Exhibit 1.1
1,800,000 Shares
of
6.00% Series Preferred Stock
Non-Cumulative, Par Value $25 Per Share
SAVANNAH ELECTRIC AND POWER COMPANY
UNDERWRITING AGREEMENT
May 27, 2004
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 1,800,000 shares of 6.00% Series Preferred Stock, Non-Cumulative,
Par Value $25 Per Share of the Company (the "Preferred Stock").
The Company understands that the Underwriter proposes to make
a public offering of the Preferred Stock as soon as the Underwriter deems
advisable after this Agreement has been executed and delivered.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to the Underwriter as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-115381 and
333-115381-01), in respect of the Preferred Stock 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 Underwriter, 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 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 included in such registration statement, as amended, 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, as amended, became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Preferred Stock,
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 Preferred Stock 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; (B) any information set forth in that
part of the Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "1939 Act"); or (C) any information set forth in the Final
Supplemented Prospectus under the caption "Certain Terms of the New Stock -
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 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 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 any information set forth
in the Final Supplemented Prospectus under the caption "Certain Terms of
the New Stock - 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 to issue and sell the Preferred Stock
to the Underwriter.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The issuance and delivery of the Preferred Stock has been duly authorized
by the Company and, on the Closing Date, the Preferred Stock will have been
duly executed by the Company and, when issued and delivered against payment
therefor as described in the Final Supplemented Prospectus, will be validly
issued and fully paid and non-assessable and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus.
(i) The execution, delivery and performance by the Company of this Agreement
and the consummation by the Company of the transactions contemplated herein
and compliance by the Company with its obligations hereunder shall have
been duly authorized by all necessary action (corporate or otherwise) on
the part of the Company and does not and will not result in any violation
of the charter or bylaws of the Company, and does 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.
(j) 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 Preferred Stock 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 approval of the Georgia Public Service Commission (the "Georgia
Commission"); and (D) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or "blue sky" laws.
(k) 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 the Final Supplemented Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial statements
incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, (i) the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, 1,800,000 shares of Preferred Stock at a price equal to $25.00 per
share of Preferred Stock and (ii) the Company agrees to pay the Underwriter as
compensation hereunder, a commission equal to $0.50 per share of Preferred
Stock.
(b) Payment for and delivery of certificates for the Preferred Stock shall be
made at the offices of Xxxxxxxx Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000 at 10:00 A.M., New York time, on June 11, 2004 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 certificates for the
shares of Preferred Stock to the Underwriter.
The delivery of the Preferred Stock 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 shares of Preferred Stock will be
made available for examination by the Underwriter not later than 12:00 Noon, New
York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay the commission
payable to the Underwriter pursuant to paragraph (a) of this Section 2 by wire
transfer in federal funds against receipt therefor by the Underwriter.
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 Preferred Stock 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 Preferred Stock by the Underwriter or a dealer, 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 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
Preferred Stock 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 Preferred Stock 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 Xxxxx Xxxxxxxxxx LLP.
(c) The Company will endeavor, in cooperation with the Underwriter, to qualify
the Preferred Stock 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 share of Preferred Stock or any security
convertible into or exchangeable into or exercisable for preferred stock of
the Company or any securities substantially similar to the Preferred Stock
(except for the Preferred Stock 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, the Company will
file the Final Supplemented Prospectus with the Commission and to advise
the Underwriter of such filing and to confirm such advice in writing.
(g) The Company will file in the office of the Secretary of the State of
Georgia a charter amendment creating the Preferred Stock.
(h) The Company will use its best efforts to effect the listing of the
Preferred Stock on the New York Stock Exchange.
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 shares of
Preferred Stock to the Underwriter, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Preferred Stock
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 cost and charges of any transfer agent or
registrar, (ix) the fees to rating agencies in connection with rating the
Preferred Stock, (x) the fees and expenses incurred in connection with the
listing of the Preferred Stock on the New York Stock Exchange and (xi) the cost
of qualifying the Preferred Stock with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriter shall pay all other expenses incurred by it in connection with its
offering of the Preferred Stock including fees and disbursements of its counsel,
Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter to purchase and pay for the shares of Preferred Stock 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 Xxxxxx, Xxxxxxxx & Xxxx LLP,
general counsel for the Company, substantially in the form attached
hereto as Schedule I-A.
(2) The opinion, dated the Closing Date, of Xxxxxxxx Xxxxxxx LLP, counsel
for the Company, substantially in the form attached hereto as Schedule
I-B.
(3) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP, counsel
for the Underwriter, substantially in the form attached hereto as
Schedule II.
(d) At the Closing Date, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of business, and the
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.
(e) 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 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 Supplemented 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 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", 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 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 in the Final Supplemented 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 Ratios of
Earnings to Fixed Charges and Earnings to Fixed Charges Plus Preferred
Dividend Requirements (Pre-Income Tax Basis) 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; (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 in the Final
Supplemented Prospectus, except in each case for changes or decreases which
(i) the Final Supplemented Prospectus discloses have occurred or may occur,
(ii) are occasioned by the declaration of dividends, (iii) are occasioned
by draw-downs under existing pollution control financing arrangements, (iv)
are occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (v) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or optional redemption
provisions relating thereto, (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 Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred Dividend Requirements
(Pre-Income Tax Basis) 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 Final Supplemented
Prospectus.
(f) On the Closing Date, counsel for the Underwriter shall have been furnished
with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Preferred Stock 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 Preferred Stock as herein contemplated shall be satisfactory in form
and substance to the Underwriter and Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriter.
(g) No amendment or supplement to the Registration Statement or the Final
Supplemented Prospectus filed subsequent to the date of this Agreement
(including any filing made by the Company pursuant to Section 13 or 14 of
the 1934 Act) shall be unsatisfactory in form to Xxxxx Xxxxxxxxxx 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 Preferred Stock.
(h) The Company shall have performed its obligations when and as provided under
this Agreement.
(i) On the Closing Date, the Preferred Stock shall have been approved for
listing on the New York Stock Exchange upon notice of issuance.
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 the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter 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 Preferred Stock 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 any 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, 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 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 Preferred Stock 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 Preferred Stock 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 Xxxxx
Xxxxxxxxxx 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 shares of Preferred Stock 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 Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Managing Director, Debt Capital Markets with a copy to the General
Counsel; notices to the Company shall be delivered to 000 Xxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000, Attention: Corporate Secretary, with a copy to Southern
Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxx.
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 Preferred Stock 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: /s/Xxxxx Boston
Title: Asst. Sect.
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX BROTHERS INC.
By: /s/Xxxxxxx X. Whench
Title: Managing Director
Schedule I-A
[Letterhead of Bouhan, Xxxxxxxx & Xxxx LLP]
___________ __, 200_
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SAVANNAH ELECTRIC AND POWER COMPANY
1,800,000 Shares
of
6.00% Series Preferred Stock
Non-Cumulative, Par Value $25 Per Share
Ladies and Gentlemen:
We have acted as general counsel to Savannah Electric and
Power Company (the "Company") in connection with the purchase by you of
1,800,000 shares of 6.00% Series Preferred Stock, Non-Cumulative, Par Value $25
Per Share of the Company (the "Preferred Stock") pursuant to the terms of an
Underwriting Agreement dated _______, 2004 (the "Underwriting Agreement"),
between the Company and you. 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, as amended (File Nos. 333-115381 and
333-115381-01), pertaining to the Preferred Stock and certain other securities
(the "Registration Statement") filed under the Securities Act of 1933, as
amended (the "Act"), and the prospectus dated ___________, 2004 as supplemented
by a final prospectus supplement dated __________, 200_ (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, 2003,
the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31,
2004 and the Current Reports on Form 8-K of the Company dated May 7, 2004, May
18, 2004 and __________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Stock, 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.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx 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 Underwriting Agreement.
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 Preferred Stock have been obtained; such orders are sufficient
for the issuance and the sale of the Preferred Stock; the issuance and the sale
of the Preferred Stock 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 Preferred Stock in accordance with the terms of the
Underwriting Agreement.
4. The Preferred Stock has been duly authorized by the Company and, upon payment
and delivery in accordance with the Underwriting Agreement, will be validly
issued, fully paid and nonassessable.
5. The statements made in the Final Supplemented Prospectus under the captions
"Description of the New Stock" and "Certain Terms of the New Stock" constitute
accurate summaries of the terms of the articles of incorporation of the Company
and the Preferred Stock in all material respects.
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 paragraph 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 __________, 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 "Certain Terms of the New Stock - 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, to the extent set forth herein, the law of the State of New York and the
federal law of the United States.
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 Xxxxx Xxxxxxxxxx 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,
XXXXXX, XXXXXXXX & XXXX LLP
Schedule I-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
__________ __, 200_
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SAVANNAH ELECTRIC AND POWER COMPANY
1,800,000 Shares
of
6.00% Series Preferred Stock
Non-Cumulative, Par Value $25 Per Share
Ladies and Gentlemen:
We have acted as counsel to Savannah Electric and Power
Company (the "Company") in connection with the purchase by you of 1,800,000
shares of 6.00% Series Preferred Stock, Non-Cumulative, Par Value $25 Per Share
of the Company (the "Preferred Stock") pursuant to the terms of an Underwriting
Agreement dated May __, 2004 (the "Underwriting Agreement"), between the Company
and you. This opinion is being delivered to you 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, as amended (File Nos. 333-115381 and
333-115381-01), pertaining to the Preferred Stock and certain other securities
(the "Registration Statement") filed under the Securities Act of 1933, as
amended (the "Act"), and the prospectus dated ___________, 2004 as supplemented
by a final prospectus supplement dated __________, 200_ (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, 2003,
the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31,
2004 and the Current Reports on Form 8-K of the Company dated May 7, 2004, May
18, 2004 and ________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Stock, 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.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx 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.
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 Preferred Stock have been obtained; such orders are sufficient
for the issuance and sale of the Preferred Stock; the issuance and sale of the
Preferred Stock 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 Preferred Stock in accordance with the terms of the Underwriting Agreement.
4. The Preferred Stock has been duly authorized by the Company and, upon payment
and delivery in accordance with the Underwriting Agreement, will be validly
issued, fully paid and nonassessable.
5. The statements made in the Final Supplemental Prospectus under the captions
"Description of the New Stock" and "Certain Terms of the New Stock" constitute
accurate summaries of the terms of the articles of incorporation of the Company
and the Preferred Stock in all material respects.
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 paragraph 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 _______________, 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 "Certain Terms of the New Stock - 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 Xxxxx Xxxxxxxxxx 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,
XXXXXXXX XXXXXXX LLP
Schedule II
[Letterhead of XXXXX XXXXXXXXXX LLP]
__________ __, 200_
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SAVANNAH ELECTRIC AND POWER COMPANY
1,800,000 Shares
of
6.00% Series Preferred Stock
Non-Cumulative, Par Value $25 Per Share
Ladies and Gentlemen:
We have represented you in connection with the purchase by you
of 1,800,000 shares of 6.00% Series Preferred Stock, Non-Cumulative, Par Value
$25 Per Share of the Company (the "Preferred Stock") pursuant to the terms of an
Underwriting Agreement dated May __, 2004 (the "Underwriting Agreement"),
between the Company and you. This opinion is being delivered to you pursuant to
Section 5(c)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3, as amended (File Nos. 333-115381 and
333-115381-01), pertaining to the Preferred Stock and certain other securities
(the "Registration Statement"), filed under the Securities Act of 1933, as
amended (the "Act"), and the prospectus dated ___________, 2004, as supplemented
by a final prospectus supplement dated ___, 200_ (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, 2003,
the Quarterly Report on Form 10-Q of the Company for the quarter ended March 31,
2004 and the Current Reports on Form 8-K of the Company dated May 7, 2004, May
18, 2004 and _________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Stock, 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.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the State of Georgia upon the opinions of Xxxxxxxx Xxxxxxx LLP and
Xxxxxx, Xxxxxxxx & Xxxx LLP dated the date hereof and addressed to you and forms
of which are attached as Schedule I-A and Schedule I-B to the Underwriting
Agreement, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Georgia and has due
corporate authority to carry on the public utility business in which it is
engaged, to own and operate the properties used by it in such business and to
enter into and perform its obligations under the Underwriting Agreement.
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 Preferred Stock have been obtained; such orders are sufficient
for the issuance and sale of the Preferred Stock; the issuance and sale of the
Preferred Stock 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 Preferred Stock in accordance with the terms of the Underwriting Agreement.
4. The Preferred Stock has been duly authorized by the Company and, upon payment
and delivery in accordance with the Underwriting Agreement, will be validly
issued, fully paid and nonassessable.
5. The statements made in the Final Supplemented Prospectus under the captions
"Description of the New Stock" and "Certain Terms of the New Stock" constitute
accurate summaries of the terms of the articles of incorporation of the Company
and Preferred Stock in all material respects.
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 paragraph 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 ___________, 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 or
with respect to information set forth in the Final Supplemented Prospectus under
the caption "Certain Terms of the New Stock - 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 Xxxxxx, Xxxxxxxx & Xxxx LLP and Xxxxxxxx Xxxxxxx LLP may
rely on this opinion in giving their opinions pursuant to Section 5 of the
Underwriting Agreement, insofar as such opinions relate to matters of New York
law.
Very truly yours,
XXXXX XXXXXXXXXX LLP
