$55,000,000 Series D 5.50% Senior Insured Quarterly Notes due (IQ Notes)
due November 15, 2017
SAVANNAH ELECTRIC AND POWER COMPANY
UNDERWRITING AGREEMENT
November 4, 2002
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the Several Underwriters
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Savannah Electric and Power Company, a Georgia corporation (the "Company"),
confirms its agreement (the "Agreement") with you and the other Underwriter
named in Schedule I hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom you are acting as representative (in such capacity you shall
hereinafter be referred to as the "Representative"), with respect to the sale by
the Company and the purchase by the Underwriters, acting severally and not
jointly, of $55,000,000 aggregate principal amount of the Series D 5.50% Senior
Insured Quarterly Notes (IQ Notes) due November 15, 2017 (the "Senior Notes") as
set forth in Schedule I hereto.
The Company understands that the Underwriters are making a public offering
of the Senior Notes pursuant to this Agreement. The Senior Notes will be issued
pursuant to an indenture, dated as of March 1, 1998 (the "Base Indenture"), by
and between the Company and The Bank of New York, as trustee (the "Trustee"), as
heretofore supplemented and amended and as to be further supplemented and
amended by a fourth supplemental indenture, dated as of November 7, 2002 to the
Base Indenture relating to the Senior Notes (the "Supplemental Indenture" and,
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-57886
and 333-57886-01), in respect of the Senior Notes and certain other securities
has been prepared and filed in accordance with the provisions of the Securities
Act of 1933, as amended (the "1933 Act"), with the Securities and Exchange
Commission (the "Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriters, has been declared effective by the Commission in
such form (except that copies of the registration statement, as amended, and any
post-effective amendment delivered to the Underwriters need not include exhibits
but shall include all documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus supplement, included in
such registration statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the 1933 Act, being
hereinafter called a "Preliminary Prospectus"); such regstration statement, as
it became effective, including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 at the time
such registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in the
form in which it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, as of the date of such Preliminary Prospectus
or Prospectus, as the case may be; any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the Senior
Notes in the form in which it is filed with the Commission, pursuant to Rule
424(b) under the 1933 Act in accordance with Section 3(f) hereof, including any
documents incorporated by reference therein as of the date of such filing, being
hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in all
material respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder, and as of such time of filing,
when read together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are filed with the
Commission, will comply in all material respects with the applicable provisions
of the 1934 Act and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriters expressly for use in the Final
Supplemented Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series D Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and "The
Policy and the Insurer".
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments are
declared effective or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable provisions of the
1933 Act, the 1934 Act, the 1939 Act (hereinafter defined) and the General Rules
and Regulations of the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement and any amendment
thereto, and (ii) as of the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or supplemented, contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the Company makes no
warranties or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form T-1)
(collectively, the "Form T-1") under the Trust Indenture Act of 1939, as amended
(the "1939 Act"), (B) statements or omissions made in the Registration Statement
or the Final Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters expressly
for use therein or (C) any information set forth in the Final Supplemented
Prospectus under the captions "Description of the Series D Senior Notes --
Book-Entry Only Issuance -- The Depository Trust Company" and "The Policy and
the Insurer".
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the properties
used by it in such business, to enter into and perform its obligations under
this Agreement and the Indenture and to issue and sell the Senior Notes to the
Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company, and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will, on the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors' rights
generally or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Enforceability
Exceptions"); the Indenture will conform in all material respects to all
statements relating thereto contained in the Final Supplemented Prospectus; and,
on the Closing Date, the Indenture will have been duly qualified under the 1939
Act.
(i) The issuance and delivery of the Senior Notes have been duly authorized
by the Company and, on the Closing Date, the Senior Notes will have been duly
executed by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material respects to all
statements relating thereto in the Final Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by the
Company of the transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the Company and do
not and will not result in any violation of the charter or bylaws of the
Company, and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Company is
a party or by which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would not,
individually or in the aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Company, or any of its properties.
(k) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guarantee insurance policy (the
"Insurance Policy") issued by Ambac Assurance Corporation (the "Insurer"),
insuring the payment of principal and interest on the Senior Notes, when due.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the issuance
and sale by the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required under the
1933 Act or the rules and regulations thereunder; (B) such as may be required
under the Public Utility Holding Company Act of 1935, as amended; (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.
(m) The financial statements incorporated by reference in the Registration
Statement and the 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 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
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.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, the principal amount of Senior Notes set forth in
Schedule I to this Agreement opposite the name of such Underwriter (plus any
additional amount of Senior Notes that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof), at a price equal to
97.60% of the principal amount thereof.
(b) Payment for and delivery of the certificate(s) for the Senior Notes
shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 10:00 A.M., New York time, on
November 7, 2002 (unless postponed in accordance with the provisions of Section
10) or such other time, place or date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of the Senior
Notes to the Representative. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Senior Notes which it has
agreed to purchase. The Representative, individually and not as 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 Representative not later than 12:00 Noon, New York time,
on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
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 Representative orally of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement, or the institution of
any proceedings therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Company will deliver to the
Representative sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each amendment
and supplement to the Final Supplemented Prospectus relating to the offering of
the Senior Notes in such quantities as the Underwriters may from time to time
reasonably request. If, during the period (not exceeding nine months) when the
delivery of a prospectus shall be required by law in connection with the sale of
any Senior Notes by an Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the circumstances
when it is delivered, or if for any other reason it shall be necessary during
such period to amend or supplement the Final Supplemented Prospectus or to file
under the 1934 Act any document incorporated by reference in the Preliminary
Prospectus or Prospectus in order to comply with the 1933 Act or the 1934 Act,
the Company forthwith will (i) notify the Underwriters to suspend solicitation
of purchases of the Senior Notes and (ii) at its expense, make any such filing
or prepare and furnish to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final
Supplemented Prospectus which will supplement or amend the Final Supplemented
Prospectus so that, as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances when the
Final Supplemented Prospectus is delivered, not misleading or which will effect
any other necessary compliance. In case any Underwriter is required to deliver a
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 Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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
Representative may designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which it is
not so qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 of the rules and regulations under the 1933 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the Company
will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt securities substantially
similar to the Senior Notes (except for the Senior Notes issued pursuant to this
Agreement).
(f) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to file the
Final Supplemented Prospectus with the Commission and to advise the
Representative of such filing and to confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incidental to
the performance of its obligations under this Agreement, including but not
limited to, the expenses of (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificate(s) for the Senior Notes,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Senior Notes under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of the Senior Notes, (x) the
cost and charges of any transfer agent or registrar, (xi) the premium payable to
the Insurer in connection with the issuance of the Insurance Policy and (xii)
the cost of qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for that
purpose shall be pending before, or to the knowledge of the Company threatened
by, the Commission on such date. If filing of the Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in accordance with
the terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representative, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the Company
unless within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect that such
order contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, general counsel for the Company, substantially in the form
attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Pillsbury Winthrop LLP,
counsel to the Trustee, substantially in the form attached hereto
as Schedule III.
(4) The opinion, dated the Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(5) The opinion, dated the Closing Date, of counsel to the Insurer,
substantially in the form attached hereto as Schedule V.
(6) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is
given in the Registration Statement and the 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
Representative shall have received a certificate of the President
or any Vice President of the Company, and dated as of the Closing
Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the
knowledge of the Company, threatened by the Commission.
(7) On the Closing Date, the Representative shall have received from
Deloitte & Touche LLP a letter dated the Closing Date to the
effect that: (A) they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act and (B) on the basis of
certain limited procedures performed through a specified date not
more than five business days prior to the date of such letter,
namely (i) reading the minute books of the Company; (ii)
performing the procedures specified by the American Institute of
Certified Public Accountants ("AICPA") for a review of interim
financial information as described in Statement on Auditing
Standards No. 71, "Interim Financial Information", on the
unaudited financial statements, if any, of the Company
incorporated in the Prospectus and of the latest available
unaudited financial statements of the Company, if any, for any
calendar quarter subsequent to the date of those incorporated in
the Prospectus; and (iii) making inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters regarding such unaudited financial statements
or any specified unaudited amounts derived therefrom (it being
understood that the foregoing procedures do not constitute an
audit performed in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter,
and accordingly that 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 in the Prospectus, for them to be in
conformity with generally accepted accounting principles; (2)
such unaudited condensed financial statements do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the
related published rules and regulations thereunder; (3) the
unaudited amounts for Operating Revenues, Earnings Before
Interest and Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed
Charges set forth in the Prospectus 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
five business days prior to the date of delivery of such letter,
there has been any change in the capital stock or long-term debt
of the Company or any decrease in net assets as compared with
amounts shown in the latest unaudited balance sheet incorporated
by reference in the Prospectus, except in each case for changes
or decreases which (i) the Prospectus discloses have occurred or
may occur, (ii) are occasioned by the declaration of dividends,
(iii) are occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (iv) are occasioned by
the purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, or (v) are
disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Interest and Income Taxes and
Net Income After Dividends on Preferred Stock and the unaudited
Ratio of Earnings to Fixed Charges for any calendar quarter
subsequent to those set forth in (3) above, which if available
shall be set forth in such letter, do not agree with the amounts
set forth in or derived from the unaudited financial statements
for the same period included or incorporated by reference in the
Prospectus.
(8) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as 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 Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters.
(9) That no amendment or supplement to the Registration Statement or
the Final Supplemented Prospectus filed subsequent to the date of
this Agreement (including any filing made by the Company pursuant
to Section 13 or 14 of the 1934 Act) shall be unsatisfactory in
form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 Representative, shall materially impair the
marketability of the Senior Notes.
(10) The Company shall have performed its obligations when and as
provided under this Agreement.
(11) Evidence that the Insurance Policy has been issued by the Insurer
and confirmation that the Senior Notes have been rated at least
Aaa by ▇▇▇▇▇'▇ Investor Services, Inc. and at least AAA by
Standard & Poor's Ratings Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
--------------------------------------------
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each of the Underwriters
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus as
so amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by, or through
the Representative on behalf of, the Underwriters for use therein and except
that this indemnity with respect to the Preliminary Prospectus, the Prospectus
or the Final Supplemented Prospectus, if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
losses, claims, damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference pursuant to Item 12 of Form S-3), as the same
may then be amended or supplemented, shall not have been sent or given by or on
behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus as supplemented
or amended at the time of such confirmation. Each Underwriter agrees, within ten
days after the receipt by it of notice of the commencement of any action in
respect of which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the omission of
such Underwriter so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 7. In case any such action shall be brought against an
Underwriter or any such person controlling such Underwriter and such Underwriter
shall notify the Company of the commencement thereof as above provided, the
Company shall be entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense thereof, at its
own expense. In case the Company elects to direct such defense and select such
counsel, any Underwriter or controlling person shall have the right to employ
its own counsel, but, in any such case, the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel has been authorized in writing by the Company in
connection with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by, or through the
Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
--------------------------------------------------------------
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice to the Company,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities, or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other substantial national or international
calamity, 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 judgement of the
Representative, the marketability of the Senior Notes shall have been materially
impaired.
(b) If this Agreement shall be terminated by the
Representative 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Senior Notes and, upon
such reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY 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 Representative 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 Representative 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 Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ &
Co., L.P., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇; notices to the Company shall be mailed to ▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, with a copy
to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Company and their respective successors and the controlling persons and officers
and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
SAVANNAH ELECTRIC AND POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
As Representative of the Several Underwriters
named in Schedule I hereto
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P.
By: ___________________________
Title:
SCHEDULE I
Principal Amount of
Name of Underwriters Senior Notes
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. $49,500,000
Wachovia Securities, Inc. $ 5,500,000
TOTAL: $55,000,000
-----------
Schedule II-A
[Letterhead of Bouhan, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP]
November __, 2002
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the Several Underwriters
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
SERIES D _.__% SENIOR INSURED QUARTERLY NOTES (IQ NOTES)
DUE NOVEMBER 15, 2017
Dear Sirs:
We have acted as general counsel to Savannah Electric and
Power Company (the "Company") in connection with (i) the Company's issuance of
$55,000,000 aggregate principal amount of its Series D _.__% Senior Insured
Quarterly Notes (IQ Notes) due November 15, 2017 (the "Notes") pursuant to a
Senior Note Indenture dated as of March 1, 1998, by and between the Company and
The Bank of New York, as trustee (the "Trustee"), as heretofore supplemented and
as supplemented by the Fourth Supplemental Indenture dated as of November __,
2002 (collectively, the "Indenture"); and (ii) the purchase by the
Representative of the Notes pursuant to the terms of an Underwriting Agreement
dated November __, 2002, among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as the
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-57886 and 333-57886-01)
pertaining to the Notes (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated April
30, 2001 as supplemented by a prospectus supplement dated November __, 2002 (the
"Final Supplemented Prospectus"), which pursuant to Form S-3 incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2001 (the "Form 10-K"), the Quarterly Reports on Form 10-Q of
the Company for the quarters ended March 31, 2002 and June 30, 2002 and the
Current Reports on Form 8-K of the Company dated February 13, 2002, March 28,
2002 and November __, 2002 (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
We are of the opinion, relying as to matters of New York law
upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Georgia and has
due corporate authority to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Georgia Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of November __, 2002, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of the filing of the
Form 10-K (including the Exchange Act Documents on file with the Commission as
of such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) 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
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series D Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and "The
Policy and the Insurer".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the law of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Schedule II-B
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
ber __, 2002
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the Several Underwriters
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
Series D _.__% Senior Insured Quarterly Notes (IQ Notes) due November 15, 2017
Ladies and Gentlemen:
We have acted as counsel to Savannah Electric and Power
Company (the "Company") in connection with (i) the Company's issuance and sale
of $55,000,000 aggregate principal amount of its Series D _.__% Senior Insured
Quarterly Notes (IQ Notes) due November 15, 2017 (the "Notes") pursuant to a
Senior Note Indenture dated as of March 1, 1998, by and between the Company and
The Bank of New York, as trustee (the "Trustee"), as heretofore supplemented and
as supplemented by the Fourth Supplemental Indenture dated as of November __,
2002 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated November __, 2002 (the
"Underwriting Agreement"), among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative. This opinion is being delivered to you as Representative
pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-57886 and 333-57886-01)
pertaining to the Notes and certain other securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus of the Company dated April 30, 2001 as supplemented by the
prospectus supplement dated November __, 2002 (the "Final Supplemented
Prospectus"), which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 2001
(the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended March 31, 2002 and June 30, 2002 and the Current Reports on Form
8-K of the Company dated February 13, 2002, March 28, 2002 and November __, 2002
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements."
Based on the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of New
York law upon the opinion dated the date hereof rendered to you by ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia, and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Georgia Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP, with other counsel for the
Company and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of November __, 2002, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of the
filing of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) 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 the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the captions "Description of the Series D
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and
"The Policy and the Insurer".
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Schedule III
[Letterhead of Pillsbury Winthrop LLP]
November __, 2002
Savannah Electric and Power Company
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.,
as Representative of the Several Underwriters (the "Underwriters") named in the
Underwriting Agreement dated November 4, 2002 between Savannah Electric and
Power Company, a Georgia corporation (the "Company"), and the Underwriters ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel for The Bank of New York, a New York banking
corporation ("BNY"), in connection with the several purchases by the
Underwriters, for whom ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. has acted as representative,
of $55,000,000 aggregate principal amount of Series D _.__% Senior Insured
Quarterly Notes (IQ Notes) due November 15, 2017 (the "Notes") issued by the
Company. The Notes are being issued under the Senior Note Indenture dated as of
March 1, 1998 between the Company and BNY, as trustee (in such capacity, the
"Trustee"), as amended and supplemented by the Fourth Supplemental Indenture
dated as of November __, 2002 between the Company and the Trustee (collectively,
the "Indenture").
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 upon certificates of BNY 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 BNY 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. BNY 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 Indenture has been duly authorized, executed and delivered by the Trustee
and constitutes a valid and binding agreement of the Trustee enforceable against
the Trustee 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 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 the benefit of the Company and the several
Underwriters in connection with the issuance and sale by the Company of the
Notes and may not be relied upon by the Company or the several Underwriters for
any other purpose, or relied upon by or furnished to any other person, without
our prior written consent.
Very truly yours,
PILLSBURY WINTHROP LLP
Schedule IV
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
November __, 2002
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the Several Underwriters
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
Series D _.__% Senior Insured Quarterly Notes (IQ Notes) due November 15, 2017
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Savannah Electric and Power Company (the "Company") of $55,000,000 of its Series
D _.__% Senior Insured Quarterly Notes (IQ Notes) due November 15, 2017 (the
"Notes") pursuant to a Senior Note Indenture dated as of March 1, 1998 by and
between the Company and The Bank of New York, as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Fourth Supplemental
Indenture, dated as of November __, 2002 (collectively, the "Indenture"); and
(ii) the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated November __, 2002, among the Company and the underwriters named
in Schedule I thereto (the "Underwriters") for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-57886 and 333-57886-01)
pertaining to the Notes (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated April
30, 2001, as supplemented by a final prospectus supplement relating to the Notes
dated November __, 2002, 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, 2001 (the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company
for the quarters ended March 31, 2002 and June 30, 2002 and the Current Reports
on Form 8-K of the Company dated February 13, 2002, March 28, 2002 and November
__, 2002 (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the law
of the State of Georgia upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, dated the date
hereof and addressed to you that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of November __, 2002, complied as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of the date
of the filing of the Form 10-K (including the Exchange Act Documents on file
with the Commission as of such date), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that the Final Supplemented Prospectus (including the Exchange Act Documents)
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 the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the captions "Description of the Series D
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and
"The Policy and the Insurer".
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may
rely on this opinion in giving their opinions pursuant to Section 5(c) of the
Underwriting Agreement, insofar as such opinions relate to New York law, and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
Schedule V
[Letterhead of Insurer's counsel]
November __, 2002
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P.
As Representative of the Several Underwriters
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
Series D _.__ % Senior Insured Quarterly Notes (IQ Notes) due November 15, 2017
Ladies and Gentlemen:
This opinion has been requested of the undersigned, a Vice
President and an Assistant General Counsel of Ambac Assurance Corporation., a
Wisconsin-domiciled stock insurance company ("Ambac Assurance"), in connection
with the issuance by Ambac Assurance of a certain Financial Guaranty Insurance
Policy and endorsement thereto, effective as of the date hereof (the "Policy"),
insuring $55,000,000 in aggregate principal amount of the Savannah Electric and
Power Company (the "Issuer") Series D _.__% Senior Insured Quarterly Notes (IQ
Notes) due November 15, 2017 (the "Obligations").
In connection with my opinion herein, I have examined the
Policy, such statutes, documents and proceedings as I have considered necessary
or appropriate under the circumstances to render the following opinion,
including, without limiting the generality of the foregoing, certain statements
contained in the Prospectus Supplement dated November __, 2002 to the Prospectus
of the Issuer dated April 30, 2001 relating to the Obligations (the "Prospectus
Supplement") under the headings "The Policy and the Insurer" and "Appendix A --
Form of Policy".
Based upon the foregoing and having regard to legal
considerations I deem relevant, I am of the opinion that:
1. Ambac Assurance is a stock insurance company duly organized
and validly existing under the laws of the State of Wisconsin
and duly qualified to conduct an insurance business in the
State of Georgia.
2. Ambac Assurance has full corporate power and authority to
execute and deliver the Policy and the Policy has been duly
authorized, executed and delivered by Ambac Assurance and
constitutes a legal, valid and binding obligation of Ambac
Assurance enforceable in accordance with its terms except to
the extent that the enforceability (but not the validity) of
such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law
or enactment now or hereafter enacted affecting the
enforcement of creditors' rights.
3. The execution and delivery by Ambac Assurance of the Policy
will not, and the consummation of the transactions
contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the
terms, conditions or provisions of the Certificate of
Authority, Articles of Incorporation or By-Laws of Ambac
Assurance, or any restriction contained in any contract,
agreement or instrument to which Ambac Assurance is party or
by which it is bound or constitute a default under any of the
foregoing.
4. Proceedings legally required for the issuance of the Policy
have been taken by Ambac Assurance and licenses, orders,
consents or other authorizations or approvals of any
governmental boards or bodies legally required for the
enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or
approvals not obtained are not material to the enforceability
of the Policy.
5. The statements contained in the Prospectus Supplement under
the heading "The Policy and the Insurer", insofar as such
statements constitutes summaries of the matters referred to
therein, accurately reflect and fairly present the information
purported to be shown and, insofar as such statements describe
Ambac Assurance, fairly and accurately describe Ambac
Assurance. The form of Policy contained in the Prospectus
Supplement under the heading "Appendix A -- Form of Policy" is
a true and complete copy of the form of Policy.
Very truly yours,
Vice President and
Assistant General Counsel