Exhibit 1.1
$25,000,000 Series E 4.90% Senior Notes due December 15, 2013
SAVANNAH ELECTRIC AND POWER COMPANY
UNDERWRITING AGREEMENT
December 10, 2003
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Savannah Electric and Power Company, a Georgia corporation
(the "Company"), confirms its agreement (the "Agreement") with you (the
"Underwriter") with respect to the sale by the Company and the purchase by the
Underwriter of $25,000,000 aggregate principal amount of the Series E 4.90%
Senior Notes due December 15, 2013 (the "Senior Notes").
The Company understands that the Underwriter is 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 fifth supplemental indenture, dated as of December
17, 2003 to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture" and, together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-103772 and
333-103772-01) 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 and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the Underwriter,
has been declared effective by the Commission in such form (except that
copies of the registration statement and any post-effective amendment
delivered to the Underwriter need not include exhibits but shall
include all documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or,
to the best knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes,
in the form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under
the 1933 Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act
after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the
Prospectus as amended or supplemented in final form by a prospectus
supplement relating to the Senior Notes in the form in which it is
filed with the Commission, pursuant to Rule 424(b) under the 1933 Act
in accordance with Section 3(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 Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
expressly for use in the Final Supplemented Prospectus; or (B) any
information set forth in the Final Supplemented Prospectus under the
caption "Description of the Series E Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company."
(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 (as hereinafter defined) and the General Rules
and Regulations of the Commission thereunder and do not and will not,
(i) as of the applicable effective date as to the Registration
Statement and any amendment thereto, and (ii) as of the applicable
filing date as to the Final Supplemented Prospectus and any Prospectus
as further amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the Company makes no
warranties or representations with respect to: (A) that part of the
Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "1939 Act"); (B) statements or
omissions made in the Registration Statement or the Final Supplemented
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly for
use therein; or (C) any information set forth in the Final Supplemented
Prospectus under the caption "Description of the Series E Senior Notes
-- Book-Entry Only Issuance -- The Depository Trust Company."
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have
been satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the
laws of the State of Georgia and has due corporate authority to carry
on the public utility business in which it is engaged and to own and
operate the properties used by it in such business, to enter into and
perform its obligations under this Agreement and the Indenture and to
issue and sell the Senior Notes to the Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (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 Final Supplemented Prospectus; and, on the Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and thereunder
shall have been duly authorized by all necessary corporate action on
the part of the Company and do not and will not result in any violation
of the charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which it may be bound or to which any of its
properties may be subject (except for conflicts, breaches or defaults
which would not, individually or in the aggregate, be materially
adverse to the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable law,
rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its properties.
(k) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and regulations
thereunder; (B) such as may be required under the Public Utility
Holding Company Act of 1935, as amended; (C) the qualification of the
Indenture under the 1939 Act; (D) the approval of the Georgia Public
Service Commission (the "Georgia Commission"); and (E) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(l) The financial statements incorporated by reference in the
Registration Statement 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 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 Registration Statement
and 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 UNDERWRITER; CLOSING.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, $25,000,000 aggregate principal amount of Senior Notes at a price equal
to 99.163% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes shall
be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at 10:00 A.M., New York time, on
December 17, 2003 or such other time, place or date as shall be agreed upon by
the Underwriter and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the Company by
wire transfer in federal funds at the Closing Date against delivery of the
Senior Notes to the Underwriter.
The delivery of the Senior Notes shall be made in fully registered
form, registered in the name of CEDE & CO., to the offices of The Depository
Trust Company in New York, New York or its designee, and the Underwriter shall
accept such delivery.
The certificate(s) for the Senior Notes will be made available for
examination by the Underwriter not later than 12:00 Noon, New York City time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriter conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Underwriter orally of the issuance of any stop order under the 1933
Act with respect to the Registration Statement, or the institution of
any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Underwriter sufficient conformed copies
of the Registration Statement, the Prospectus and the Final
Supplemented Prospectus and of all supplements and amendments thereto
(in each case without exhibits) and, from time to time, as many copies
of the Prospectus and the Final Supplemented Prospectus as the
Underwriter may reasonably request for the purposes contemplated by the
1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriter with copies of each
amendment and supplement to the Final Supplemented Prospectus relating
to the offering of the Senior Notes in such quantities as the
Underwriter may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Senior
Notes by the Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
Underwriter, shall occur, which in the opinion of the Company or of
Underwriter's counsel should be set forth in a supplement to or an
amendment of the Final Supplemented Prospectus, as the case may be, in
order to make the Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if for any other
reason it shall be necessary during such period to amend or supplement
the Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the
Company forthwith will (i) notify the Underwriter to suspend
solicitation of purchases of the Senior Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriter a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances when the
Final Supplemented Prospectus is delivered, not misleading or which
will effect any other necessary compliance. In case the Underwriter is
required to deliver a prospectus in connection with the sale of any
Senior Notes after the expiration of the period specified in the
preceding sentence, the Company, upon the request of the Underwriter,
will furnish to the Underwriter, at the expense of the Underwriter, a
reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus,
complying with Section 10(a) of the 1933 Act. During the period
specified in the second sentence of this subsection, the Company will
continue to prepare and file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof prior to
such filing to the Underwriter and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Underwriter may designate; provided, however, that
the Company shall not be obligated to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified or to file a
consent to service of process or to file annual reports or to comply
with any other requirements in connection with such qualification
deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of
the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 of the rules and
regulations under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(e) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriter's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement and the
$35,000,000 aggregate principal amount of the Company's Series F Senior
Notes due December 15, 2028). The Underwriter agrees that commercial
paper or other debt securities with scheduled maturities of less than
one year are not subject to this section 3(e).
(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, the
Company will file the Final Supplemented Prospectus with the Commission
and advise the Underwriter of such filing and confirm such advice in
writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement, including
but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriter of copies of the Registration Statement
as originally filed and of each amendment thereto and of the Prospectus, the
Final Supplemented Prospectus and any amendments or supplements thereto, (vi)
the printing and delivery to the Underwriter of copies of any blue sky survey,
(vii) the fee of the National Association of Securities Dealers, Inc. in
connection with its review of the offering contemplated by this Agreement, if
applicable, (viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Senior Notes, (ix) any fees payable in connection with the rating of the
Senior Notes, (x) the cost and charges of any transfer agent or registrar and
(xi) the cost of qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the Underwriter shall
pay all other expenses incurred by them in connection with their offering of the
Senior Notes including fees and disbursements of its counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP.
SECTION 5. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of
the Underwriter to purchase and pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriter or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Underwriter, are deemed acceptable to the Underwriter and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriter and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Underwriter shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Levy LLP, general counsel for the Company, substantially in the form
attached hereto as Schedule I-A.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, counsel for the Company, substantially in the form attached hereto
as Schedule I-B.
(3) The opinion, dated the Closing Date, of Pillsbury Winthrop
LLP, counsel to the Trustee, substantially in the form attached hereto
as Schedule II.
(4) The opinion, dated as of the Closing Date, of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, substantially in the form
attached hereto as Schedule III.
(5) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, and the Underwriter shall have received a
certificate of the President or any Vice President of the Company, and
dated as of the Closing Date, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties
in Section 1 hereof are true and correct with the same force and effect
as though expressly made at and as of the Closing Date, (iii) the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied on or prior to the Closing
Date, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or, to the knowledge of the Company,
threatened by the Commission.
(6) On the Closing Date, the Underwriter shall have received
from Deloitte & Touche LLP a letter dated the Closing Date to the
effect that: (A) they are independent certified public accountants with
respect to the Company within the meaning of the 1933 Act and the rules
and regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the Final
Supplemental Prospectus comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act and the rules
and regulations under the 1934 Act; and (C) on the basis of certain
limited procedures performed through a specified date not more than
five business days prior to the date of such letter, namely (i) reading
the minute books of the Company; (ii) performing the procedures
specified by the American Institute of Certified Public Accountants
("AICPA") for a review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial Information"
and in Statement on Auditing Standards No. 100, "Interim Financial
Information," as applicable, on the unaudited financial statements, if
any, of the Company incorporated in the Prospectus 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 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 Underwriter's purposes), nothing came to their attention that
caused them to believe that: (1) any material modifications should be
made to the unaudited condensed financial statements, if any
incorporated by reference 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 Income Taxes and Net Income and the unaudited
Ratio of Earnings to Fixed Charges set forth in the Final Supplemented
Prospectus do not agree with the amounts set forth in or derived from
the unaudited financial statements for the same period 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 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, (v) are occasioned by
draw-downs under existing pollution control financing arrangements, or
(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 and the unaudited Ratio of Earnings to Fixed Charges for
any calendar quarter subsequent to those set forth in (3) above, which
if available shall be set forth in such letter, do not agree with the
amounts set forth in or derived from the unaudited financial statements
for the same period or were not determined on a basis substantially
consistent with that of the corresponding audited amounts or ratios
included or incorporated by reference in the Prospectus.
(7) On the Closing Date, counsel for the Underwriter shall
have been furnished with such documents and opinions as it may
reasonably require for the purpose of enabling it to pass upon the
issuance and sale of the Senior Notes as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Underwriter and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriter.
(8) 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 Underwriter) which, in the reasonable judgment of the
Underwriter, shall materially impair the marketability of the Senior
Notes.
(9) The Company shall have performed its obligations when and
as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the conditions set
forth in the first sentence of Section 5(a) and in Section 5(b). In case such
conditions shall not have been fulfilled, this Agreement may be terminated by
the Company by mailing or delivering written notice thereof to the Underwriter.
Any such termination shall be without liability of any party to any other party
except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse the Underwriter and such controlling person or persons, if any, for
any legal or other expenses incurred by them in connection with defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriter any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus as
so amended or supplemented, or arise out of or are based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement, Preliminary
Prospectus, Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter expressly for use therein and except that this indemnity with
respect to the Preliminary Prospectus, the Prospectus or the Final Supplemented
Prospectus, if the Company shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of the Underwriter (or of any person
controlling the 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 the
Underwriter to such person with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue statement or omission or
alleged omission was corrected in the Preliminary Prospectus, the Prospectus or
the Final Supplemented Prospectus as supplemented or amended at the time of such
confirmation. The Underwriter agrees, within ten days after the receipt by it of
notice of the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of the Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to the Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against the Underwriter or any such person
controlling the Underwriter and the Underwriter shall notify the Company of the
commencement thereof as above provided, the Company shall be entitled to
participate in (and, to the extent that it shall wish, including the selection
of counsel, to direct) the defense thereof, at its own expense. In case the
Company elects to direct such defense and select such counsel, the Underwriter
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
the Underwriter or such controlling person unless the employment of such counsel
has been authorized in writing by the Company in connection with defending such
action. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
effected without its prior written consent.
(b) The Underwriter agrees 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 the Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or controlling
person, or by, or on behalf of the Company and shall survive delivery of the
Senior Notes to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended or
there shall have been a material disruption in settlement of 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 Underwriter, the marketability of the Senior Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriter pursuant
to subsection (a) above or because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriter for the reasonable fees and disbursements of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriter in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to Banc One Capital Markets, Inc., ▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Structuring & Execution; notices to the Company shall be mailed to ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, with a
copy to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriter, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriter
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from the Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 12. GOVERNING LAW AND TIME. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 13. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriter and the Company in accordance with its terms.
Very truly yours,
SAVANNAH ELECTRIC AND POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC ONE CAPITAL MARKETS, INC.
By: ___________________________
Title:
Schedule I-A
[Letterhead of Bouhan, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP]
December 17, 2003
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
SERIES E 4.90% SENIOR NOTES DUE December 15, 2013
Ladies and Gentlemen:
We have acted as general counsel to Savannah Electric and
Power Company (the "Company") in connection with (i) the Company's issuance of
$25,000,000 aggregate principal amount of its Series E 4.90% Senior Notes due
December 15, 2013 (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 Fifth
Supplemental Indenture dated as of December 17, 2003 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated December 10, 2003 (the "Underwriting
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(1)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-103772 and 333-103772-01)
pertaining to the Notes (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated April
10, 2003 as supplemented by a prospectus supplement dated December 10, 2003 (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, 2002, the Quarterly Reports on Form 10-Q of the Company for
the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003 and the
Current Reports on Form 8-K of the Company dated December 2, 2003, December 8,
2003, December 10, 2003 and December __, 2003 (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 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 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 sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by you pursuant to the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. 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 December 10, 2003 complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) 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 caption "Description of the Series E Senior Notes - Book-Entry Only Issuance
- The Depository Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of such State
and the federal law of the United States and, to the extent set forth herein,
the law of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 I-B
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
December 17, 2003
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
Series E 4.90% Senior Notes due December 15, 2013
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 $25,000,000 aggregate principal amount of its Series E 4.90% Senior Notes due
December 15, 2013 (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 Fifth
Supplemental Indenture dated as of December 17, 2003 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated December 10, 2003 (the "Underwriting
Agreement"). This opinion is being delivered to you as 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. 333-103772 and 333-103772-01)
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 10, 2003 as supplemented by the
prospectus supplement dated December 10, 2003 (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, 2002,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 2003, June 30, 2003 and September 30, 2003 and the Current Reports on Form
8-K of the Company dated December 2, 2003, December 8, 2003, December 10, 2003
and December __, 2003 (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 you pursuant to the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of 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 December 10, 2003, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) 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 caption "Description of the Series E Senior Notes - Book-Entry Only Issuance
- The Depository Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the State of New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 II
[Letterhead of Pillsbury Winthrop LLP]
December 17, 2003
Savannah Electric and Power Company
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Savannah Electric and Power Company
Series E 4.90% Senior Notes due December 15, 2013
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, a New York banking corporation
("BNY") in connection with the purchase by Banc One Capital Markets, Inc. (the
"Underwriter") of $25,000,000 aggregate principal amount of Series E 4.90%
Senior Notes due December 15, 2013 (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 Fifth Supplemental Indenture dated as of
December 17, 2003 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 Underwriter in
connection with the issuance and sale by the Company of the Notes and may not be
relied upon by the Company or the Underwriter 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 III
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP]
December 17, 2003
Banc One Capital Markets, Inc.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
SAVANNAH ELECTRIC AND POWER COMPANY
Series E 4.90% Senior Notes due December 15, 2013
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Savannah Electric and Power Company (the "Company") of $25,000,000 of its Series
E 4.90% Senior Notes due December 15, 2013 (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 Fifth Supplemental Indenture dated as of December
17, 2003 (collectively, the "Indenture"); and (ii) the purchase by you of the
Notes pursuant to the terms of an Underwriting Agreement dated December 10,
2003, between the Company and you (the "Underwriting Agreement"). This opinion
is being delivered to you 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. 333-103772 and 333-103772-01)
pertaining to the Notes (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated April
10, 2003, as supplemented by a final prospectus supplement relating to the Notes
dated December 10, 2003, 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, 2002, the Quarterly Reports on Form 10-Q of the Company for the quarter
ended March 31, 2003, June 30, 2003 and September 30, 2003 and the Current
Reports on Form 8-K of the Company dated December 2, 2003, December 8, 2003,
December 10, 2003 and December __, 2003 (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 opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, each dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Georgia or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriter pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of 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 December 10, 2003, complied as to
form in all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing came to our attention
which gives us reason to believe that the Registration Statement, as of its
effective date (including the Exchange Act Documents on file with the Commission
as of such date), contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) 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 caption "Description of the Series E Senior
Notes --Book-Entry Only Issuance --The Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the State of Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ 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