Power Company (the "Company") and
Georgia Power Capital Trust III (the "Trust") entered into an Underwriting
Agreement covering the issue and sale by the Trust of 7,570,000 7.75% Cumulative
Quarterly Income Preferred Securities (liquidation amount $25 per Preferred
Security). Said Preferred Securities were registered under the Securities Act of
1933, as amended, pursuant to the registration statement (Registration Statement
Nos. 333-28189 and 333-28189-01) of the Company and the Trust.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated June 5, 1997, among the Company,
the Trust and Goldman, Sachs & Co.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: June 10, 1997 GEORGIA POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
$189,250,000
Preferred Securities
GEORGIA POWER CAPITAL TRUST III
(a Delaware Statutory Business Trust)
7.75% Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
June 5, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Georgia Power Capital Trust III (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
(ss.) 3801 et seq.), and Georgia Power Company, a Georgia corporation (the
"Company" and, together with the Trust, the "Offerors"), confirm their agreement
(the "Agreement") with you and each of the other Underwriters named in Schedule
I hereto (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
you are acting as representative (in such capacity, you shall hereinafter be
referred to as the "Representative"), with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of 7.75% Cumulative Quarterly Income Preferred Securities
(liquidation amount $25 per preferred security) of the Trust ("Preferred
Securities") set forth in Schedule I. The Preferred Securities will be
guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant to the
Preferred Securities Guarantee Agreement (the "Guarantee Agreement"), dated as
of June 1, 1997, between the Company and The Chase Manhattan Bank, as trustee
(the "Guarantee Trustee"). The Preferred Securities and the related Guarantee
are referred to herein as the "Securities."
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The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase the $195,103,100
aggregate principal amount of Series C 7.75% Junior Subordinated Notes (the
"Junior Subordinated Notes") to be issued by the Company. The Preferred
Securities and the Common Securities will be issued pursuant to the Amended and
Restated Trust Agreement, dated as of June 1, 1997 (the "Trust Agreement"),
among the Company, as Depositor, Judy M. Anderson and Wayne Boston (the
"Administrative Trustees"), Chase Manhattan Bank Delaware, a Delaware banking
corporation (the "Delaware Trustee") and The Chase Manhattan Bank, a New York
banking corporation (the "Property Trustee" and, together with the Delaware
Trustee and the Administrative Trustees, the "Trustees"), as trustees, and the
holders from time to time of undivided beneficial interests in the assets of the
Trust. The Junior Subordinated Notes will be issued pursuant to an indenture,
dated as of June 1, 1997 (the "Base Indenture"), between the Company and The
Chase Manhattan Bank, as trustee (the "Debt Trustee"), and a first supplemental
indenture to the Base Indenture, dated as of June 11, 1997 (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors
jointly and severally represent and warrant to each Underwriter as follows:
(a) A registration statement on Form S-3, as amended (File
Nos. 333-28189 and 333-28189-01), in respect of the Preferred
Securities, the Guarantee and the Junior Subordinated Notes 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
it may have been amended through the time the same first became
effective, including the financial statements, the documents
incorporated or deemed incorporated therein by reference, pursuant to
Item 12 of Form S-3 under the 1933 Act, the exhibits thereto and the
information deemed to be part thereof pursuant to Rule 430A(b) of the
rules and regulations of the Commission under the 1933 Act, being
herein called the "Registration Statement", the prospectus included in
the Registration Statement when the same became
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effective that omits the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act, being herein called the "Preliminary
Prospectus", and the prospectus, including the price and terms of the
offering, the interest rate, maturity date and certain other
information filed with the Commission in accordance with Rule 430A and
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the 1933 Act, including all documents then incorporated or deemed
to have been incorporated therein by reference, being herein called the
"Prospectus." The Registration Statement has been declared effective by
the Commission and no stop order suspending the effectiveness of the
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 reference herein to the 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 the 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 the 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.
(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
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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 neither the Trust nor the Company makes any 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 Trust or the Company by an Underwriter
through you expressly for use in the Preliminary Prospectus or the
Prospectus; or (B) any information set forth in the Preliminary
Prospectus or the Prospectus under the caption "Book-Entry-Only
Issuance -- The Depository Trust Company".
(c) The Registration Statement, the Preliminary Prospectus and
the Prospectus in all material respects, in form and substance, with
the applicable provisions of the 1933 Act, the 1934 Act, the Trust
Indenture Act of 1939, as amended (the "1939 Act") and the rules and
regulations of the Commission thereunder and neither the Registration
Statement nor the Prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that
neither the Company nor the Trust makes any 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 1939 Act, (B) statements
or omissions made in the Registration Statement or the Prospectus in
reliance upon and in conformity with information furnished in writing
to the Trust or the Company by an Underwriter expressly for use therein
or (C) any information set forth in the Prospectus under the caption
"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 Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the
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business, properties or financial condition of the
Company.
(f) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust.
(g) The Company has been duly incorporated 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, to enter into and perform
its obligations under this Agreement, the Trust Agreement, the
Indenture and the Guarantee Agreement and to purchase, own, and hold
the Common Securities issued by the Trust and to issue and deliver the
Junior Subordinated Notes and the Guarantee.
(h) The Trust has been duly created and is validly existing
and in good standing as a business trust under the Delaware Act with
the power and authority to own property and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement and the Trust
Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus;
the Trust is and will be classified for United States federal income
tax purposes as a grantor trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a consolidated
subsidiary of the Company pursuant to generally accepted accounting
principles.
(i) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and the Prospectus, will be validly issued and (subject to
the terms of the Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the
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Trust and will conform in all material respects to all statements
relating thereto contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and, on the Closing Date (as defined herein), all of the issued and
outstanding Common Securities of the Trust will be directly owned by
the Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(j) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(k) The Trust Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and
delivered by the Company and the Administrative Trustees, and assuming
due authorization, execution and delivery of the Trust Agreement by the
Delaware Trustee and the Property Trustee, the Trust Agreement will, on
the Closing Date, be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the Company and the
Administrative Trustees 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") and will conform in all material
respects to all statements relating thereto in the Prospectus; and, on
the Closing Date, the Trust Agreement will have been duly qualified
under the 1939 Act.
(l) The Guarantee Agreement 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 Guarantee Agreement by the Guarantee Trustee, the
Guarantee Agreement 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 the Enforceability Exceptions, and each of the
Guarantee and the Guarantee Agreement will conform in all material
respects to all statements relating thereto contained in the
Prospectus; and, on the Closing Date, the Guarantee Agreement will have
been duly qualified under the 1939 Act.
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(m) The Preferred Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the Trust
Agreement) fully paid and non-assessable undivided beneficial interests
in the Trust, will be entitled to the benefits of the Trust Agreement
and will conform in all material respects to all statements relating
thereto contained in the Prospectus; the issuance of the Preferred
Securities is not subject to preemptive or other similar rights;
(subject to the terms of the Trust Agreement) holders of Preferred
Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit.
(n) 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 Debt 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 the Enforceability
Exceptions; the Indenture will conform in all material respects to all
statements relating thereto contained in the Prospectus; and, on the
Closing Date, the Indenture will have been duly qualified under the
1939 Act.
(o) The issuance and delivery of the Junior Subordinated Notes
have been duly authorized by the Company and, on the Closing Date, the
Junior Subordinated 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 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 Prospectus.
(p) The Company's obligations under the Guarantee (i) are
subordinate and junior in right of payment to all liabilities of the
Company, except those obligations or liabilities made pari passu or
subordinate by their terms, (ii) are pari passu with the preferred
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stock issued by the Company and (iii) are senior to all
common stock of the Company.
(q) The Junior Subordinated Notes are subordinated and junior
in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of the Company.
(r) Each of the Administrative Trustees of the Trust is an
officer of the Company and has been duly authorized by the Company to
execute and deliver the Trust Agreement.
(s) Neither the Trust nor the Company nor any of the Company's
other subsidiaries is and, after giving effect to the offering and sale
of the Preferred Securities, will be an "investment company" or an
entity "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(t) The execution, delivery and performance by the Offerors of
this Agreement, the Trust Agreement, the Preferred Securities, the
Common Securities, the Indenture, the Junior Subordinated Notes, the
Guarantee Agreement and the Guarantee and the consummation by the
Offerors of the transactions contemplated herein and therein and
compliance by the Offerors with their respective obligations hereunder
and thereunder shall have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors and do not and
will not result in any violation of the charter or bylaws of the
Company, or the Trust Agreement or related Certificate of Trust 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 Trust or the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Trust or the Company is a party or by which
either of them may be bound or to which any of their properties may be
subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Trust or
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
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having jurisdiction over the Trust or the Company, or
any of their respective properties.
(u) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions 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
Trust Agreement, the Guarantee Agreement and 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 UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in Schedule II hereto, the number of Preferred
Securities set forth in Schedule I opposite the name of such Underwriter, plus
any additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date (as defined below) to the Representative, for
the accounts of the several Underwriters, a commission per Preferred Security as
set forth on Schedule II for the Preferred Securities to be delivered by the
Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall
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be made at the offices of Troutman Sanders LLP, 600 Peachtree Street, N.E.,
Atlanta, Georgia at 10:00 A.M., New York time, on June 11, 1997 (unless
postponed in accordance with the provisions of Section 10) or such other time,
place or date as shall be agreed upon by the Representative, the Trust and the
Company (such time and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Trust by wire transfer in federal
funds at the Closing Date, against delivery to the Representative for the
respective accounts of the Underwriters of certificates for the Preferred
Securities to be purchased by them. Certificates for the Preferred Securities
shall be in such denominations and registered in such names as the
Representative may request in writing at least two business days before the
Closing Date. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Preferred Securities which it has agreed
to purchase. The Representative, individually and not as Representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Preferred Securities to be purchased by any Underwriter whose
check has not been received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representative not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors
jointly and severally covenants with each Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will
deliver to the Underwriters conformed copies of the Registration
Statement as originally filed and of all amendments thereto, heretofore
or hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the
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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 Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration Statement the
Preliminary Prospectus and the 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
Preliminary Prospectus and the Prospectus as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act.
(b) The Offerors will furnish the Underwriters with copies of
each amendment and supplement to the Preliminary Prospectus and the
Prospectus relating to the offering of the Preferred Securities 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 Preferred Securities 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 Prospectus
or the Prospectus, as the case may be, in order to make the Preliminary
Prospectus or the 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
Prospectus or the 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 Preferred Securities 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 Prospectus or the Prospectus which will
supplement or amend the Preliminary Prospectus or the 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 Prospectus or the Prospectus is
delivered, not misleading or which will effect any other necessary
compliance. In case any Underwriter is required to
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deliver a prospectus in connection with the sale of any Preferred
Securities 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 Prospectus, complying with Section
10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and
file with the Commission on a timely basis all documents or amendments
required under the 1934 Act and the rules and regulations thereunder;
provided, that the Company shall not file such documents or amendments
without also furnishing copies thereof prior to such filing to the
Representative and Dewey Ballantine.
(c) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Preferred Securities and, to the extent
required or advisable, the Guarantee and the Junior Subordinated Notes,
for offering and sale under the applicable securities laws of such
states and the other jurisdictions of the United States as the
Representative may designate; provided, however, that neither of the
Offerors shall 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 Offerors will use best efforts to effect the listing
of the Preferred Securities on the New York Stock Exchange; if the
Preferred Securities are exchanged for Junior Subordinated Notes, the
Company will use its best efforts to effect the listing of the Junior
Subordinated Notes on any exchange on which the Preferred Securities
are then listed.
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(f) During a period of 15 days from the date of this
Agreement, neither the Trust nor the Company will, without the
Representative's prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose
of, any Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred Securities or the Junior
Subordinated Notes or any debt securities substantially similar to the
Junior Subordinated Notes or equity securities substantially similar to
the Preferred Securities (except for the Junior Subordinated Notes and
the Preferred Securities 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 Prospectus with the Commission and to advise the
Representative of such filing and to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of each Offeror's 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 Preferred Securities to the Underwriters, (iii) the fees and disbursements
of the Company's and the Trust's counsel and accountants, (iv) the qualification
of the Preferred Securities and, to the extent required or advisable, the
Guarantee and the Junior Subordinated 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 Preliminary
Prospectus, the 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 Debt Trustee, including the fees
and disbursements of counsel for the Debt Trustee in connection with the
Indenture and the Junior Subordinated Notes, (ix) the fees and expenses of the
Delaware Trustee, the Property Trustee and the Guarantee Trustee, including the
fees and disbursements of counsel for the Delaware Trustee in connection with
the Trust Agreement and the related Certificate of Trust, (x) the fees and
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<PAGE>
disbursements of Delaware counsel to the Trust, (xi) any fees payable in
connection with the rating of the Preferred Securities and Junior Subordinated
Notes, (xii) the fees and expenses incurred in connection with the listing of
the Preferred Securities and, if applicable, the Junior Subordinated Notes on
the New York Stock Exchange, (xiii) the cost and charges of any transfer agent
or registrar and (xiv) the cost of qualifying the Preferred Securities 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 Preferred Securities, including fees and disbursements of
their counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Preferred
Securities 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 Prospectus or the Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Preliminary
Prospectus or the Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424.
(b) Orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Representative, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Representative shall
have received:
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<PAGE>
(1) The opinion, dated the Closing Date, of Troutman
Sanders LLP, counsel for the Company, substantially in the form
attached hereto as Schedule III.
(2) The opinion, dated the Closing Date, of Richards,
Layton & Finger, Delaware counsel to the Trust, substantially in the
form attached hereto as Schedule IV.
(3) The opinion, dated the Closing Date, of Richards,
Layton & Finger, Delaware counsel to Chase Manhattan Bank Delaware, as
Delaware Trustee under the Trust Agreement, substantially in the form
attached hereto as Schedule V.
(4) The opinion, dated the Closing Date, of Cravath,
Swaine & Moore, counsel to the Property Trustee, the Guarantee Trustee
and the Debt Trustee, substantially in the form attached hereto as
Schedule VI.
(5) The favorable opinion, dated as of the Closing
Date, of Dewey Ballantine, counsel for the Underwriters, substantially
in the form attached hereto as Schedule VII.
(6) 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 Prospectus,
any material adverse change in the business, properties or financial
condition of the Trust or the Company, whether or not arising in the
ordinary course of business, and the Representative shall have received
a certificate of the President or any Vice President of the Company and
a certificate of the Administrative Trustees of the Trust, 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 Trust
and the Company have complied with all agreements and satisfied all
conditions on their respective parts 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.
15
<PAGE>
(7) On this Closing Date, the Representative shall
have received from Arthur Andersen LLP a letter dated the Closing Date
to the effect that: (A) they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the rules
and regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the rules and
regulations under the 1934 Act, and (C) on the basis of certain limited
procedures performed through a specified date not more than five
business days prior to the date of such letter, namely (i) reading the
minute books of the Company; (ii) performing the procedures specified
by the American Institute of Certified Public Accountants ("AICPA") for
a review of interim financial information as described in Statement on
Auditing Standards No. 71, "Interim Financial Information", on the
unaudited financial statements, if any, of the 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 Dividend Requirements
(Pre-Income Tax Basis) set forth in the Prospectus do not agree with
the amounts set forth in or derived from the unaudited
16
<PAGE>
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 and regularly scheduled
payments of capitalized lease obligations, (iv) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, or (v) are disclosed
in such letter; and (5) 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 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.
(8) 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 Preferred Securities 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
Offerors, in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and Dewey Ballantine, counsel for the
Underwriters.
(9) On the Closing Date, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
17
<PAGE>
(10) A Special Event (as defined in the
Prospectus) shall not have occurred and be continuing.
(11) That no amendment or supplement to the
Registration Statement, the Preliminary Prospectus or the Prospectus
filed subsequent to the date of this Agreement (including any filing
made by the Company pursuant to Section 13 or 14 of the Exchange Act)
shall be unsatisfactory in form to Dewey Ballantine 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 Representative, shall
materially impair the marketability of the Preferred Securities.
(12) The Company and the Trust shall have performed
their respective 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 Representative by notice to the Offerors 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 OFFERORS.
The obligations of the Offerors shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree 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,
18
<PAGE>
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Preliminary Prospectus or the Prospectus or, if the Offerors
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 the Registration Statement, the
Preliminary Prospectus, or the 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, or Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any Underwriter for use
therein and except that this indemnity with respect to the Preliminary
Prospectus or the Prospectus, if the Offerors 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 Preferred
Securities to any person if a copy of the Preliminary Prospectus or the
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 or the 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 Offerers on account of its agreement contained in this Section 7, to
notify the Offerors in writing of the commencement thereof but the omission of
such Underwriter so to notify the Offerors of any such action shall not release
the Offerors 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 controlling such Underwriters and such
Underwriter shall notify the Offerors of the commencement thereof as above
provided, the Offerors shall be entitled to participate in (and, to the extent
that they shall wish,
19
<PAGE>
including the selection of counsel, to direct) the defense thereof, at their own
expense. In case the Offerors elect 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 Offerors 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 Company agrees to indemnify the Trust against all
loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Section 7(a) hereunder.
(c) 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, the Trust and each other Underwriter
and each person, if any, who controls the Offerors 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
Offerors 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 or the Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Offerors by, or through the Representative on behalf of, such
Underwriter for use therein.
20
<PAGE>
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors 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 Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice
to the Offerors, 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 to New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the
Preferred Securities shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters
pursuant to subsection (a) above or because of any failure or refusal on the
part of the Offerors to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Offerors shall be unable
to perform their 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 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 Preferred Securities
and, upon such reimbursement, the Offerors 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 Preferred Securities that it or they are obligated to purchase under this
21
<PAGE>
Agreement (the "Defaulted Securities"), the Representative 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 Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the Preferred Securities, 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 number of Defaulted Securities exceeds 10%
of the Preferred Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Offerors shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 85 Broad Street, New
York, New York 10004, Attention: Don Hansen, Registration; notices to the
Offerors shall be directed to the Company at 333 Piedmont Avenue, N.E., Atlanta,
Georgia 30308, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the
Trust, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or
22
<PAGE>
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Trust and the Company and their respective successors and
the controlling persons and officers, directors and trustees 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
Trust and the Company and their respective successors, and said controlling
persons and officers, directors and trustees and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Preferred Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
23
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
GEORGIA POWER COMPANY
By:______________________________
Title:___________________________
GEORGIA POWER CAPITAL TRUST III
By: Georgia Power Company, as
Depositor
- ---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
By:_________________________________________
(Goldman, Sachs & Co.)
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF SECURITIES
Goldman, Sachs & Co. 670,000
A.G. Edwards & Sons, Inc. 660,000
Lehman Brothers Inc. 660,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 660,000
Morgan Stanley & Co. Incorporated 660,000
PaineWebber Incorporated 660,000
Prudential Securities Incorporated 660,000
The Robinson-Humphrey Company, Inc. 660,000
Smith Barney Inc. 660,000
Bear, Stearns & Co. Inc. 60,000
J.C. Bradford & Co. 60,000
Alex. Brown & Sons Incorporated 60,000
Donaldson, Lufkin & Jenrette Securities Corporation 60,000
EVEREN Securities, Inc. 60,000
Interstate/Johnson Lane Corporation 60,000
Legg Mason Wood Walker, Incorporated 60,000
Morgan Keegan & Company, Inc. 60,000
Oppenheimer & Co., Inc. 60,000
Regions Investment Company, Inc. 60,000
Stephens Inc. 60,000
Wheat, First Securities, Inc. 60,000
Advest, Inc. 30,000
Robert W. Baird & Co. Incorporated 30,000
Blaylock & Partners, L.P. 30,000
Cowen & Company 30,000
Craigie Incorporated 30,000
Crowell, Weedon & Co. 30,000
Dain Bosworth Incorporated 30,000
Fahnestock & Co. Inc. 30,000
First Albany Corporation 30,000
First Southwest Company 30,000
J.J.B. Hilliard, W.L. Lyons, Inc. 30,000
Janney Montgomery Scott Inc. 30,000
Kennedy, Cabot & Co. 30,000
McDonald & Company Securities, Inc. 30,000
McGinn, Smith & Co., Inc. 30,000
The Ohio Company 30,000
Olde Discount Corporation 30,000
Piper Jaffray Inc. 30,000
Principal Financial Securities, Inc. 30,000
Pryor, McClendon, Counts & Co., Inc. 30,000
Rauscher Pierce Refsnes, Inc. 30,000
Raymond James & Associates, Inc. 30,000
Roney & Co., LLC 30,000
Muriel Siebert & Co., Inc. 30,000
Sterne, Agee & Leach, Inc. 30,000
Stifel, Nicolaus & Company, Incorporated 30,000
Sutro & Co. Incorporated 30,000
Trilon International Inc. 30,000
Tucker Anthony Incorporated 30,000
U.S. Clearing Corp. 30,000
---------
7,570,000
<PAGE>
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.50 for Preferred Securities sold
to certain institutions; $.7875 for Preferred Securities sold to other
purchasers
<PAGE>
Schedule III
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
GEORGIA POWER CAPITAL TRUST III
_____% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Georgia Power Company (the
"Company") in connection with (i) its formation of Georgia Power Capital Trust
III, a Delaware statutory business trust (the "Trust"), pursuant to the amended
and restated trust agreement dated __________, 199_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the Trust's issuance and
sale of Cumulative Quarterly Income Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of $___________ of its Series C ___%
Junior Subordinated Notes (the "Notes") pursuant to a Subordinated Note
Indenture dated as of __________, 199_, by and between the Company and
____________________, as trustee, as supplemented by the First Supplemental
Indenture dated as of __________ __, 199_ (collectively, the "Indenture"); and
(v) its issuance of a guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Preferred Securities Guarantee Agreement dated as of __________,
199_ (the "Guarantee Agreement") between the Company and ___________________, as
trustee. The Preferred Securities are being sold to you today pursuant to the
terms of an Underwriting Agreement dated __________, 199_ (the "Underwriting
Agreement"), among the Company, the Trust and the underwriters named in Schedule
I thereto (the "Underwriters") for whom you are acting as Representative. This
opinion is being delivered to you as Representative pursuant to Section 5(c)(1)
thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
<PAGE>
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333- 28189 and 333-28189-01) pertaining
to the Preferred Securities (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated _______
___, 199_ filed with the Securities and Exchange Commission on __________, 199_
(the "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,
1996, 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 certificates
representing the Preferred Securities and the Notes, of which we have examined
specimens), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon 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 and as to matters of Delaware law upon the opinion dated the date
hereof rendered to you by Richards, Layton & Finger, 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
2
<PAGE>
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 delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities have been obtained; such orders are sufficient for
the issuance and delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 Debt 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 Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Debt Trustee in the manner provided in the Indenture
and delivered against payment therefor, 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
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<PAGE>
material respects to the description thereof in the
Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and 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 Guarantee Agreement 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 Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Prospectus.
7. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after giving effect to the
offering and sale of the Preferred Securities, will be an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
9. The Trust Agreement has been duly authorized, executed and delivered
by the Company, and, assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and binding obligation 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
Trust Agreement 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).
10. The statements as to matters of law and legal
conclusions contained in the Prospectus under the caption
"Certain Federal Income Tax Considerations" are correct in
all material respects.
11. To the best of our knowledge, all of the issued and outstanding
Common Securities of the Trust are directly owned by the Company, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
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12. The execution, delivery and performance by the Trust of the
Underwriting Agreement and the Trust Agreement; the issuance by the Trust of the
Preferred Securities and the Common Securities; the consummation by the Trust of
the transactions contemplated thereby; and the compliance by the Trust with its
obligations thereunder do not and will not result in any violation of the Trust
Agreement or related Certificate of Trust, 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 Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by which it may be bound
or to which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise) of the Trust),
(B) any existing applicable law, rule or regulation applicable to the Trust
(other than the securities or blue sky laws of any jurisdiction, as to which we
express no opinion) or (C) any judgment, order or decree known to us 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 Trust or any of its properties; and to the best of our
knowledge the Trust is not a party to or otherwise bound by any agreement other
than those which, or the forms of which, are exhibits (or included in exhibits)
to the Registration Statement.
13. The Common Securities have been duly authorized by the Trust
Agreement and (subject to the terms of the Trust Agreement), when issued and
delivered by the Trust to the Company against payment therefor as described in
the Prospectus, will be validly issued fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; and the issuance of the Common
Securities is not subject to preemptive or other similar rights.
14. The Preferred Securities have been duly authorized by the Trust
Agreement and (subject to the terms of the Trust Agreement), when delivered to
and paid for by the Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable undivided beneficial interests in
the assets of the Trust; the holders of the Preferred Securities will (subject
to the terms of the Trust Agreement) be entitled to the same limitation of
personal liability under Delaware law as is extended to stockholders of private
corporations for profit organized under the general corporation law of the State
of Delaware; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred
5
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Securities conform as to legal matters in all material respects to the
description thereof in the Prospectus.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 4, 5, 6, 10 and 14
above. In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with other
counsel for the Company, with representatives of Arthur Andersen LLP and with
your counsel. Based upon our examination of the Registration Statement, the
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement, the 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 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 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 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 Prospectus or the Exchange Act Documents.
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
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the United States and, to the extent set forth herein, the laws of the States of
Delaware and 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 may rely on this opinion in
giving their 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
7
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Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER]
__________ __, 199_
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
Re: Georgia Power Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Georgia Power
Company, a Georgia corporation (the "Company"), and Georgia Power Capital Trust
III, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. This opinion is being furnished to you pursuant to Section 5(c)(2)
of the Underwriting Agreement, dated __________, 199_ (the "Underwriting
Agreement"), among the Company, the Trust, Goldman, Sachs & Co. and the other
Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated _________,
____ (the "Original Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on _________, ____;
(b) The Trust Agreement of the Trust, dated as of
June 13, 1996, among the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement, dated as of
_________, 199_ (including Exhibits C and E), among the Company, the trustees of
the Trust named therein, and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (the "Trust Agreement");
(d) The Certificate of Amendment to the Original Certificate,
dated _________, 199_ (the "Certificate of Amendment"), as filed in the office
of the Secretary of State on _________, 199_ (the Original Certificate as
<PAGE>
amended by the Certificate of Amendment being hereinafter
referred to as the "Certificate").
(e) The Underwriting Agreement;
(f) The Prospectus, dated _________, 1997 (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"); and
(g) A Certificate of Good Standing for the Trust, dated
___________ __, 199_, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (g) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (g) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal
2
<PAGE>
capacity of natural persons who are parties to the documents examined by us,
(iv) except to the extent provided in paragraph 2 below, the power and authority
of each of the parties to the documents examined by us to execute and deliver,
and to perform its obligations under, such documents, (v) except to the extent
provided in paragraph 4 below, the due authorization, execution and delivery by
all parties thereto of all documents examined by us, (vi) the receipt by each
Person to whom a Trust Security is to be issued by the Trust (collectively, the
"Trust Security Holders") of a Trust Securities Certificate for such Trust
Security and the payment for the Trust Security acquired by it, in accordance
with the Trust Agreement, the Prospectus and the Prospectus Supplement, and
(vii) the issuance and sale of the Trust Securities to the Trust Security
Holders in accordance with the Trust Agreement and the Prospectus. We have not
participated in the preparation of the Prospectus.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 Del. C. ss. 3801, et seq.
(the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business
trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus, (ii) execute and deliver, and to
perform its obligations under, the Underwriting Agreement, (iii) issue and
perform its obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
3. The Trust Securities have been duly
authorized by the Trust Agreement and will be duly and
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validly issued undivided beneficial interests in the assets of the Trust.
Subject to the qualifications set forth in paragraph 6 below, the Preferred
Securities are fully paid and nonassessable undivided beneficial interests in
the assets of the Trust. Under the Business Trust Act and the Trust Agreement,
the Trust Securities are not subject to any preemptive or other similar rights.
4. Under the Business Trust Act and the Trust Agreement, the
Underwriting Agreement has been duly authorized by all necessary trust action on
the part of the Trust.
5. No authorization, approval, consent or order of any
Delaware court or Delaware governmental authority or Delaware agency is required
to be obtained by the Trust solely as a result of the issuance and sale of the
Preferred Securities.
6. The Persons to whom Preferred Securities are to be issued
by the Trust (collectively, the "Preferred Security Holders"), as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the Trust Agreement, to
(i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
7. The Trust Agreement constitutes a valid and
binding obligation of the Company, and is enforceable
against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the
Prospectus under the caption "Georgia Power Capital Trust
III" and, insofar as they contain statements of Delaware
law, such statements are fairly presented.
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<PAGE>
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification. In
addition, in connection with the opinion expressed in paragraph 7 above, to the
extent that Section 10.05 of the Trust Agreement provides that the Trust
Agreement is governed by New York law, we express no opinion concerning Section
10.05 of the Trust Agreement or the effect of Section 10.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of Troutman Sanders LLP and Dewey Ballantine relying as to matters of
Delaware law upon this opinion in connection with opinions to be rendered by
them pursuant to the Underwriting Agreement. Except as stated above, without our
prior written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
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Schedule V
[Letterhead of Richards, Layton & Finger]
__________ __, 199_
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Georgia Power Capital Trust III
c/o Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Re: Georgia Power Capital Trust III
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank Delaware, a
Delaware banking corporation ("CBD"), in connection with the formation of
Georgia Power Capital Trust III, a business trust existing under the laws of the
State of Delaware (the "Trust") pursuant to the Trust Agreement, dated
_________, 1997, by and between CBD, not in its individual capacity but solely
as trustee (the "Trustee"), and Georgia Power Company (the "Company"), as
amended and restated pursuant to an Amended and Restated Trust Agreement dated
as of __________ __, 199_, among the Company, the Trustee, the other trustees
named therein and the holders from time to time of the undivided beneficial
interests in the assets of the Trust (collectively, the "Trust Agreement"). This
opinion is being delivered to you pursuant to Section 5(c)(3) of the
Underwriting Agreement, dated ___________ __, 199_ (the "Underwriting
Agreement"), among Goldman, Sachs & Co., the several Underwriters named in
Schedule II thereto, Georgia Power Company and the Trust, pursuant to which the
$___,000,000 ___% Preferred Securities of the Trust will be sold. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the
<PAGE>
corporations or entities referred to herein as we have deemed necessary or
appropriate for the purposes of the opinions expressed herein. Moreover, as to
certain facts material to the opinions expressed herein, we have relied upon the
representations and warranties contained in the documents referred to in this
paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. CBD is duly incorporated, validly existing in good standing
as a banking corporation under the laws of the State of Delaware and has the
power and authority to execute, deliver and perform its obligations under the
Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by CBD and constitutes a legal, valid and binding obligation of CBD,
enforceable against CBD, in accordance with its terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by CBD, does not conflict with or constitute a breach
of, or default under, the charter or by-laws of CBD.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body having
jurisdiction in the premises is required under Delaware law for the execution,
delivery or performance by CBD of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and
we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of CBD (except that we express no opinion with respect
to (i) state securities or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, and the Investment Company Act of 1940, as amended), and we have not
considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
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<PAGE>
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent transfer or conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than CBD, of the Trust Agreement,
and that each of such parties has the full power, authority and legal right to
execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
CBD) on documents examined by us are genuine, that all documents submitted to us
as originals are authentic, and that all documents submitted to us as copies or
specimens conform with the originals, which facts we have not independently
verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
3
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Schedule VI
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Georgia Power Capital Trust III
c/o Georgia Power Company
333 Piedmont Avenue, N.E.
Atlanta, Georgia 30308
Georgia Power Capital Trust III
___% Cumulative Quarterly Income Preferred Securities
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the "Bank") in
connection with (a) the Subordinated Note Indenture, dated as of ________
______, 199_ (the "Original Indenture"), between Georgia Power Company (the
"Company") and the Bank, as Trustee, (b) the First Supplemental Indenture dated
as of ___________ (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of __________ ______, 199_ (the "Guarantee Agreement"),
between the Company, as Guarantor and the Bank, as Trustee, and (d) the Amended
and Restated Trust Agreement, dated as of _________ ______, 199_ (the "Trust
Agreement") among the Company, the Bank, as Property Trustee, Chase Manhattan
Bank Delaware, as Delaware Trustee, and _________________ and _______________,
as Administrative Trustees.
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, the Trust Agreement,
the Guarantee Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
<PAGE>
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, the Trust Agreement and the Guarantee Agreement, has duly
executed and delivered the Indenture, the Trust Agreement and the
Guarantee Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due authorization,
execution and delivery thereof by the other parties thereto, each of
the Indenture, the Trust Agreement and the Guarantee Agreement
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 subject, as to enforceability, to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law).
iii) the execution, delivery and performance by the
Bank of the Indenture, the Trust Agreement and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or bylaws of
the Bank.
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, the Trust Agreement or the Guarantee
Agreement or the performance by the Bank of its duties thereunder,
except such as have been obtained, taken or made.
We are admitted to practice 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 used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
2
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Schedule VII
[Letterhead of DEWEY BALLANTINE]
__________ __, 199_
Goldman, Sachs & Co., as Representative
85 Broad Street
New York, New York 10004
GEORGIA POWER CAPITAL TRUST III
____% Cumulative Quarterly Income Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Georgia Power Company
(the "Company") of Georgia Power Capital Trust III (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and restated trust agreement
dated as of __________, 199_ among the Company and the trustees named therein
(the "Trust Agreement"); (ii) the Trust's issuance and sale of Cumulative
Quarterly Income Preferred Securities evidencing approximately a 97% undivided
interest in the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of its Common Securities evidencing approximately a 3% undivided
interest in the Trust (the "Common Securities"); (iv) the Company's issuance and
sale to the Trust of $___________ of its Series C ___% Junior Subordinated Notes
(the "Notes") pursuant to a Subordinated Note Indenture dated as of __________,
199_, by and between the Company and ____________, as trustee, as supplemented
by the First Supplemental Indenture dated as of __________ __, 199_
(collectively, the "Indenture"); and (v) the Company's issuance of a guarantee
(the "Guarantee") of the Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of __________, 199_ (the "Guarantee Agreement")
between the Company and ____________________, as trustee, we have acted as
counsel to you and the other underwriters named in Schedule I (the
"Underwriters") to the Underwriting Agreement dated __________ __, 199_, among
the Company, the Trust and the Underwriters for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(5) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
<PAGE>
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333-28189 and 333-28189-01) pertaining
to the Preferred Securities (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the related prospectus dated
, filed pursuant to Rule 424(b) under the Act with the Securities and Exchange
Commission on _________, 199_, 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, 1996, 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 certificates
representing the Preferred Securities and the Notes, of which we have examined
specimens), and we have made such other and further investigations as we deemed
necessary to express the opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and the authenticity of the originals of such latter
documents.
The Trust Agreement, Indenture, Guarantee Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the State of Georgia upon the opinion of Troutman Sanders LLP dated the
date hereof and addressed to you, and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Delaware upon the opinion
of Richards, Layton & Finger, dated the date hereof and addressed to you (a form
of which is attached as Schedule IV to the Underwriting Agreement), 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
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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 delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities; the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred Securities 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 delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities 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 Debt 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 Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, 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,
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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 Prospectus.
6. The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and 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 Guarantee Agreement 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 Guarantee Agreement conforms as to
legal matters in all material respects to the description thereof in the
Prospectus.
7. Each of the Indenture, the Guarantee
Agreement and the Trust Agreement has been duly qualified
under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the
Prospectus.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Prospectus or the Exchange Act Documents and take no responsibility
therefor, except as and to the extent set forth in paragraphs 4, 5, 6 and 8
above. In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with counsel for
the Company, and with representatives of Arthur Andersen LLP. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the Prospectus and the Exchange Act Documents and our
participation in the conferences referred to above, (i) we are of the opinion
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that the Registration Statement, as of its effective date, and the 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 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 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 Prospectus or the Exchange Act Documents.
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, the federal law of the United States, and to the extent set forth
herein, the laws of the States of Delaware and 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 its
opinions pursuant to Section 5(c) of the Underwriting Agreement and Sections
102, 302 and 904 of the Indenture, insofar as such opinions relate to matters of
New York law.
Very truly yours,
DEWEY BALLANTINE
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