Exhibit
1.4
$500,000,000
Series
2010C 4.75% Senior Notes
due
September 1, 2040
GEORGIA
POWER COMPANY
UNDERWRITING
AGREEMENT
August
26, 2010
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Scotia
Capital (USA) Inc.
One
Liberty Plaza
165
Broadway – 25
th
Floor
New York,
New York 10006
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
as Representatives of the Several
Underwriters named on Schedule I hereto
Ladies
and Gentlemen:
Georgia
Power Company, a Georgia corporation (the “Company”), confirms its agreement
(the “Agreement”) with you and the other Underwriters named in Schedule I hereto
(collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for whom you are
acting as representatives (in such capacity you shall hereinafter be referred to
as the “Representatives”), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $500,000,000
aggregate principal amount of the Series 2010C 4.75% Senior Notes due September
1, 2040 (the “Senior Notes”) as set forth in Schedule I hereto.
The
Company understands that the Underwriters propose to make a public offering of
the Senior Notes as soon as the Representatives deem advisable after this
Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the “Base
Indenture”), by and between the Company and The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as trustee (the “Trustee”), as heretofore supplemented and amended and
as to be further supplemented and amended by a forty-second supplemental
indenture, dated as of August 31, 2010, to the Base Indenture relating to the
Senior Notes (the “Supplemental Indenture” and, together with the Base Indenture
and any other amendments or supplements thereto, the “Indenture”), between the
Company and the Trustee.
SECTION
1.
REPRESENTATIONS AND
WARRANTIES
. The Company represents and warrants to the
Underwriters as follows:
(a)
A
registration statement on Form S-3 (File No. 333-165133) in respect of the
Senior Notes and certain other securities has been prepared and filed in
accordance with the provisions of the Securities Act of 1933, as amended (the
“1933 Act”), with the Securities and Exchange Commission (the “Commission”);
such registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Underwriters, became
effective upon filing with the Commission in such form (except that copies of
the registration statement and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all documents
incorporated by reference therein); and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering has been initiated or, to the best knowledge of the
Company, threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement, included in such
registration statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the 1933 Act, being
hereinafter called a “Preliminary Prospectus”); such registration statement as
used with respect to the Senior Notes, including the information deemed a part
thereof pursuant to Rule 430B(f)(1) under the 1933 Act on the date of such
registration statement’s effectiveness for purposes of Section 11 of the 1933
Act, as such Section applies to the Company and the Underwriters for the Senior
Notes pursuant to Rule 430B(f)(2) under the 1933 Act (the “Effective Date”),
including the exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the Effective Date, being hereinafter
called the “Registration Statement”; the base prospectus relating to the Senior
Notes and certain other securities of the Company, in the form in which it has
most recently been filed with the Commission on or prior to the date of this
Agreement relating to the Senior Notes, being hereinafter called the “Basic
Prospectus”; the Basic Prospectus as amended and supplemented by a preliminary
prospectus supplement dated August 26, 2010 relating to the Senior Notes which
has been filed with the Commission pursuant to Rule 424(b) under the 1933 Act,
as it may be further amended and supplemented immediately prior to the
Applicable Time (as hereinafter defined) is hereinafter called the “Pricing
Prospectus”; the Basic Prospectus as amended or supplemented in final form,
including by a prospectus supplement relating to the Senior Notes in the form in
which it is filed with the Commission, pursuant to Rule 424(b) under the 1933
Act in accordance with Section 4(e) hereof is hereinafter called the “Final
Supplemented Prospectus”; any reference herein to any Preliminary Prospectus,
the Basic Prospectus, the Pricing Prospectus or the Final Supplemented
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, Basic Prospectus, Pricing Prospectus or Final Supplemented
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus, Basic Prospectus,
Pricing Prospectus or Final Supplemented Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the “1934 Act”), and
incorporated by reference in such Preliminary Prospectus, Basic Prospectus,
Pricing Prospectus or Final Supplemented 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.
For purposes of this Agreement, the
“Applicable Time” is 2:45 p.m. (New York Time) on the date of this Agreement;
the documents listed in Schedule II, taken together and attached hereto, are
collectively referred to as the “Pricing Disclosure Package.”
(b)
The
documents incorporated by reference in the Registration Statement or the Pricing
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 Pricing Prospectus and any Permitted Free Writing
Prospectus (as defined in Section 3(a) hereof), 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 Final
Supplemented Prospectus or any further amendment or supplement thereto, when
such documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and
the rules
and regulations of the Commission thereunder and, when read together with the
Final Supplemented Prospectus as it otherwise may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or representation to the
Underwriters with respect to: (A) any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter through the Representatives expressly for use in the Pricing
Prospectus, any Permitted Free Writing Prospectus and the Final Supplemented
Prospectus; or (B) any information set forth in the Pricing Prospectus or the
Final Supplemented Prospectus under the caption “Description of the Series 2010C
Senior Notes ─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
(c)
The
Registration Statement and the Final Supplemented Prospectus comply, and any
further amendments or supplements thereto, when any such amendments become
effective or supplements are filed with the Commission, as the case may be, will
comply, in all material respects with the applicable provisions of the 1933 Act,
the 1934 Act, the 1939 Act (as hereinafter defined) and the General Rules and
Regulations of the Commission thereunder and the Registration Statement, the
Pricing Disclosure Package and the Final Supplemented Prospectus do not and will
not, (i) as of the Effective Date as to the Registration Statement and any
amendment thereto, (ii) as of the Applicable Time as to the Pricing Disclosure
Package and (iii) as of the date of the Final Supplemented Prospectus as to the
Final Supplemented Prospectus or as of the date when any supplement is filed as
to the Final Supplemented Prospectus as further supplemented or as of the
Closing Date as to the Final Supplemented Prospectus or the Final Supplemented
Prospectus as it may be further supplemented as provided above, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in the light of the
circumstances under which they were made, not misleading in the case of the
Pricing Disclosure Package and the Final Supplemented Prospectus as further
supplemented; except that the Company makes no warranties or representations
with respect to (A) that part of the Registration Statement which shall
constitute the Statement of Eligibility (Form T-1) under the Trust Indenture Act
of 1939, as amended (the “1939 Act”), (B) any statements or omissions made in a
Permitted Free Writing Prospectus, the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives expressly for use therein; or (C) any
information set forth in the Pricing Prospectus or the Final Supplemented
Prospectus under the caption “Description of the Series 2010C Senior Notes ─
Book-Entry Only Issuance ─ The Depository Trust Company.”
(d)
Each
Permitted Free Writing Prospectus listed on Schedule II hereto does not include
anything that conflicts with the information contained in the Registration
Statement, the Pricing Prospectus or the Final Supplemented Prospectus and each
such Permitted Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, did not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
Company makes no warranty or representation to the Underwriters with respect to
any statement or omissions made in a Permitted Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by any Underwriter through the Representatives expressly for use
therein.
(e)
With
respect to the Registration Statement, (i) the Registration Statement is an
“automatic shelf registration statement” (as defined in Rule 405 under the 1933
Act), (ii) the Company has not received from the Commission any notice pursuant
to Rule 401(g)(2) of the 1933 Act objecting to the use of the automatic shelf
registration statement and (iii) the conditions for use of Form S-3, as set
forth in the General Instructions thereof, have been satisfied.
(f)
(A) At
the time of filing of the Registration Statement, (B) at the time of the most
recent amendment to the Registration Statement for the purposes of complying
with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or
15(d) of the 1934 Act or form of prospectus) and (C) at the time the Company or
any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the 1933 Act) made any offer relating to the Senior Notes in
reliance on the exemption of Rule 163 under the 1933 Act, the Company was a
“well-known seasoned issuer” (as defined in Rule 405 under the 1933
Act).
(g)
At the
determination date for purposes of the Senior Notes within the meaning of Rule
164(h) under the 1933 Act, the Company was not an “ineligible issuer” as defined
in Rule 405 under the 1933 Act.
(h)
Since the
respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, except as otherwise stated therein, there has been
no material adverse change in the business, properties or financial condition of
the Company, whether or not arising in the ordinary course of
business.
(i)
The
Company is a corporation duly organized and existing under the laws of the State
of Georgia and has due corporate authority to carry on the public utility
business in which it is engaged and to own and operate the properties used by it
in such business, to enter into and perform its obligations under this Agreement
and the Indenture and to issue and sell the Senior Notes to the
Underwriters.
(j)
This
Agreement has been duly authorized, executed and delivered by the
Company.
(k)
The
Indenture has been duly authorized by the Company and, on the Closing Date (as
hereinafter defined), will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors’ rights
generally or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the “Enforceability
Exceptions”); the Indenture will conform in all material respects to all
statements relating thereto contained in the Pricing Disclosure Package and the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will have
been duly qualified under the 1939 Act.
(l)
The
issuance and delivery of the Senior Notes have been duly authorized by the
Company and, on the Closing Date, the Senior Notes will have been duly executed
by the Company and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as described in this Agreement,
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 Pricing Disclosure Package and the Final Supplemented
Prospectus.
(m)
The
execution, delivery and performance by the Company of this Agreement, the
Indenture and the Senior Notes and the consummation by the Company of the
transactions contemplated herein and therein and compliance by the Company with
its obligations hereunder and thereunder shall have been duly authorized by all
necessary corporate action on the part of the Company and do not and will not
result in any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company under
(A) any contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may be
bound or to which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the aggregate, be
materially adverse to the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company, or any of its properties.
(n)
No
authorization, approval, consent or order of any court or governmental authority
or agency is necessary in connection with the issuance and sale by the Company
of the Senior Notes or the transactions by the Company contemplated in this
Agreement, except (A) such as may be required under the 1933 Act or the rules
and regulations thereunder; (B) such as may be required under the Federal Power
Act; (C) the qualification of the Indenture under the 1939 Act; (D) the approval
of the Georgia Public Service Commission (the “Georgia Commission”); and (E)
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or “blue sky” laws.
(o)
The
financial statements incorporated by reference in the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, together with the
related schedules and notes, present fairly, in all material respects, the
financial position, results of operations and cash flows of the Company as of
and for the dates indicated; said financial statements have been prepared in
conformity with accounting principles generally accepted in the United States
(“GAAP”) applied on a consistent basis (except that the unaudited financial
statements incorporated by reference in the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus may be subject to normal
year-end adjustments) throughout the periods involved and necessarily include
amounts that are based on the best estimates and judgments of
management. The selected financial data and the summary financial
information included in the Pricing Prospectus and the Final Supplemented
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited and unaudited financial
statements incorporated by reference in the Registration Statement.
SECTION
2.
SALE AND DELIVERY TO THE
UNDERWRITERS; CLOSING
.
(a)
On the
basis of the representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, the principal amount of the Senior
Notes set forth in Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of Section 11
hereof) at a price equal to 98.161% of the principal amount
thereof.
(b)
Payment
of the purchase price and delivery of certificates for the Senior Notes shall be
made at the offices of Dewey & LeBoeuf LLP, 1301 Avenue of the Americas, New
York, New York 10019 at 10:00 A.M., New York Time, on August 31, 2010 (unless
postponed in accordance with the provisions of Section 11 hereof) or such other
time, place or date as shall be agreed upon by the Representatives and the
Company (such time and date of payment and delivery being herein called the
“Closing Date”). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of the Senior
Notes to Barclays Capital Inc. on behalf of all of the
Underwriters. It is understood that each Underwriter has
authorized
Barclays Capital Inc., for each Underwriter’s account, to accept delivery of,
receipt for, and make payment of, the principal amount of the Senior Notes which
each Underwriter has agreed to purchase. Barclays Capital Inc.,
individually and not as a representative of the Underwriters, may (but shall not
be obligated to) make payment of the principal amount of the Senior Notes to be
purchased by any Underwriter whose payment has not been received by the Closing
Date, but such payment shall not relieve such Underwriter from its obligations
hereunder.
The
delivery of the Senior Notes shall be made in fully registered form, registered
in the name of CEDE & CO., to the offices of The Depository Trust Company in
New York, New York or its designee, and the Underwriters shall accept such
delivery.
The
certificate(s) for the Senior Notes will be made available for examination by
the Representatives not later than 12:00 Noon, New York time, on the last
business day prior to the Closing Date.
SECTION
3.
FREE WRITING
PROSPECTUSES
.
(a)
The
Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the
Senior Notes that would constitute a “free writing prospectus” as defined in
Rule 405 under the 1933 Act, other than a Permitted Free Writing Prospectus;
each Underwriter, severally and not jointly, represents and agrees that, without
the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Senior Notes that would constitute a
“free writing prospectus” as defined in Rule 405 under the 1933 Act, other than
a Permitted Free Writing Prospectus or a free writing prospectus that is not
required to be filed by the Company pursuant to Rule 433 under the 1933 Act or
one or more free writing prospectuses through customary Bloomberg distribution
that do not contain substantive changes from or additions to the information
contained in the free writing prospectus, dated the date hereof, filed pursuant
to Rule 433(d) under the 1933 Act relating to the Senior Notes (the “Pricing
Term Sheet”); any such free writing prospectus (which shall include the Pricing
Term Sheet), the use of which has been consented to by the Company and the
Representatives, is listed on Schedule II and herein called a “Permitted Free
Writing Prospectus.”
(b)
The
Company agrees to prepare the Pricing Term Sheet, which shall be previously
approved by the Representatives, and to file the Pricing Term Sheet pursuant to
Rule 433(d) under the 1933 Act within the time period prescribed by such
Rule.
(c)
The
Company and the Underwriters have complied and will comply with the requirements
of Rule 433 under the 1933 Act applicable to any free writing prospectus,
including timely Commission filing where required and legending.
(d)
The
Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Final Supplemented
Prospectus or include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of
the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter a free writing
prospectus or other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any
statements or omissions in a Permitted Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter through the Representatives, expressly for use
therein.
(e)
The
Company agrees that if there occurs an event or development as a result of which
the Pricing Disclosure Package would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing, not
misleading, the Company will notify the Representatives so that any use of the
Pricing Disclosure Package may cease until it is amended or
supplemented.
SECTION
4.
COVENANTS OF THE
COMPANY
. The Company covenants with the Underwriters as
follows:
(a)
The
Company, on or prior to the Closing Date, will deliver to the Underwriters
conformed copies of the Registration Statement as originally filed and of all
amendments thereto, heretofore or hereafter made, including any post-effective
amendment (in each case including all exhibits filed therewith, and including
unsigned copies of each consent and certificate included therein or filed as an
exhibit thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representatives orally of the issuance of any stop order under the 1933 Act
with respect to the Registration Statement, or the institution of any
proceedings for that purpose or pursuant to Section 8A of the 1933 Act against
the Company or related to the offering, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if issued. The
Company will deliver to the Representatives sufficient conformed copies of the
Registration Statement, the Basic Prospectus, the Pricing Prospectus and the
Final Supplemented Prospectus and of all supplements and amendments thereto (in
each case without exhibits) for distribution to the Underwriters and, from time
to time, as many copies of the Basic Prospectus, the Pricing Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act.
(b)
The
Company will furnish the Underwriters with written or electronic copies of each
amendment and supplement to the Final Supplemented Prospectus relating to the
offering of the Senior Notes in such quantities as the Underwriters may from
time to time reasonably request. If, during the period (not exceeding
nine months) when the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the 1933 Act) shall be required by law in
connection with the sale of any Senior Notes by an Underwriter, any event
relating to or affecting the Company, or of which the Company shall be advised
in writing by the Representatives, shall occur, which in the opinion of the
Company or of Underwriters’ counsel should be set forth in a supplement to or an
amendment of the Final Supplemented Prospectus, as the case may be, in order to
make the Final Supplemented Prospectus not misleading in the light of the
circumstances when it (or in lieu thereof, the notice referred to in Rule 173(a)
under the 1933 Act) is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by reference
in the Final Supplemented Prospectus in order to comply with the 1933 Act or the
1934 Act, the Company forthwith will (i) notify the Underwriters to suspend
solicitation of purchases of the Senior Notes and (ii) at its expense, make any
such filing or prepare and furnish to the Underwriters a reasonable number of
copies of a supplement or supplements or an amendment or amendments to the Final
Supplemented Prospectus which will supplement or amend the Final Supplemented
Prospectus so that, as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances when the
Final Supplemented Prospectus (or in lieu thereof, the notice referred to in
Rule 173(a) under the 1933 Act) is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is
required to deliver a prospectus in connection with the sale of any Senior Notes
after the expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such Underwriter,
at the expense of such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all documents
or amendments required under the 1934 Act and the rules and regulations
thereunder; provided, that the Company shall not file such documents or
amendments without also furnishing copies thereof prior to such filing to the
Representatives and Dewey & LeBoeuf LLP.
(c)
The
Company will endeavor, in cooperation with the Underwriters, to qualify the
Senior Notes for offering and sale under the applicable securities laws of such
states and the other jurisdictions of the United States as the Representatives
may designate; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual reports
or to comply with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d)
The
Company will make generally available to its security holders as soon as
practicable but not later than 45 days after the close of the period covered
thereby, an earnings statement of the Company (in form complying with the
provisions of Rule 158 of the rules and regulations under the 1933 Act) covering
a twelve-month period beginning not later than the first day of the Company’s
fiscal quarter next following the “effective date” (as defined in Rule 158) of
the Registration Statement.
(e)
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, the Company will file the Final
Supplemented Prospectus, in a form approved by the Representatives, such
approval not to be unreasonably withheld, with the Commission and will advise
the Representatives of such filing and will confirm such advice in
writing. Furthermore, the Company will make any other required
filings pursuant to Rule 433(d)(1) of the 1933 Act within the time required by
such Rule.
(f)
During a
period of 15 days from the date of this Agreement, the Company will not, without
the Representatives’ prior written consent, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, any Senior
Notes or any security convertible into or exchangeable into or exercisable for
the Senior Notes or any debt securities substantially similar to the Senior
Notes (except for the Senior Notes issued pursuant to this Agreement and a
potential series of senior notes with a scheduled maturity of up to five
years). The Representatives agree that commercial paper or other debt
securities with scheduled maturities of less than one year are not subject to
this Section 4(f).
(g)
If at any
time when Senior Notes remain unsold by the Underwriters, the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act or
otherwise ceases to be eligible to use the automatic shelf registration
statement form, the Company will (i) promptly notify the Representatives, (ii)
promptly file a new registration statement or post-effective amendment on the
proper form relating to the Senior Notes, in a form satisfactory to the
Representatives, (iii) use its reasonable best efforts to cause such
registration statement or post-effective amendment to be declared effective and
(iv) promptly notify the Representatives of such effectiveness. The
Company will take all other reasonable action necessary or appropriate to permit
the public offering and sale of the Senior Notes to continue as contemplated in
the registration statement that was the subject of the Rule 401(g)(2) notice or
for which the Company has otherwise become ineligible. References
herein to the Registration Statement shall include such new registration
statement or post-effective amendment, as the case may be.
SECTION
5.
PAYMENT OF
EXPENSES
. The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, including but not limited
to, the expenses of (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificate(s) for the Senior Notes, (iii) the fees and
disbursements of the Company’s counsel and accountants, (iv) the qualification
of the Senior Notes
under
securities laws in accordance with the provisions of Section 4(c) hereof,
including filing fees and the reasonable fees and disbursements of Dewey &
LeBoeuf LLP, 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 Pricing Prospectus, any Permitted Free
Writing Prospectus, the Final Supplemented Prospectus, and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the Financial Industry
Regulatory Authority, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses of
the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Senior Notes, (ix) any fees payable in
connection with the rating of the Senior Notes, (x) the cost and charges of any
transfer agent or registrar, and (xi) the cost of qualifying the Senior Notes
with The Depository Trust Company.
Except as
otherwise provided in Section 10 hereof, the Underwriters shall pay all other
expenses incurred by them in connection with their offering of the Senior Notes
including fees and disbursements of their counsel, Dewey & LeBoeuf
LLP.
SECTION
6.
CONDITIONS OF UNDERWRITERS’
OBLIGATIONS
. The obligations of the Underwriters to purchase
and pay for the Senior Notes are subject to the following
conditions:
(a)
No stop
order suspending the effectiveness of the Registration Statement shall be in
effect on the Closing Date and no proceedings for that purpose or pursuant to
Section 8A of the 1933 Act against the Company or related to the offering shall
be pending before, or to the knowledge of the Company threatened by, the
Commission on such date. If filing of the Pricing Prospectus or the
Final Supplemented Prospectus, or any supplement thereto, is required pursuant
to Rule 424, the Pricing Prospectus and the Final Supplemented Prospectus, and
any such supplement, as applicable, shall have been filed in the manner and
within the time period required by Rule 424. The pricing term sheet
contemplated by Section 3(b) hereto, and any other material required to be filed
by the Company pursuant to Rule 433(d) under the 1933 Act, shall have been filed
by the Company with the Commission within the applicable time periods prescribed
for such filings by Rule 433.
(b)
Any
required orders of the Georgia Commission and the Commission permitting the
transactions contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain no
provision unacceptable to the Underwriters or the Company (but all provisions of
such order or orders heretofore entered, copies of which have heretofore been
delivered to the Representatives, are deemed acceptable to the Underwriters and
the
Company
and all provisions of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24 hours after
receiving a copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an unacceptable
provision).
(c)
On the
Closing Date, the Representatives shall have received:
(1)
The
opinion, dated the Closing Date, of Troutman Sanders LLP, counsel for the
Company, substantially in the form attached hereto as Schedule III.
(2)
The
opinion, dated the Closing Date, of Emmet, Marvin & Martin, LLP, counsel to
the Trustee, substantially in the form attached hereto as Schedule
IV.
(3)
The
opinion, dated the Closing Date, of Dewey & LeBoeuf LLP, counsel for the
Underwriters, substantially in the form attached hereto as Schedule
V.
(d)
At the
Closing Date, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement
and the Final Supplemented Prospectus, any material adverse change in the
business, properties or financial condition of the Company, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or any Vice President of the Company,
and dated as of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(e)
The
Representatives shall have received on the date hereof and shall receive on the
Closing Date from Deloitte & Touche LLP, a letter or letters addressed to
the Representatives (which may refer to letters previously delivered to the
Representatives) dated the respective dates of delivery thereof to the effect
that: (A) they are an independent registered public accounting firm
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 Registration Statement and
the Pricing Prospectus or the Registration Statement, the Pricing Prospectus and
the Final Supplemented Prospectus, as applicable, 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
three 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
standards of the Public Company Accounting Oversight Board (United States) for a
review of interim financial statement information as described in Statement on
Auditing Standards No. 100, “Interim Financial Information”, on the unaudited
financial statements, if any, of the Company incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, as applicable, and
on the latest available unaudited financial statements of the Company, if any,
for any calendar quarter subsequent to the date of those incorporated by
reference in the Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable; 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 Deloitte &
Touche 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 by reference in
the Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, for them to be in conformity with GAAP; (2) such unaudited condensed
financial statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to Form 10-Q
and the related published rules and regulations thereunder; (3) the unaudited
amounts for Operating Revenues, Earnings Before Income Taxes and Net Income
After Dividends on Preferred and Preference Stock and the unaudited Ratio of
Earnings to Fixed Charges set forth in the Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing Prospectus and the
Final Supplemented Prospectus, as applicable, do not agree with the amounts set
forth in or derived from the unaudited financial statements for the same period
included or incorporated by reference in the Registration Statement; (4) as of a
specified date not more than three 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 unaudited balance sheet incorporated by reference in the Registration
Statement and the Pricing Prospectus or the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus, as applicable, except in each
case for changes or decreases which (i) the Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing Prospectus and the
Final Supplemented Prospectus, as
applicable,
disclose have occurred or may occur, (ii) are occasioned by the declaration of
dividends, (iii) are occasioned by draw-downs under existing pollution control
financing arrangements, (iv) are occasioned by regularly scheduled payments of
capitalized lease obligations, (v) are occasioned by the purchase or redemption
of bonds or stock to satisfy mandatory or optional redemption provisions
relating thereto, (vi) are occasioned by the reclassification of current
maturities of long-term debt, or (vii) are disclosed in such letter; and (5) the
unaudited amounts for Operating Revenues, Earnings Before Income Taxes and Net
Income After Dividends on Preferred and Preference Stock and the unaudited Ratio
of Earnings to Fixed Charges for any calendar quarter subsequent to those set
forth in (3) above, which, if available, shall be set forth in such letter, do
not agree with the amounts set forth in or derived from the unaudited financial
statements for the same period or were not determined on a basis substantially
consistent with that of the corresponding audited amounts or ratios included or
incorporated by reference in the Registration Statement and the Pricing
Prospectus or the Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable
.
(f)
On the
Closing Date, counsel for the Underwriters shall have been furnished with such
documents and opinions as it may reasonably require for the purpose of enabling
it to pass upon the issuance and sale of the Senior Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Senior Notes as herein contemplated shall be
satisfactory in form and substance to the Representatives and Dewey &
LeBoeuf LLP, counsel for the Underwriters.
(g)
No
amendment or supplement to the Registration Statement or the Final Supplemented
Prospectus filed subsequent to the date of this Agreement (including any filing
made by the Company pursuant to Section 13 or 14 of the 1934 Act) shall be
unsatisfactory in form to Dewey & LeBoeuf LLP or shall contain information
(other than with respect to an amendment or supplement relating solely to the
activity of the Underwriters) which, in the reasonable judgment of the
Representatives, shall materially impair the marketability of the Senior
Notes.
(h)
The
Company shall have performed its obligations when and as provided under this
Agreement.
If any
condition specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time prior to the Closing Date,
and such termination shall be without liability of any party to any other party
except as provided in Sections 5, 8 and 10(b) hereof.
SECTION
7.
CONDITIONS OF THE
OBLIGATIONS OF THE COMPANY
. The obligations of the Company
shall be subject to the conditions set forth in the first sentence of Section
6(a) and in Section 6(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 Representatives. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 5, 8 and 10(b) hereof.
SECTION
8.
INDEMNIFICATION
.
(a)
The
Company agrees to indemnify and hold harmless each of the Underwriters and each
person, if any, who controls any such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Basic Prospectus, the Pricing Prospectus, any Permitted Free
Writing Prospectus or the Final Supplemented Prospectus or, if the Company shall
furnish to the Underwriters any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus, the Final Supplemented Prospectus as so
amended or supplemented, or in any free writing prospectus used by the Company
other than a Permitted Free Writing Prospectus, 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, Basic Prospectus, Pricing Prospectus, Permitted Free
Writing Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives for use therein. Each
Underwriter agrees, within ten days after the receipt by it of notice of the
commencement of any action in respect of which indemnity may be sought by it, or
by any person controlling it, from the Company on account of its agreement
contained in this Section 8, to notify the Company in writing of the
commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section
8. In case any such action shall be brought against an Underwriter or
any such person controlling such Underwriter and such Underwriter shall notify
the Company of the commencement thereof as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof, at its own
expense. In case the Company elects to direct such defense and select
such counsel, any Underwriter or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and expenses of such
counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel has been authorized in writing by the Company in
connection with defending such action. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b)
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 8(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus or the Final Supplemented Prospectus, or such
documents as amended or supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter through the
Representatives for use therein.
SECTION
9.
REPRESENTATIONS, WARRANTIES
AND AGREEMENTS TO SURVIVE DELIVERY
. All representations,
warranties and agreements contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by, or on behalf of
the Company and shall survive delivery of the Senior Notes to the
Underwriters.
SECTION
10.
TERMINATION OF
AGREEMENT
.
(a)
The
Representatives may terminate this Agreement, by notice to the Company, at any
time at or prior to the Closing Date if (i) trading in securities on the New
York Stock Exchange shall have been generally suspended or there shall have been
a material disruption in settlement in securities generally, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other
substantial
national or international calamity, crisis or emergency (including, without
limitation, acts of terrorism) affecting the United States, in any such case
provided for in clauses (i) through (iv) with the result that, in the reasonable
judgment of the Representatives, the offering, sale or delivery of the Senior
Notes on the terms and in the manner contemplated by this Agreement and the
Final Supplemented Prospectus shall have been materially impaired.
(b) If
this Agreement shall be terminated by the Representatives pursuant to subsection
(a) above or because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, then in any such case, the Company will reimburse the
Underwriters for the reasonable fees and disbursements of Dewey & LeBoeuf
LLP and for the out of pocket expenses (in an amount not exceeding $10,000)
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Senior Notes and, upon such reimbursement, the Company
shall be absolved from any further liability hereunder, except as provided in
Sections 5 and 8 hereof.
SECTION
11.
DEFAULT BY AN
UNDERWRITER
. If an Underwriter shall fail on the Closing Date
to purchase the Senior Notes that it is obligated to purchase under this
Agreement (the “Defaulted Securities”), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for the non-defaulting
Underwriters, or any other underwriters to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a)
if the
principal amount of Defaulted Securities does not exceed 10% of the Senior
Notes, the non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b)
if the
principal amount of Defaulted Securities exceeds 10% of the Senior Notes, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone the Closing Date for a period not exceeding seven days in order to
effect any required changes in the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION
12.
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 Representatives at Barclays Capital Inc., 745 Seventh Avenue, New York, New
York 10019, Attention: Syndicate Registration; Morgan Stanley &
Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention: Investment
Banking Division; Scotia Capital (USA) Inc., One Liberty Plaza, 25
th
Floor, 165 Broadway, New York, New York 10006, Attention: Debt
Capital Markets; UBS Securities LLC, 677 Washington Boulevard, Stamford,
Connecticut 06901, Attention: Fixed Income Syndicate, Telephone (203)
719-1088, Fax No. (203) 719-0495; Wells Fargo Securities, LLC, 301 South College
Street, Charlotte, North Carolina 28288, Attention: Transaction
Management; notices to the Company shall be mailed to 241 Ralph McGill
Boulevard, N.E., Atlanta, Georgia 30308-3374, Attention: Corporate Secretary,
with a copy to Southern Company Services, Inc., 30 Ivan Allen Jr. Boulevard,
N.W., Atlanta, Georgia 30308, Attention: Earl C. Long.
SECTION
13.
PARTIES
. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Section 8 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all
conditions and provisions hereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the
Underwriters shall be deemed to be a successor by reason merely of such
purchase. The Company acknowledges and agrees that in connection with
all aspects of each transaction contemplated by this Agreement, the Company and
the Underwriters have arms-length business relationships that create no
fiduciary duty on the part of any party and each expressly disclaims any
fiduciary or financial advisory relationship.
SECTION
14.
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 time.
SECTION
15.
COUNTERPARTS
. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters
and the Company in accordance with its terms.
Very
truly yours,
GEORGIA
POWER COMPANY
By:
/s/ Melissa K.
Caen
Name:
Melissa K. Caen
Title: Assistant
Secretary
CONFIRMED
AND ACCEPTED,
as of the
date first above written
BARCLAYS
CAPITAL INC.
By:
/s/ Pamela
Kendall
Name: Pamela
Kendall
Title: Director
MORGAN
STANLEY & CO. INCORPORATED
By:
/s/ Yurij
Slyz
Name: Yurij
Slyz
Title: Executive
Director
SCOTIA
CAPITAL (USA) INC.
By:
/s/ Paul
McKeown
Name: Paul
McKeown
Title: Director
UBS
SECURITIES LLC
By:
/s/ Christopher
Forshner
Name: Christopher
Forshner
Title:
Managing Director
By:
/s/ Matthew
Baldwin
Name: Matthew
Baldwin
Title:
Associate Director
WELLS
FARGO SECURITIES, LLC
By:
/s/ Carolyn
Hurley
Name: Carolyn
Hurley
Title:Director
as Representatives of the Underwriters
named in Schedule I hereto
SCHEDULE
I
|
Name of Underwriters
|
Principal Amount of Series 2010C Senior
Notes
|
|
Barclays
Capital Inc.
|
$
77,500,000
|
|
Morgan
Stanley & Co. Incorporated
|
77,500,000
|
|
Scotia
Capital (USA) Inc.
|
77,500,000
|
|
UBS
Securities LLC
|
77,500,000
|
|
Wells
Fargo Securities, LLC
|
77,500,000
|
|
Credit
Agricole Securities (USA) Inc.
|
22,500,000
|
|
Fifth
Third Securities, Inc.
|
22,500,000
|
|
Mizuho
Securities USA Inc.
|
22,500,000
|
|
Blaylock
Robert Van, LLC
|
11,250,000
|
|
Cabrera
Capital Markets, LLC
|
11,250,000
|
|
Jackson
Securities, LLC
|
11,250,000
|
|
M.R.
Beal & Company
|
11,250,000
|
|
TOTAL:
|
$500,000,000
|
SCHEDULE
II
PRICING
DISCLOSURE PACKAGE
1) Prospectus
dated March 1, 2010
2) Preliminary
Prospectus Supplement dated August 26, 2010 (which shall be deemed to include
documents incorporated by reference therein)
3) Permitted
Free Writing Prospectuses
a) the
Pricing Term Sheet
Schedule
III
[Letterhead
of TROUTMAN SANDERS LLP]
August
31, 2010
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Scotia
Capital (USA) Inc.
One
Liberty Plaza
165
Broadway – 25
th
Floor
New York,
New York 10006
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
as Representatives of the Several
Underwriters
GEORGIA
POWER COMPANY
Series
2010C 4.75% Senior Notes
due
September 1, 2040
Ladies
and Gentlemen:
We have
acted as counsel to Georgia Power Company (the “Company”) in connection with (i)
the Company’s issuance of $500,000,000 aggregate principal amount of its Series
2010C 4.75% Senior Notes due September 1, 2040 (the “Notes”) pursuant to a
Senior Note Indenture dated as of January 1, 1998, by and between the Company
and The Bank of New York Mellon (as successor to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank)), as trustee (the “Trustee”), as
heretofore supplemented and as further supplemented by the Forty-Second
Supplemental Indenture dated as of August 31, 2010 (collectively, the
“Indenture”); and (ii) the purchase by the Underwriters (as defined herein) of
the Notes pursuant to the terms of an Underwriting Agreement dated August 26,
2010 (the “Underwriting Agreement”), among the Company and the Underwriters
named in Schedule I thereto (the “Underwriters”) for whom you are acting as
representatives (the “Representatives”). This opinion is being
delivered to you as the Representatives pursuant to Section 6(c)(1) of the
Underwriting Agreement.
All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Underwriting Agreement.
In
rendering the opinions expressed below, we have examined the registration
statement on Form S-3 (File No. 333-165133) pertaining to the Notes and certain
other securities filed by the Company under the Securities Act of 1933, as
amended (the “Act”), as it became effective under the Act (the “Registration
Statement”); the Company’s prospectus dated March 1, 2010 (the “Basic
Prospectus”) as supplemented by a preliminary prospectus supplement dated August
26, 2010 (the “Pricing Prospectus”), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the “Commission”) under the Act 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, 2009, the Quarterly Reports on Form 10-Q of the Company for
the quarters ended March 31, 2010 and June 30, 2010 and the Current Reports on
Form 8-K of the Company dated March 9, 2010, May 19, 2010, May 24, 2010, July 1,
2010 (and filed July 1, 2010), July 1, 2010 (and filed July 2, 2010) and August
12, 2010 (the “Pricing Exchange Act Documents”), and a prospectus supplement
dated August 26, 2010 (together with the Basic Prospectus, the “Final
Supplemented Prospectus”), filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, which, pursuant to Form
S-3, incorporates by reference the Pricing Exchange Act Documents and the
Current Report on Form 8-K of the Company dated August 26, 2010 (the “Exchange
Act Documents”), each as filed under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”); and the Indenture. We have also
examined the free writing prospectus prepared by the Company and filed with the
Commission on August 26, 2010 pursuant to Rule 433 of the Act (the “Permitted
Free Writing Prospectus”). The documents listed in Schedule II to the
Underwriting Agreement, taken together, are collectively referred to as the
“Pricing Disclosure Package.”
In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificate representing
the Notes, of which we have examined a specimen), and we have made such other
and further investigations as we deemed necessary to express the opinions
hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter
documents.
The
Indenture and the Underwriting Agreement are herein referred to collectively as
the “Agreements.”
Based
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 & LeBoeuf LLP,
that:
1. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Georgia and has due corporate
authority to carry on the public utility business in which it is engaged, to own
and operate the properties used by it in such business and to enter into and
perform its obligations under the Agreements and the Notes.
2. The
execution, delivery and performance by the Company of the Underwriting Agreement
have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the
Company.
3. All
orders, consents or other authorizations or approvals of the Georgia Public
Service Commission and the Commission legally required for the issuance and sale
of the Notes have been obtained; such orders are sufficient for the issuance and
the sale of the Notes; the issuance and the sale of the Notes conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Georgia or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or “blue sky” laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and sale of the Notes in
accordance with the terms of the Underwriting Agreement.
4. The
Indenture has been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the qualifications
that the enforceability of the Company’s obligations under the Indenture may be
limited by bankruptcy, insolvency, reorganization, 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 Pricing
Disclosure Package and the Final Supplemented Prospectus.
5. The
Notes have been duly authorized and executed by the Company and, when
authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company’s obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
We have
not independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to the extent set
forth in paragraphs 4 and 5 above. In the course of the preparation
by the Company of the Registration Statement, the Pricing Disclosure Package,
the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with your
counsel. Based upon our examination of the Registration Statement,
the Pricing Disclosure Package, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Pricing Disclosure Package, the
Final Supplemented Prospectus and the Exchange Act Documents and our
participation in the conferences referred to above, (i) we are of the opinion
that the Registration Statement, on the Effective Date, and the Final
Supplemented Prospectus, as of August 26, 2010, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that each Exchange Act
Document, as of its date 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 (or
omitted from) the Registration Statement, the Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents, and (ii) we confirm
to you that nothing came to our attention which gives us reason to believe that
the Registration Statement, on the 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, that the Pricing Disclosure Package, as of the Applicable Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, 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 (or omitted from) the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and with respect to information set forth in the Pricing Prospectus
and the Final Supplemented Prospectus under the caption “Description of the
Series 2010C Senior Notes ─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
The
attorneys in this firm that are rendering this opinion 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, the federal law of the United States and,
to the extent set forth herein, the law of the State of New York.
This
opinion letter is rendered by us only to you and is solely for your benefit in
your capacity as Underwriters in connection with the above-described
transaction. This opinion letter is limited to the date
hereof. This opinion letter may not be used, quoted or 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 & LeBoeuf LLP may rely
on this opinion in giving its opinion pursuant to the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours
very truly,
TROUTMAN
SANDERS LLP
Schedule
IV
[Letterhead
of Emmet, Marvin & Martin LLP]
August
31, 2010
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Scotia
Capital (USA) Inc.
One
Liberty Plaza
165
Broadway – 25
th
Floor
New York,
New York 10006
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
as Representatives of the Several
Underwriters
Georgia
Power Company
241 Ralph
McGill Boulevard, N.E.
Atlanta,
Georgia 30308-3374
Georgia Power
Company
Series 2010C 4.75% Senior
Notes due September 1, 2040
Ladies
and Gentlemen:
We have
acted as counsel for The Bank of New York Mellon (as successor to JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank)) (“BNYM”), in connection
with the issuance by Georgia Power Company (the “Company”) of $500,000,000
aggregate principal amount of Series 2010C 4.75% Senior Notes due September 1,
2040 (the “Notes”). The Notes are being issued under the Senior Note
Indenture dated as of January 1, 1998 (the “Original Indenture”) between the
Company and
BNYM, as
trustee (in such capacity, the “Trustee”), as heretofore supplemented and as
further supplemented by the Forty-Second Supplemental Indenture dated as of
August 31, 2010 (the “Supplemental Indenture” and, together with the Original
Indenture, the “Indenture”) between the Company and the Trustee.
For
purposes of this opinion, we have reviewed the Indenture and such other
documents, records and papers, and satisfied ourselves as to such other matters,
as we have deemed necessary or appropriate for this opinion. As to
questions of fact material to this opinion, we have relied on certificates of
BNYM and of public officials. In such review, 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
the originals of all documents submitted to us as copies or forms and the
authenticity of the originals of such latter documents. We have
assumed that BNYM has been duly incorporated and that the Indenture has been
duly authorized, executed and delivered by the Company and constitutes the valid
and binding agreement of, and is enforceable in accordance with its terms
against, the Company.
Based
upon the foregoing and subject to the qualifications below, we are of the
opinion that:
1) BNYM
is a banking corporation validly existing under the laws of the State of New
York with corporate power and authority to enter into and perform its
obligations under the Indenture.
2) The
Supplemental Indenture has been duly authorized, executed and delivered by BNYM
and the Indenture constitutes a valid and binding agreement of BNYM enforceable
against BNYM in accordance with its terms, except as may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally and
general equitable principles (whether considered in a proceeding in equity or at
law) and by an implied covenant of reasonableness, good faith and fair
dealing.
We are
members of the Bar of the State of New York and, for purposes of this opinion,
do not hold ourselves out as experts on the laws of any jurisdiction other than
the State of New York. The opinions expressed herein are limited to
matters governed by the laws of the State of New York.
This
opinion is solely for your benefit in connection with the issuance and sale by
the Company of the Notes and may not be relied upon by you for any other
purpose, or relied upon or furnished to any other person, without our prior
written consent.
Very
truly yours,
Schedule
V
[Letterhead
of DEWEY & LEBOEUF LLP]
August
31, 2010
Barclays
Capital Inc.
745
Seventh Avenue
New York,
New York 10019
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
Scotia
Capital (USA) Inc.
One
Liberty Plaza
165
Broadway – 25
th
Floor
New York,
New York 10006
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
as Representatives of the Several
Underwriters
GEORGIA
POWER COMPANY
Series
2010C 4.75% Senior Notes
due
September 1, 2040
Ladies
and Gentlemen:
We have
represented the Underwriters (hereinafter defined) in connection with (i) the
issuance and sale by Georgia Power Company (the “Company”) of $500,000,000
aggregate principal amount of its Series 2010C 4.75% Senior Notes due September
1, 2040 (the “Notes”) pursuant to a Senior Note Indenture, dated as of January
1, 1998, by and between the Company and The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as trustee (the “Trustee”), as heretofore supplemented and as further
supplemented by the Forty-Second Supplemental Indenture, dated as of August 31,
2010 (collectively, the “Indenture”); and (ii) the purchase by the Underwriters
of the Notes pursuant to the
terms of
an Underwriting Agreement dated August 26, 2010 (the “Underwriting Agreement”),
among the Company and the Underwriters named in Schedule I thereto (the
“Underwriters”) for whom you are acting as representatives (the
“Representatives”). This opinion is being delivered to you as
Representatives pursuant to Section 6(c)(3) of the Underwriting
Agreement.
All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Underwriting Agreement.
In
rendering the opinions expressed below, we have examined the Company’s
registration statement on Form S-3 (File No. 333-165133) pertaining to the Notes
and certain other securities filed by the Company under the Securities Act of
1933, as amended (the “Act”), as it became effective under the Act (the
“Registration Statement”); the Company’s prospectus dated March 1, 2010 (the
“Basic Prospectus”) as supplemented by a preliminary prospectus supplement dated
August 26, 2010 (the “Pricing Prospectus”), filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and Exchange
Commission (the “Commission”) under the Act, 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, 2009, the Quarterly Reports on Form 10-Q of the
Company for the quarters ended March 31, 2010 and June 30, 2010 and the Current
Reports on Form 8-K of the Company dated March 9, 2010, May 19, 2010, May 24,
2010, July 1, 2010 (and filed July 1, 2010), July 1, 2010 (and filed July 2,
2010) and August 12, 2010 (collectively, the “Pricing Exchange Act Documents”),
and a prospectus supplement dated August 26, 2010 (together with the Basic
Prospectus, the “Final Supplemented Prospectus”), filed by the Company pursuant
to Rule 424(b) of the rules and regulations of the Commission under the Act,
which, pursuant to Form S-3, incorporates by reference the Pricing Exchange Act
Documents and the Current Report on Form 8-K of the Company dated August 26,
2010 (the “Exchange Act Documents”), each as filed under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”); and the Indenture. We
have also examined the free writing prospectus prepared by the Company and filed
with the Commission on August 26, 2010 pursuant to Rule 433 of the Act (the
“Permitted Free Writing Prospectus”). The documents listed in
Schedule II to the Underwriting Agreement, taken together, are collectively
referred to as the “Pricing Disclosure Package.”
In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificate representing
the Notes, of which we have examined a specimen), and we have made such other
and further investigations as we deemed necessary to express the opinions
hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter
documents.
The
Indenture and the Underwriting Agreement are herein referred to collectively as
the “Agreements.”
Based
upon the foregoing, and subject to the qualifications and limitations stated
herein, we are of the opinion, relying as aforesaid and as to all matters
covered hereby which are governed by or dependent upon the law of the State of
Georgia upon the opinion of Troutman Sanders LLP dated the date hereof and
addressed to you, that:
1. The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Georgia and has due corporate
authority to carry on the public utility business in which it is engaged, to own
and operate the properties used by it in such business and to enter into and
perform its obligations under the Agreements and the Notes.
2. The
execution, delivery and performance by the Company of the Underwriting Agreement
have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the
Company.
3. All
orders, consents or other authorizations or approvals of the Georgia Public
Service Commission and the Commission legally required for the issuance and sale
of the Notes have been obtained; such orders are sufficient for the issuance and
sale of the Notes; the issuance and sale of the Notes conform in all material
respects with the terms of such orders; and no other order, consent or other
authorization or approval of any Georgia or United States governmental body
(other than in connection or in compliance with the provisions of the securities
or “blue sky” laws of any jurisdiction, as to which we express no opinion) is
legally required for the issuance and sale of the Notes in accordance with the
terms of the Underwriting Agreement.
4. The
Indenture has been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company, enforceable
against the Company in accordance with its terms, subject to the qualifications
that the enforceability of the Company’s obligations under the Indenture may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
5. The
Notes have been duly authorized and executed by the Company and, when
authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company’s obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
6. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
We have
not independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to the extent set
forth in paragraphs 4 and 5 above. In the course of the preparation
by the Company of the Registration Statement, the Pricing Disclosure Package,
the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the
Company. Based upon our examination of the Registration Statement,
the Pricing Disclosure Package, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Pricing Disclosure Package and
the Final Supplemented Prospectus and our participation in the conferences
referred to above, (i) we are of the opinion that the Registration Statement, on
the Effective Date, and the Final Supplemented Prospectus, as of August 26,
2010, complied as to form in all material respects with the relevant
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that each Exchange Act Document, as of its date 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 (or omitted from) the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) we confirm to you that nothing came to our
attention which gives us reason to believe that the Registration Statement, on
the 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, that the Pricing
Disclosure Package, as of the Applicable Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement of a material fact or omitted, as of its date, or
omits, on the date hereof, 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 (or omitted from) the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Pricing Prospectus and the Final Supplemented Prospectus under the caption
“Description of the Series 2010C Senior Notes ─ Book-Entry Only Issuance ─ The
Depository Trust Company.”
We are
members of the State Bar of New York and we do not express any opinion herein
concerning any law other than the law of the State of New York and the federal
law of the United States and, to the extent set forth herein, the law of the
State of Georgia.
This
opinion letter is rendered by us only to you and is solely for your benefit in
your capacity as Underwriters in connection with the above
matter. This opinion letter is limited to the date
hereof. This opinion letter may not be used, quoted or 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 6 of the Underwriting
Agreement and pursuant to Sections 102, 302 and 904 of the Indenture, insofar as
such opinions relate to matters of New York law.
Very
truly yours,
DEWEY
& LEBOEUF LLP
Exhibit
4.2
GEORGIA
POWER COMPANY
TO
THE
BANK OF NEW YORK MELLON,
TRUSTEE
FORTY-SECOND
SUPPLEMENTAL INDENTURE
DATED
AS OF AUGUST 31, 2010
SERIES
2010C 4.75% SENIOR NOTES
DUE
SEPTEMBER 1, 2040
PAGE
|
ARTICLE 1
|
1
|
|
|
Series 2010C Senior
Notes
|
1
|
|
|
SECTION
101. Establishment
|
1
|
|
|
SECTION
102. Definitions
|
2
|
|
|
SECTION
103. Payment of Principal and Interest
|
3
|
|
|
SECTION
104. Denominations
|
4
|
|
|
SECTION
105. Global Securities
|
4
|
|
|
SECTION
106. Transfer
|
4
|
|
|
SECTION
107. Redemption at the Company’s Option
|
5
|
|
ARTICLE
2
|
5
|
|
|
Miscellaneous
Provisions
|
5
|
|
|
SECTION
201. Recitals by Company
|
5
|
|
|
SECTION
202. Ratification and Incorporation of Original
Indenture
|
5
|
|
|
SECTION
203. Executed in Counterparts
|
6
|
EXHIBIT
A Form
of Series 2010C Note
EXHIBIT
B Certificate
of Authentication
1
This
Table of Contents does not constitute part of the Indenture or have any bearing
upon the interpretation of any of its terms and provisions.
THIS FORTY-SECOND SUPPLEMENTAL
INDENTURE is made as of the 31st day of August, 2010, by and between GEORGIA
POWER COMPANY, a Georgia corporation, 241 Ralph McGill Boulevard, N.E., Atlanta,
Georgia 30308-3374 (the “Company”), and THE BANK OF NEW YORK MELLON, a New York
banking corporation, 101 Barclay Street, Floor 8W, New York, New
York 10286 (the “Trustee”).
W I T N E
S S E T H:
WHEREAS, the Company has heretofore
entered into a Senior Note Indenture, dated as of January 1, 1998 (the “Original
Indenture”), with The Bank of New York Mellon (as successor to JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank)), as heretofore
supplemented;
WHEREAS, the Original Indenture is
incorporated herein by this reference and the Original Indenture, as heretofore
supplemented and as further supplemented by this Forty-Second Supplemental
Indenture, is herein called the “Indenture”;
WHEREAS, under the Original Indenture,
a new series of Senior Notes may at any time be established by the Board of
Directors of the Company in accordance with the provisions of the Original
Indenture and the terms of such series may be described by a supplemental
indenture executed by the Company and the Trustee;
WHEREAS, the Company proposes to create
under the Indenture a new series of Senior Notes;
WHEREAS, additional Senior Notes of
other series hereafter established, except as may be limited in the Original
Indenture as at the time supplemented and modified, may be issued from time to
time pursuant to the Indenture as at the time supplemented and modified;
and
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Forty-Second Supplemental Indenture
and to make it a valid and binding obligation of the Company have been done or
performed.
NOW, THEREFORE, in consideration of the
agreements and obligations set forth herein and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE
1
Series
2010C Senior Notes
SECTION 101.
Establishment
. There
is hereby established a new series of Senior Notes to be issued under the
Indenture, to be designated as the Company’s Series 2010C 4.75% Senior Notes due
September 1, 2040 (the “Series 2010C Notes”).
There are to be authenticated and
delivered $500,000,000 principal amount of Series 2010C Notes, and such
principal amount of the Series 2010C Notes may be increased from time to time
pursuant to Section 301 of the Original Indenture. All Series 2010C
Notes need not be issued at the same time and such series may be reopened at any
time, without the consent of any Holder, for issuances of additional Series
2010C Notes. Any such additional Series 2010C Notes will have the
same interest rate, maturity and other terms as those initially
issued. No Series 2010C Notes shall be authenticated and delivered in
excess of the principal amount as so increased except as provided by
Sections 203, 303, 304, 907 or 1107 of the Original
Indenture. The Series 2010C Notes shall be issued in fully registered
form.
The Series 2010C Notes shall be issued
in the form of one or more Global Securities in substantially the form set out
in Exhibit A hereto. The Depositary with respect to the Series 2010C
Notes shall be The Depository Trust Company.
The form of the Trustee’s Certificate
of Authentication for the Series 2010C Notes shall be in substantially the form
set forth in Exhibit B hereto.
Each Series 2010C Note shall be dated
the date of authentication thereof and shall bear interest from the date of
original issuance thereof or from the most recent Interest Payment Date to which
interest has been paid or duly provided for.
The Series 2010C Notes will not have a
sinking fund.
SECTION 102.
Definitions
. The
following defined terms used herein shall, unless the context otherwise
requires, have the meanings specified below. Capitalized terms used
herein for which no definition is provided herein shall have the meanings set
forth in the Original Indenture.
“Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Series 2010C Notes to
be redeemed that would be utilized, at the time of selection and in accordance
with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Series 2010C
Notes.
“Comparable Treasury Price” means, with
respect to any Redemption Date, (i) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Company obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
“Independent Investment Banker” means
an independent investment banking institution of national standing appointed by
the Company.
“Interest Payment Dates” means March 1
and September 1 of each year, commencing March 1, 2011.
“Original Issue Date” means August 31,
2010.
“Reference Treasury Dealer” means a
primary United States Government securities dealer in the United States
appointed by the Company.
“Reference Treasury Dealer Quotation”
means, with respect to a Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount and quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day in New York City preceding such
Redemption Date).
“Regular Record Date” means, with
respect to each Interest Payment Date, the 15th calendar day preceding such
Interest Payment Date (whether or not a Business Day).
“Stated Maturity” means September 1,
2040.
“Treasury Yield” means, with respect to
any Redemption Date, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
SECTION 103.
Payment of Principal and
Interest
. The principal of the Series 2010C Notes shall be due
at Stated Maturity (unless earlier redeemed). The unpaid principal
amount of the Series 2010C Notes shall bear interest at the rate of 4.75% per
annum until paid or duly provided for. Interest shall be paid
semiannually in arrears on each Interest Payment Date to the Person in whose
name the Series 2010C Notes are registered at the close of business on the
Regular Record Date for such Interest Payment Date,
provided
that interest
payable at the Stated Maturity of principal or on a Redemption Date as provided
herein will be paid to the Person to whom principal is payable. Any
such interest that is not so punctually paid or duly provided for will forthwith
cease to be payable to the Holders on such Regular Record Date and may either be
paid to the Person or Persons in whose name the Series 2010C Notes are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of the Series 2010C Notes not less than ten (10) days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Series 2010C Notes shall be listed, and upon such notice as may be required
by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series
2010C Notes will include interest accrued to but excluding the respective
Interest Payment Dates. Interest payments for the Series 2010C Notes
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on
the Series 2010C Notes is not a Business Day, then payment of the interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
with the same force and effect as if made on the date the payment was originally
payable.
Payment of the principal and interest
due at the Stated Maturity or earlier redemption of the Series 2010C Notes shall
be made upon surrender of the Series 2010C Notes at the Corporate Trust Office
of the Trustee. The principal of and interest on the Series 2010C
Notes shall be paid in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts. Payments of interest (including interest on any Interest
Payment Date) will be made, subject
to such
surrender where applicable, at the option of the Company, (i) by check mailed to
the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer or other electronic transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
SECTION 104.
Denominations
. The
Series 2010C Notes may be issued in denominations of $1,000, or any integral
multiple thereof.
SECTION 105.
Global
Securities
. The Series 2010C Notes will be issued in the form
of one or more Global Securities registered in the name of the Depositary (which
shall be The Depository Trust Company) or its nominee. Except under
the limited circumstances described below, Series 2010C Notes represented by one
or more Global Securities will not be exchangeable for, and will not otherwise
be issuable as, Series 2010C Notes in definitive form. The Global
Securities described above may not be transferred except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or to a successor Depositary or its
nominee.
Owners of beneficial interests in such
a Global Security will not be considered the Holders thereof for any purpose
under the Indenture, and no Global Security representing a Series 2010C Note
shall be exchangeable, except for another Global Security of like denomination
and tenor to be registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee. The rights of Holders of such
Global Security shall be exercised only through the Depositary.
Subject to the procedures of the
Depositary, a Global Security shall be exchangeable for Series 2010C Notes
registered in the names of persons other than the Depositary or its nominee only
if (i) the Depositary notifies the Company that it is unwilling or unable to
continue as a Depositary for such Global Security and no successor Depositary
shall have been appointed by the Company, or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, at a time when the Depositary is required to be so registered
to act as such Depositary and no successor Depositary shall have been appointed
by the Company, in each case within 90 days after the Company receives such
notice or becomes aware of such cessation, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iii) there shall have occurred an Event of Default with respect to the Series
2010C Notes. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Series 2010C Notes registered in
such names as the Depositary shall direct.
SECTION 106.
Transfer
. No
service charge will be made for any transfer or exchange of Series 2010C Notes,
but payment will be required of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Company shall not be required (a)
to issue, transfer or exchange any Series 2010C Notes during a period beginning
at the opening of business fifteen (15) days before the date of the mailing of a
notice pursuant to Section 1104 of the Original
Indenture
identifying the serial numbers of the Series 2010C Notes to be called for
redemption, and ending at the close of business on the day of the mailing, or
(b) to issue, transfer or exchange any Series 2010C Notes theretofore selected
for redemption in whole or in part, except the unredeemed portion of any Series
2010C Notes redeemed in part.
SECTION 107.
Redemption at the Company’s
Option
.
The
Series 2010C Notes will be subject to redemption at the option of the Company,
in whole or in part, at any time and from time to time, upon not less than 30
nor more than 60 days’ notice, at redemption prices equal to the greater of (1)
100% of the principal amount of the Series 2010C Notes being redeemed and (2)
the sum of the present values of the remaining scheduled payments of principal
and interest on the Series 2010C Notes being redeemed (not including any portion
of such payments of interest accrued to the Redemption Date) discounted (for
purposes of determining present value) to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at a discount
rate equal to the Treasury Yield plus 20 basis points (each, a “Redemption
Price”), plus, in each case, accrued interest thereon to the Redemption
Date.
In the event of redemption of the
Series 2010C Notes in part only, a new Series 2010C Note or Notes for the
unredeemed portion will be issued in the name or names of the Holders thereof
upon the surrender thereof.
Notice of redemption shall be given as
provided in Section 1104 of the Original Indenture except that any notice of
redemption shall not specify the Redemption Price but only the manner of
calculation thereof. The Trustee shall not be responsible for the
calculation of the Redemption Price. The Company shall calculate the
Redemption Price and promptly notify the Trustee thereof.
Any redemption of less than all of the
Series 2010C Notes shall, with respect to the principal thereof, be divisible by
$1,000.
ARTICLE
2
Miscellaneous
Provisions
SECTION 201.
Recitals by
Company
. The recitals in this Forty-Second Supplemental
Indenture are made by the Company only and not by the Trustee, and all of the
provisions contained in the Original Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of Series 2010C Notes and of this Forty-Second Supplemental Indenture as
fully and with like effect as if set forth herein in full.
SECTION 202.
Ratification and
Incorporation of Original Indenture
. As heretofore
supplemented and as supplemented hereby, the Original Indenture is in all
respects ratified and confirmed, and the Original Indenture as heretofore
supplemented and as supplemented by this Forty-Second Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 203.
Executed in
Counterparts
. This Forty-Second Supplemental Indenture may be
simultaneously executed in several counterparts, each of which shall be deemed
to be an original, and such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, each party hereto
has caused this instrument to be signed in its name and behalf by its duly
authorized officers, all as of the day and year first above
written.
|
ATTEST:
By: /s/Daniel
Lowery
Daniel Lowery
Corporate Secretary
|
GEORGIA
POWER COMPANY
By: /s/Ronnie
R.
Labrato
Ronnie R. Labrato
Executive Vice
President,
Chief Financial Officer and
Treasurer
|
|
ATTEST:
By: /s/Timothy
W.
Casey
Timothy W. Casey
Senior Associate
|
THE
BANK OF NEW YORK MELLON, as Trustee
By: /s/Laurence
J.
O'Brien
Laurence J.
O’Brien
Vice President
|
EXHIBIT
A
FORM OF
SERIES 2010C NOTE
|
NO.
___
|
CUSIP NO.
373334JS1
|
GEORGIA
POWER COMPANY
SERIES
2010C 4.75% SENIOR NOTE
DUE
SEPTEMBER 1, 2040
|
Principal
Amount:
|
$__________________
|
|
Regular
Record Date:
|
15
th
calendar day prior to Interest Payment Date (whether or not a Business
Day)
|
|
Original
Issue Date:
|
August
31, 2010
|
|
Stated
Maturity:
|
September
1, 2040
|
|
Interest
Payment Dates:
|
March
1 and September 1
|
|
Interest
Rate:
|
4.75%
per annum
|
|
Authorized
Denominations:
|
$1,000
or any integral multiple thereof
|
Georgia Power Company, a Georgia
corporation (the “Company”, which term includes any successor corporation under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to ______________, or registered assigns, the principal sum of
______________ DOLLARS ($_________) on the Stated Maturity shown above (or upon
earlier redemption), and to pay interest thereon from the Original Issue Date
shown above, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semiannually in arrears on each Interest Payment
Date as specified above, commencing on March 1, 2011, and on the Stated Maturity
(or upon earlier redemption) at the rate per annum shown above until the
principal hereof is paid or made available for payment and at such rate on any
overdue principal and on any overdue installment of interest. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date (other than an Interest Payment Date that is the Stated Maturity or
on a Redemption Date) will, as provided in such Indenture, be paid to the Person
in whose name this Note (the “Note”) is registered at the close of business on
the Regular Record Date as specified above next preceding such Interest Payment
Date, provided that any interest payable at the Stated Maturity or on any
Redemption Date will be paid to the Person to whom principal is
payable. Except as otherwise provided in the Indenture, any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes of this series shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.
Payments of interest on this Note will
include interest accrued to but excluding the respective Interest Payment
Dates. Interest payments for this Note shall be computed and paid on
the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on the
date the payment was originally payable. A “Business Day” shall mean
any day other than a Saturday or a Sunday or a day on which banking institutions
in New York City are authorized or required by law or executive order to remain
closed or a day on which the Corporate Trust Office of the Trustee is closed for
business.
Payment of the principal of and
interest due at the Stated Maturity or earlier redemption of the Series 2010C
Notes shall be made upon surrender of the Series 2010C Notes at the Corporate
Trust Office of the Trustee. The principal of and interest on the
Series 2010C Notes shall be paid in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest
Payment Date) will be made, subject to such surrender where applicable, at the
option of the Company, (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer or other electronic transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to the
Trustee at least 16 days prior to the date for payment by the Person entitled
thereto.
REFERENCE IS HEREBY MADE TO THE FURTHER
PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
Unless the certificate of
authentication hereon has been executed by the Trustee by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has
caused this instrument to be duly executed under its corporate
seal.
Dated:
|
|
GEORGIA
POWER COMPANY
By:
Title:
|
Attest:
Title:
{Seal of
GEORGIA POWER COMPANY appears here}
CERTIFICATE
OF AUTHENTICATION
This is one of the Senior Notes
referred to in the within-mentioned Indenture.
|
|
THE
BANK OF NEW YORK MELLON,
as
Trustee
By:
Authorized
Signatory
|
(Reverse
Side of Note)
This Note is one of a duly authorized
issue of Senior Notes of the Company (the “Notes”), issued and issuable in one
or more series under a Senior Note Indenture, dated as of January 1, 1998, as
supplemented (the “Indenture”), between the Company and The Bank of New York
Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly known as The Chase
Manhattan Bank)), as Trustee (the “Trustee,” which term includes any successor
trustee under the Indenture), to which Indenture and all indentures incidental
thereto reference is hereby made for a statement of the respective rights,
limitation of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes issued thereunder and of the terms upon
which said Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face
hereof as Series 2010C 4.75% Senior Notes due September 1, 2040 (the “Series
2010C Notes”) which is unlimited in aggregate principal
amount. Capitalized terms used herein for which no definition is
provided herein shall have the meanings set forth in the Indenture.
The Series 2010C
Notes
will be subject to redemption at the option of the Company in whole or in part,
at any time and from time to time, upon not less than 30 nor more than 60 days’
notice at redemption prices equal to the greater of (i) 100% of the principal
amount of the Series 2010C
Notes
being redeemed and (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Series 2010C
Notes
being redeemed (not including any portion of such payments of interest accrued
to the Redemption Date) discounted (for purposes of determining present value)
to the Redemption Date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 20
basis points (each, a “Redemption Price”), plus, in each case, accrued interest
thereon to the Redemption Date.
“Treasury Yield” means, with respect to
any Redemption Date, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
“Comparable Treasury Issue” means the
United States Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the Series 2010C
Notes
to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Series
2010C
Notes.
“Comparable Treasury Price” means, with
respect to any Redemption Date, (i) the average of the Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Company obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
quotations.
“Independent Investment Banker” means
an independent investment banking institution of national standing appointed by
the Company.
“Reference Treasury Dealer” means a
primary United States Government securities dealer in the United States
appointed by the Company.
“Reference Treasury Dealer Quotation”
means, with respect to a Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount and quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day in New York City preceding such
Redemption Date).
The Trustee shall not be responsible
for the calculation of the Redemption Price. The Company shall
calculate the Redemption Price and promptly notify the Trustee
thereof.
In the event of redemption of this Note
in part only, a new Note or Notes of this series for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the surrender
hereof.
The Series 2010C Notes will not have a
sinking fund.
If an Event of Default with respect to
the Notes of this series shall occur and be continuing, the principal of the
Notes of this series may be declared due and payable in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Notes of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Notes at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture
and no provision of this Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes of this series, of authorized denominations and of like
tenor and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made
for any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Note
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Notes of this series are issuable
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Notes of this series are exchangeable
for a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the Holder surrendering the same upon
surrender of the Note or Notes to be exchanged at the office or agency of the
Company.
This Note shall be governed by, and
construed in accordance with, the internal laws of the State of New
York.
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM- as
tenants in
common
|
UNIF
GIFT MIN ACT- _______ Custodian ________
(Cust) (Minor)
|
|
TEN
ENT- as
tenants by the
entireties
|
|
|
JT
TEN- as
joint tenants
with right of
survivorship and
not as tenants
in common
|
under Uniform Gifts
to
Minors Act
________________________
(State)
|
Additional
abbreviations may also be used
though
not on the above list.
FOR VALUE RECEIVED, the undersigned
hereby sell(s) and transfer(s) unto
_______________________________________________________________________________
(please
insert Social Security or other identifying number of assignee)
_______________________________________________________________________________
PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
_______________________________________________________________________________
_______________________________________________________________________________
the
within Note and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________________
_______________________________________________________________________________
agent to
transfer said Note on the books of the Company, with full power of substitution
in the premises.
Dated:
____________ ________________________________________________
________________________________________________
NOTICE: The
signature to this assignment must correspond with the name as written upon the
face of the within instrument in every particular without alteration or
enlargement, or any change whatever.
EXHIBIT
B
CERTIFICATE
OF AUTHENTICATION
This is one of the Senior Notes
referred to in the within-mentioned Indenture.
|
|
THE
BANK OF NEW YORK MELLON,
as
Trustee
By:
Authorized
Signatory
|
