Exhbit 1
1,600,000 Preferred Securities
Savannah Electric Capital Trust I
(a Delaware Statutory Business Trust)
6.85% Trust Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
December 3, 1998
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the several Underwriters
named in Schedule I hereto
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Savannah Electric Capital Trust I (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
ss. 3801 et seq.), and Savannah Electric and Power Company, a Georgia
corporation (the "Company" and, together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"), with
respect to the sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of 6.85% Trust Preferred
Securities (liquidation amount $25 per preferred security) of the Trust
("Preferred Securities") set forth in Schedule I. The Preferred Securities will
be guaranteed by the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee") pursuant to the
Guarantee Agreement (the "Guarantee Agreement"), dated as of December 1, 1998,
between the Company and The Bank of New York, as trustee (the "Guarantee
Trustee"). The Preferred Securities and the related Guarantee are referred to
herein as the "Securities."
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representatives
deem advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase the $41,237,125
principal amount of Series A 6.85% Junior Subordinated Notes due December 31,
2028 (the "Junior Subordinated Notes") to be issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
Amended and Restated Trust Agreement, dated as of December 1, 1998 (the "Trust
Agreement"), among the Company, as Depositor, Wayne Boston and Nancy
Frankenhauser (the "Administrative Trustees"), The Bank of New York (Delaware),
a Delaware banking corporation (the "Delaware Trustee"), and The Bank of New
York, a New York banking corporation (the "Property Trustee" and, together with
the Delaware Trustee and the Administrative Trustees, the "Trustees"), as
trustees, and the holders from time to time of undivided beneficial interests in
the assets of the Trust. The Junior Subordinated Notes will be issued pursuant
to an indenture, dated as of December 9, 1998, as heretofore supplemented (the
"Base Indenture"), between the Company and The Bank of New York, as trustee (the
"Debt Trustee"), and further supplemented by a first supplemental indenture to
the Base Indenture, dated as of December 1, 1998 (the "Supplemental Indenture,"
and together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and severally
represent and warrant to each Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-46171 and
333-46171-01) in respect of the Preferred Securities, the Guarantee and
the Junior Subordinated Notes has been prepared and filed in accordance
with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to you, and to you for each of the other Underwriters, has
been declared effective by the Commission in such form (except that
copies of the registration statement and any post-effective amendment
delivered to you for each of the other Underwriters need not include
exhibits but shall include all documents incorporated by reference
therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement, included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the 1933
Act, being hereinafter called a "Preliminary Prospectus"); such
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 Preferred Securities, the Guarantee and the
Junior Subordinated 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; the Prospectus as supplemented by a preliminary
prospectus supplement dated November 30, 1998 relating to the Preferred
Securities, including any documents incorporated by reference therein
as of such date, being hereinafter called the "Preliminary Supplemented
Prospectus"; and the Prospectus as amended or supplemented in final
form by a prospectus supplement relating to the Preferred Securities 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(g) 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 neither the Trust nor
the Company makes any warranty or representation to any Underwriter
with respect to: (A) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Trust or
the Company by an Underwriter through you expressly for use in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus; or (B) any information set forth in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus under the
caption "Description of the Preferred Securities-- Book-Entry Only
Issuance-- The Depository Trust Company."
(c) The Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the applicable provisions of the 1933 Act
and the rules and regulations of the Commission thereunder and did 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.
(d) The Registration Statement, the Prospectus and, to the extent not used
to confirm sales of the Securities, the Preliminary Supplemented
Prospectus, comply, and the Final Supplemented Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when any such post-effective amendments are declared
effective or supplements are filed with the Commission, as the case may
be, will comply, in all material respects with the applicable
provisions of the 1933 Act, the 1934 Act, the 1939 Act (hereinafter
defined) and the General Rules and Regulations of the Commission
thereunder and do not and will not, (i) as of the applicable effective
date as to the Registration Statement and any amendment thereto, (ii)
as of the filing date thereof as to the Preliminary Supplemented
Prospectus, and (iii) 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 neither the Company nor the Trust makes any
warranties or representations with respect to (A) that part of the
Registration Statement which shall constitute the Statements of
Eligibility (Form T-1) (collectively, the "Form T-1") under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), (B) statements or
omissions made in the Registration Statement, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing
to the Trust or the Company by an Underwriter expressly for use therein
or (C) any information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities-- Book-Entry Only Issuance--
The Depository Trust Company."
(e) 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.
(f) 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.
(g) 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 not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust.
(h) 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, the Trust Agreement, the
Indenture and the Guarantee Agreement and to purchase, own, and hold
the Common Securities issued by the Trust and to issue and deliver the
Junior Subordinated Notes and the Guarantee.
(i) The Trust has been duly created and is validly existing and in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in
the Registration Statement and Final Supplemented Prospectus and to
enter into and perform its obligations under this Agreement and the
Trust Agreement; the Trust is duly qualified to transact business as a
foreign company and is in good standing in any other jurisdiction in
which such qualification is necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Final
Supplemented Prospectus; the Trust is and will be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Final
Supplemented Prospectus, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; the issuance of the Common Securities is
not subject to preemptive or other similar rights; and, on the Closing
Date (as defined herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(k) This Agreement has been duly authorized, executed and delivered by each
of the Offerors.
(l) The Trust Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company
and the Administrative Trustees, and assuming due authorization,
execution and delivery of the Trust Agreement by the Delaware Trustee
and the Property Trustee, the Trust Agreement will, on the Closing
Date, be a valid and binding obligation of the Company and the
Administrative Trustees, enforceable against the Company and the
Administrative Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting creditors'
rights generally or (2) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity)
(the "Enforceability Exceptions") and will conform in all material
respects to all statements relating thereto in the Final Supplemented
Prospectus; and, on the Closing Date, the Trust Agreement will have
been duly qualified under the 1939 Act.
(m) The Guarantee Agreement has been duly authorized by the Company and, on
the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, the Guarantee Agreement
will, on the Closing Date, constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms except to the extent that enforcement thereof may be limited by
the Enforceability Exceptions, and each of the Guarantee and the
Guarantee Agreement will conform in all material respects to all
statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Guarantee Agreement will have
been duly qualified under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust pursuant to this
Agreement against payment of the consideration set forth herein, will
be validly issued and (subject to the terms of the Trust Agreement)
fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the Trust
Agreement and will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; the
issuance of the Preferred Securities is not subject to preemptive or
other similar rights; (subject to the terms of the Trust Agreement)
holders of Preferred Securities will be entitled to the same limitation
of personal liability under Delaware law as extended to stockholders of
private corporations for profit.
(o) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions; the Indenture will conform in all material respects to all
statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(p) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the 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.
(q) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(r) The Junior Subordinated Notes are subordinated and junior in right of
payment to all Senior Indebtedness (as defined in the Indenture) of the
Company.
(s) Each of the Administrative Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(t) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is and, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(u) The execution, delivery and performance by the Offerors of this
Agreement, the Trust Agreement, the Preferred Securities, the Common
Securities, the Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee and the consummation by the Offerors of the
transactions contemplated herein and therein and compliance by the
Offerors with their respective obligations hereunder and thereunder
shall have been duly authorized by all necessary action (corporate or
otherwise) on the part of the Offerors and do not and will not result
in any violation of the charter or bylaws of the Company, or the Trust
Agreement or related Certificate of Trust and do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Trust or the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Trust or the Company is a party or by which either of them
may be bound or to which any of their properties may be subject (except
for conflicts, breaches or defaults which would not, individually or in
the aggregate, be materially adverse to the Trust or the Company or
materially adverse to the transactions contemplated by this Agreement),
or (B) any existing applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative agency or
other governmental body having jurisdiction over the Trust or the
Company, or any of their respective properties.
(v) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions contemplated in this Agreement, except (A) such as may
be required under the 1933 Act or the rules and regulations thereunder;
(B) such as may be required under the Public Utility Holding Company
Act of 1935, as amended (the "1935 Act"); (C) the qualification of the
Trust Agreement, the Guarantee Agreement and the Indenture under the
1939 Act; (D) the approval of the Georgia Public Service Commission
(the "Georgia Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees
to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in Schedule II hereto, the
number of Preferred Securities set forth in Schedule I opposite the
name of such Underwriter, plus any additional number of Preferred
Securities that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the Preferred Securities shall be an amount
equal to the initial public offering price set forth on Schedule II,
which is a fixed price determined by agreement between the
Representatives and the Offerors. As compensation to the Underwriters
for their commitments hereunder and in view of the fact that the
proceeds of the sale of the Preferred Securities will be used to
purchase the Junior Subordinated Notes of the Company, the Company
hereby agrees to pay on the Closing Date (as defined below) to Salomon
Smith Barney Inc. ("SSB"), for the accounts of the several
Underwriters, a commission per Preferred Security as set forth on
Schedule II for the Preferred Securities to be delivered by the Trust
hereunder on the Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for,
the Preferred Securities shall be made at the offices of Troutman
Sanders LLP, 600 Peachtree Street, N.E., Atlanta, Georgia 30308-2216 at
9:30 A.M., New York time, on December 9, 1998 (unless postponed in
accordance with the provisions of Section 10) or such other time, place
or date as shall be agreed upon by the Representatives, the Trust and
the Company (such time and date of payment and delivery being herein
called the "Closing Date"). Payment shall be made to the Trust by wire
transfer in federal funds at the Closing Date, against delivery to SSB
for the respective accounts of the Underwriters of certificates for the
Preferred Securities to be purchased by them. A single global
certificate for the Preferred Securities shall be registered in the
name of Cede & Co. It is understood that each Underwriter has
authorized SSB, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Preferred Securities
which it has agreed to purchase. SSB, individually and not as a
Representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Preferred Securities to be
purchased by any Underwriter whose check has not been received by the
Closing Date, but such payment shall not relieve such Underwriter from
its obligations hereunder.
The certificate for the Preferred Securities will be
made available for examination by the Representatives not later than
12:00 Noon, New York time, on the last business day prior to the
Closing Date.
On the Closing Date, the Company will pay, or cause
to be paid, the commission payable at such time to the Underwriters
under Section 2(a) hereof by wire transfer payable to SSB in federal
funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and severally
covenants with each Underwriter as follows:
(a) The Offerors, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representatives orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Offerors will deliver to the Underwriters sufficient conformed
copies of the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case without exhibits)
for distribution to each Underwriter and, from time to time, as many
copies of the Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Offerors will furnish the Underwriters with copies of each
amendment and supplement to the Preliminary Supplemented Prospectus and
Final Supplemented Prospectus relating to the offering of the Preferred
Securities in such quantities as the Underwriters may from time to time
reasonably request. If, during the period (not exceeding nine months)
when the delivery of a prospectus shall be required by law in
connection with the sale of any Preferred Securities by an Underwriter
or dealer, any event relating to or affecting the Company, or of which
the Company shall be advised in writing by the Underwriters, shall
occur, which in the opinion of the Company or of Underwriters' counsel
should be set forth in a supplement to or an amendment of the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
as the case may be, in order to make the Preliminary Supplemented
Prospectus or 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
Preliminary Supplemented Prospectus or Final Supplemented Prospectus or
to file under the 1934 Act any document incorporated by reference in
the Preliminary Prospectus or Prospectus in order to comply with the
1933 Act or the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Preferred
Securities and (ii) at its expense, make any such filing or prepare and
furnish to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus
which will supplement or amend the Preliminary Supplemented Prospectus
or 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 Preliminary
Supplemented Prospectus or Final Supplemented Prospectus is delivered,
not misleading or which will effect any other necessary compliance. In
case any Underwriter is required to deliver a prospectus in connection
with the sale of any Preferred Securities after the expiration of the
period specified in the preceding sentence, the Company, upon the
request of such Underwriter, will furnish to such Underwriter, at the
expense of such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final
Supplemented Prospectus, complying with Section 10(a) of the 1933 Act.
During the period specified in the second sentence of this subsection,
the Company will continue to prepare and file with the Commission on a
timely basis all documents or amendments required under the 1934 Act
and the rules and regulations thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing
copies thereof prior to such filing to the Representatives and Dewey
Ballantine LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities and, to the extent required or
advisable, the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws of such states
and the other jurisdictions of the United States as the Representatives
may designate; provided, however, that neither of the Offerors shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a consent to service of process
or to file annual reports or to comply with any other requirements in
connection with such qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) The Offerors will use best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange; if the Preferred
Securities are exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the Junior
Subordinated Notes on any exchange on which the Preferred Securities
are then listed.
(f) During a period of 15 days from the date of this Agreement, neither the
Trust nor the Company will, without the Representatives' prior written
consent, directly or indirectly, sell, offer to sell, grant any option
for the sale of, or otherwise dispose of, any Preferred Securities, any
security convertible into or exchangeable into or exercisable for
Preferred Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes or
equity securities substantially similar to the Preferred Securities
(except for the Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
(g) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representatives of such filing and to confirm such advice in
writing.
SECTION 4. PAYMENT OF EXPENSES. Except as otherwise may be agreed in writing by
the Offerors and the Representatives, the Company will pay all expenses
incidental to the performance of each Offeror's obligations under this
Agreement, including but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificate(s) for
the Preferred Securities to the Underwriters, (iii) the fees and disbursements
of the Company's and the Trust's counsel and accountants, (iv) the qualification
of the Preferred Securities and, to the extent required or advisable, the
Guarantee and the Junior Subordinated Notes, under securities laws in accordance
with the provisions of Section 3(c) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue sky survey (such
fees and disbursements of counsel shall not exceed $3,500), (v) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto and of the Prospectus, the
Preliminary Supplemented Prospectus, the Final Supplemented Prospectus, and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any blue sky survey, (vii) the fee of the National
Association of Securities Dealers, Inc. in connection with its review of the
offering contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Debt Trustee, including the fees and disbursements of counsel
for the Debt Trustee in connection with the Indenture and the Junior
Subordinated Notes, (ix) the fees and expenses of the Delaware Trustee, the
Property Trustee and the Guarantee Trustee, including the fees and disbursements
of counsel for the Delaware Trustee in connection with the Trust Agreement and
the related Certificate of Trust, (x) the fees and disbursements of Delaware
counsel to the Trust, (xi) any fees payable in connection with the rating of the
Preferred Securities and Junior Subordinated Notes, (xii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
applicable, the Junior Subordinated Notes, on the New York Stock Exchange,
(xiii) the cost and charges of any transfer agent or registrar and (xiv) the
cost of qualifying the Preferred Securities with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Preferred Securities, including fees and disbursements of
their counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Preferred Securities are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
and any such supplement, shall have been filed in the manner and within
the time period required by Rule 424.
(b) Any required orders of the Georgia Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Representatives, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
(c) On the Closing Date the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Bouhan, Williams &
Levy LLP, general counsel for the Company, substantially in
the form attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule III-B.
(3) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., Delaware counsel to the Trust, substantially in
the form attached hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of Richards, Layton &
Finger, P.A., Delaware counsel to The Bank of New York
(Delaware), as Delaware Trustee under the Trust Agreement,
substantially in the form attached hereto as Schedule V.
(5) The opinion, dated the Closing Date, of Emmet Marvin & Martin
LLP, counsel to the Property Trustee, the Guarantee Trustee
and the Debt Trustee, substantially in the form attached
hereto as Schedule VI.
(6) The opinion, dated as of the Closing Date, of Dewey Ballantine
LLP, counsel for the Underwriters, substantially in the form
attached hereto as Schedule VII.
(7) 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 Trust or
the Company, whether or not arising in the ordinary course of
business, and the Representatives shall have received a
certificate of the President or any Vice President of the
Company and a certificate of the Administrative Trustees of
the Trust, and dated as of the Closing Date, to the effect
that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though
expressly made at and as of the Closing Date, (iii) the Trust
and the Company have complied with all agreements and
satisfied all conditions on their respective parts to be
performed or satisfied under the Agreement 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.
(8) On this Closing Date, the Representatives shall have received
from Arthur Andersen LLP a letter dated the Closing Date to
the effect that: (A) they are independent public accountants
with respect to the Company within the meaning of the 1933 Act
and the rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements and schedules audited by
them and incorporated by reference in the Prospectus comply as
to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and
the rules and regulations under the 1933 Act and the 1934 Act;
(C) they have performed certain limited procedures 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) reading the unaudited financial statements,
if any, of the Company incorporated in the Prospectus and
agreeing the amounts therein with the Company's accounting
records; (iii) making inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters regarding whether the unaudited financial statements,
if any, incorporated in the Prospectus (a) are in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements incorporated in the Prospectus and (b)
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; (iv) reading the unaudited
amounts for Operating Revenues, Income Before Interest Charges
and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to
Fixed Charges Plus Preferred Dividend Requirements (Pre-Income
Tax Basis), which amounts shall include such amounts for the
latest period subsequent to that covered by the financial
statements incorporated by reference in the Prospectus for
which such amounts are available at the time this agreement
becomes effective; (v) reading the unaudited financial
statements from which the amounts and ratios described in (iv)
were derived and agreeing the amounts therein to the Company's
accounting records; (vi) making inquiries of certain officials
of the Company who have responsibility for financial and
accounting matters regarding whether (a) the unaudited amounts
and ratios referred to in (iv) above and the unaudited and the
unaudited financial statements referred to in (v) above are
stated on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus and (b) as of a
specified date not more than five business days prior to the
date of delivery of such letter, there has been any change in
the capital stock or long-term debt of the Company or any
decrease in net assets as compared with amounts shown in the
latest audited balance sheet incorporated in the Prospectus,
except in each case for changes or decreases which (I) the
Prospectus discloses have occurred or may occur, (II) are
occasioned by the declaration of dividends, (III) are
occasioned by draw-downs 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, or (VI) are disclosed in such letter; (vii)
reading the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis) for any period subsequent
to those set forth in (iv) above, which if available shall be
set forth in such letter; (viii) reading the unaudited
financial statements from which the amounts and ratios
described in (vii) above were derived and which will be
attached to such letter and agreeing the amounts therein to
the Company's accounting records; and (ix) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether the
unaudited amounts and ratios referred to in (vii) above and
the unaudited financial statements referred to in (viii) above
are stated on a basis substantially consistent with that of
the corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus; and (D) reporting
their findings as a result of performing the limited
procedures set forth in (C) above. It is understood that the
foregoing procedures do not constitute an audit performed in
accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly
that Arthur Andersen LLP make no representations as to the
sufficiency of such procedures for the several Underwriters'
purposes.
(9) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Preferred Securities as
herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Offerors in
connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in
form and substance to the Representatives and Dewey Ballantine
LLP, counsel for the Underwriters.
(10) On the Closing Date, the Preferred Securities shall have been
approved for listing on the New York Stock Exchange upon
notice of issuance.
(11) On the Closing Date, the Representatives shall have received a
certificate of a Vice President of the Company certifying that
a Special Event (as defined in the Final Supplemented
Prospectus) shall not have occurred and be continuing.
(12) That no amendment or supplement to the Registration Statement,
the Preliminary Supplemented Prospectus 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 Exchange Act) shall be
unsatisfactory in form to Dewey Ballantine LLP or shall
contain information (other than with respect to an amendment
or supplement relating solely to the activity of any
Underwriter or Underwriters) which, in the reasonable judgment
of the Representatives, shall materially impair the
marketability of the Preferred Securities.
(13) The Company and the Trust shall have performed their
respective obligations when and as provided under this
Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Offerors at any time prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
The obligations of the Offerors shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to indemnify and hold harmless
each of the Underwriters and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, 1934 Act or otherwise, and to reimburse the
Underwriters and such controlling person or persons, if any, for any
legal or other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages, 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, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus or, if
the Offerors shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13
or 14 of the 1934 Act which are incorporated therein by reference, in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
the Preliminary Supplemented 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, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by, or through the
Representatives on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary Prospectus,
the Prospectus, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus, if the Offerors shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account
of any losses, claims, damages, liabilities or actions arising from the
sale of the Preferred Securities to any person if a copy of the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented
Prospectus, or the Final Supplemented Prospectus (exclusive of
documents incorporated therein by reference pursuant to Item 12 of Form
S-3), as the same may then be amended or supplemented, shall not have
been sent or given by or on behalf of such Underwriter to such person
with or prior to the written confirmation of the sale involved and the
untrue statement or alleged untrue statement or omission or alleged
omission was corrected in the Preliminary Prospectus, the Prospectus,
the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus as supplemented or amended at the time of such confirmation.
Each Underwriter agrees, within ten days after the receipt by it of
notice of the commencement of any action in respect of which indemnity
may be sought by it, or by any person controlling it, from the Offerors
on account of their agreement contained in this Section 7, to notify
the Offerors in writing of the commencement thereof but the omission of
such Underwriter so to notify the Offerors of any such action shall not
release the Offerors from any liability which they may have to such
Underwriter or to such controlling person otherwise than on account of
the indemnity agreement contained in this Section 7. In case any such
action shall be brought against the Underwriters or any such person
controlling such Underwriters and such Underwriter shall notify the
Offerors of the commencement thereof as above provided, the Offerors
shall be entitled to participate in (and, to the extent that they shall
wish, including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect to direct
such defense and select such counsel, any Underwriter or controlling
person shall have the right to employ its own counsel, but, in any such
case, the fees and expenses of such counsel shall be at the expense of
such Underwriter or controlling person unless the employment of such
counsel has been authorized in writing by the Offerors in connection
with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have
any liability or responsibility in respect of the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim effected without its prior
written consent.
(b) The Company agrees to indemnify the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under
Section 7(a) hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who
have signed the Registration Statement, the Trust and each other
Underwriter and each person, if any, who controls the Offerors or any
such other Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act to the same extent and upon the same
terms as the indemnity agreement of the Offerors set forth in Section
7(a) hereof, but only with respect to alleged untrue statements or
omissions made in the Registration Statement, the Preliminary
Prospectus, the Prospectus, the Preliminary Supplemented 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 Offerors by, or through the Representatives
on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representatives may terminate this Agreement, by notice to the
Offerors, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally
suspended, (ii) minimum or maximum ranges for prices shall have been
generally established on the New York Stock Exchange by the Commission
or by the New York Stock Exchange, (iii) a general banking moratorium
shall have been declared by federal or New York State authorities, (iv)
there shall have occurred any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by the United States Congress or any other substantial national or
international calamity or emergency affecting the United States, in any
such case provided for in clauses (i) through (iv) with the result
that, in the reasonable judgement of the Representatives, the
marketability of the Preferred Securities shall have been materially
impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part
of the Offerors to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Offerors shall
be unable to perform their obligations under this Agreement, then in
any such case, the Company will reimburse the Underwriters, severally,
for the reasonable fees and disbursements of Dewey Ballantine LLP and
for the out of pocket expenses (in an amount not exceeding $10,000)
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Preferred Securities and, upon such
reimbursement, the Offerors shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
Preferred Securities, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the Preferred
Securities, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Offerors shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to SSB at Seven World Trade Center, New York, New York 10048,
Attention: Syndicate Department; notices to the Offerors shall be directed to
the Company via U.S. mail at 600 Bay Street East, Savannah, Georgia 31401,
Attention: Corporate Secretary, with a copy to Southern Company Services, Inc.,
270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention: Charles N.
Eldred.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred to in Section
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Trust and
the Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except as otherwise set forth
herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
SAVANNAH ELECTRIC AND POWER COMPANY
By:_______________________________________
Title:_____________________________________
SAVANNAH ELECTRIC CAPITAL TRUST I
By: Savannah Electric and Power Company,
as Depositor
By:_______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
SALOMON SMITH BARNEY INC.
THE ROBINSON-HUMPHREY COMPANY, LLC
As representatives of the other several Underwriters
named in Schedule I hereto
By: SALOMON SMITH BARNEY INC.
By:_________________________________________
Name:
Title:
SCHEDULE I
NUMBER OF
NAME OF UNDERWRITER PREFERRED SECURITIES
Salomon Smith Barney Inc. 700,000
The Robinson-Humphrey Company, LLC 700,000
J.C. Bradford & Co. 20,000
EVEREN Securities, Inc. 20,000
Interstate/Johnson Lane Corporation 20,000
Legg Mason Wood Walker, Incorporated 20,000
Morgan Keegan & Company, Inc. 20,000
Muriel Siebert & Co., Inc. 20,000
Raymond James & Associates, Inc. 20,000
Regions Investment Company, Inc. 20,000
Utendahl Capital Partners, L.P. 20,000
Wheat First Securities, Inc. 20,000
-------------
Total 1,600,000
SCHEDULE II
===============================================================================
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security to be paid by the Company to the several
Underwriters in respect of their commitments: $.25 for Preferred Securities sold
to certain institutions; $.7875 for Preferred Securities sold to other
purchasers.
Schedule III-A
[Letterhead of BOUHAN, WILLIAMS & LEVY LLP]
___________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
SAVANNAH ELECTRIC CAPITAL TRUST I
_.__% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as general counsel to Savannah Electric and
Power Company (the "Company") in connection with (i) its formation of Savannah
Electric Capital Trust I (the "Trust"), a Delaware statutory business trust,
pursuant to the amended and restated trust agreement dated as of __________ __,
199_ among the Company and the trustees named therein (the "Trust Agreement");
(ii) the Trust's issuance and sale of __% Trust Preferred Securities evidencing
approximately 97% undivided interest in the assets of the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately 3% undivided interest in the assets of the Trust; (iv)
the Company's issuance and sale to the Trust of $___,___,___ aggregate principal
amount of its Series __ _.__% Junior Subordinated Notes due ______, 20__ (the
"Notes") pursuant to a Subordinated Note Indenture dated as of ___________ __,
199_, by and between the Company and The Bank of New York, as trustee, as
heretofore supplemented and as further supplemented by the First Supplemental
Indenture dated as of ________ __, 199_ (collectively, the "Indenture"); and (v)
its issuance of a guarantee (the "Guarantee") of the Preferred Securities
pursuant to a Guarantee Agreement dated as of _________ __, 199_ (the "Guarantee
Agreement") between the Company and The Bank of New York (Delaware), as trustee.
The Preferred Securities are being sold to you today pursuant to the terms of an
Underwriting Agreement dated _______, 199_ (the "Underwriting Agreement"), among
the Company, the Trust and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representatives. This opinion is
being delivered to you as Representatives 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. 333-46171, and 333-46171-01)
pertaining to the Preferred Securities (the "Registration Statement") filed by
the Company and the Trust under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act, and the prospectus of the Company
and the Trust dated _______ ___, 199_ as supplemented by a final prospectus
supplement dated __________, 199_ filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Act (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, 1997,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998 and the Current Reports on Form
8-K of the Company dated February 11, 1998, March 9, 1998 and December __, 1998
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated hereof rendered to you by Dewey Ballantine
LLP, as to matters of Delaware law upon the opinion dated hereof rendered to you
by Richards, Layton & Finger, P.A. that:
1. The Company has been duly organized and is validly existing as a corporation
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, 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 delivery of the Notes and the Guarantee by the Company and the issuance and
sale of the Preferred Securities by the Trust have been obtained; such orders
are sufficient for the issuance and the delivery of the Notes by the Company and
the issuance and sale of the Preferred Securities by the Trust; the issuance and
delivery of the Notes and the Guarantee by the Company and the issuance and sale
of the Preferred Securities by the Trust conform in all material respects with
the terms of such orders; and no other order, consent or other authorization or
approval of any Georgia or United States governmental body (other than in
connection or in compliance with the provisions of the securities or "blue sky"
laws of any jurisdiction, as to which we express no opinion) is legally required
for the issuance and delivery of the Notes and the Guarantee by the Company and
the issuance and sale of the Preferred Securities by the Trust in accordance
with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Guarantee Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Guarantee Agreement conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
7. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery thereof by the
trustees named therein, the Trust Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditor's rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the Trust Agreement has
been duly qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
9. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
10. To the best of our knowledge, all of the issued and outstanding Common
Securities of the Trust are directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
11. The execution, delivery and performance by the Trust of the Underwriting
Agreement and the Trust Agreement; the issuance by the Trust of the Preferred
Securities and the Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the Trust with its
obligations thereunder do not and will not result in any violation of the Trust
Agreement or related Certificate of Trust, and do not and will not conflict
with, or result in, a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by which it may be bound
or to which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise) of the Trust,
(B) any existing applicable law, rule or regulation applicable to the Trust
(other than the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) or (C) any judgment, order or decree known to us of any
government, governmental instrumentality, or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties; and the Trust is not a
party to or otherwise bound by any agreement other than those which, or the
forms of which, are exhibits (or included in exhibits) to the Registration
Statement.
12. The Common Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when issued and delivered by the
Trust to the Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; and the issuance of
the Common Securities is not subject to preemptive or other similar rights.
13. The Preferred Securities have been duly authorized by the Trust Agreement
and (subject to the terms of the Trust Agreement), when delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable beneficial interests in the assets of the
Trust; the holders of the Preferred Securities will (subject to the terms of the
Trust Agreement) be entitled to the same limitation of personal liability under
Delaware law as is extended to stockholders of private corporations for profit
organized under the general corporation law of the State of Delaware; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and the Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
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,
5, 6, and 13 above and in the Final Supplemented Prospectus in the second
paragraph under the caption "Experts". 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 and with
representatives of Arthur Andersen LLP and 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) contains any untrue statement
therein of a material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents or
with respect to the information contained in the Final Supplemented Prospectus
under the caption "Description of the Preferred Securities -- 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 laws of the States of Delaware and 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.
Yours very truly,
BOUHAN, WILLIAMS & LEVY LLP
Schedule III-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
SAVANNAH ELECTRIC CAPITAL TRUST I
_.__% TRUST PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Savannah Electric and Power
Company (the "Company") in connection with (i) its formation of Savannah
Electric Capital Trust I, a Delaware statutory business trust (the "Trust"),
pursuant to the amended and restated trust agreement dated __________, 199_
among the Company and the trustees named therein (the "Trust Agreement"); (ii)
the Trust's issuance and sale of Trust Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common Securities
evidencing approximately a 3% undivided interest in the Trust; (iv) the
Company's issuance and sale to the Trust of $___________ of its Series __ ___%
Junior Subordinated Notes (the "Notes") pursuant to a Subordinated Note
Indenture dated as of __________, 199_, by and between the Company and The Bank
of New York, as trustee, as heretofore supplemented and as further supplemented
by the First Supplemental Indenture dated as of __________ __, 199_
(collectively, the "Indenture"); and (v) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of __________, 199_ (the "Guarantee Agreement")
between the Company and The Bank of New York, as trustee. The Preferred
Securities are being sold to you today pursuant to the terms of an Underwriting
Agreement dated __________, 199_ (the "Underwriting Agreement"), among the
Company, the Trust and the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representatives. This opinion is
being delivered to you as Representatives 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. 333-46171 and 333-46171-01)
pertaining to the Preferred Securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated _______ ___, 199_ as supplemented by a final prospectus supplement dated
__________, 199_ (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, 1997, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended March 31, 1998, June 30, 1998 and September
30, 1998 and the Current Reports on Form 8-K of the Company dated February 11,
1998, March 9, 1998 and December __, 1998 (the "Exchange Act Documents"), each
as filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and the
Underwriting Agreement are herein referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP and relying as to matters of Delaware law upon the opinion dated
the date hereof rendered to you by Richards, Layton & Finger, P.A., 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 delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Georgia or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Guarantee Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Guarantee Agreement conforms as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the Trust Agreement has
been duly qualified under the Trust Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
9. The Preferred Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable undivided beneficial interests in the assets of the
Trust; and the Preferred Securities conform as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
10. The statements and legal conclusions contained in the Final Supplemented
Prospectus under the caption "Certain Federal Income Tax Considerations" are
correct 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 paragraphs 4,
5, 6, 9 and 10 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 Arthur
Andersen 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) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents or with respect to the
information contained in the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities -- 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 States of Delaware and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Dewey Ballantine LLP may rely on this opinion
in giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinions relate to matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER, P.A.]
__________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Re: Savannah Electric Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Savannah
Electric and Power Company, a Georgia corporation (the "Company"), and Savannah
Electric Capital Trust I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. This opinion is being furnished to you
pursuant to Section 5(c)(3) of the Underwriting Agreement, dated __________,
199_ (the "Underwriting Agreement"), among the Company, the Trust, you and the
other Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated __________,
199_ (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on _________, 199_;
(b) The Trust Agreement of the Trust, dated as of _________,
199_, among the Company and the trustee of the Trust named therein;
(c) The Amended and Restated Trust Agreement, dated as of
_________, 199_ (including Exhibits C and E), among the Company, the trustees of
the Trust named therein, and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (the "Trust Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated __________ __, 199_ (the
"Prospectus"), as supplemented by the Prospectus Supplement dated __________,
199_ (the "Prospectus Supplement"), relating to the __% Trust Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust, dated ___________ __,
199_, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, 12 Del.
C. ss. 3801, et seq. (the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made.
2. Under the Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (i) own property and conduct its
business, all as described in the Prospectus and the Prospectus Supplement, (ii)
execute and deliver, and to perform its obligations under, the Underwriting
Agreement, (iii) issue and perform its obligations under the Trust Securities,
and (iv) perform its obligations under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust
Agreement and will be duly and validly issued undivided beneficial interests in
the assets of the Trust. Subject to the qualifications set forth in paragraph 6
below, the Preferred Securities are fully paid and nonassessable undivided
beneficial interests in the assets of the Trust. Under the Business Trust Act
and the Trust Agreement, the Trust Securities are not subject to any preemptive
or other similar rights.
4. Under the Business Trust Act and the Trust Agreement, the
Underwriting Agreement has been duly authorized by all necessary trust action on
the part of the Trust.
5. No authorization, approval, consent or order of any
Delaware court or Delaware governmental authority or Delaware agency is required
to be obtained by the Trust solely as a result of the issuance and sale of the
Preferred Securities.
6. The Persons to whom Preferred Securities are to be issued
by the Trust (collectively, the "Preferred Security Holders"), as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Preferred Security Holders may be obligated, pursuant to the Trust Agreement, to
(i) provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Preferred Securities
Certificates and the issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
7. The Trust Agreement constitutes a valid and binding
obligation of the Company, and is enforceable against the Company, in accordance
with its terms.
8. The issuance and sale by the Trust of the Trust Securities,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and compliance by the Trust with
its obligations thereunder do not violate (i) any of the provisions of the
Certificate or the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the
caption "The Trusts" and the statements in the Prospectus Supplement under the
caption "Savannah Electric Capital Trust I" and, insofar as they contain
statements of Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification. In
addition, in connection with the opinion expressed in paragraph 7 above, to the
extent that Section 10.05 of the Trust Agreement provides that the Trust
Agreement is governed by New York law, we express no opinion concerning Section
10.05 of the Trust Agreement or the effect of Section 10.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion, in connection with the Underwriting Agreement. We consent to the
law firms of Bouhan, Williams & Levy LLP, Troutman Sanders LLP and Dewey
Ballantine LLP relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to the Underwriting
Agreement. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER, P.A.
Schedule V
[Letterhead of Richards, Layton & Finger, P.A.]
__________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Savannah Electric and Power Company
600 Bay Street East
Savannah, Georgia 31401
Savannah Electric Capital Trust I
c/o Savannah Electric and Power Company
600 Bay Street East
Savannah, Georgia 31401
Re: Savannah Electric Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York (Delaware), a
Delaware banking corporation ("BONY"), solely for purposes of delivering this
opinion, in connection with the formation of Savannah Electric Capital Trust I,
a business trust existing under the laws of the State of Delaware (the "Trust")
pursuant to the Trust Agreement, dated __________, 199_, by and between BONY,
not in its individual capacity but solely as trustee (the "Delaware Trustee"),
and Savannah Electric and Power Company (the "Company"), as amended and restated
pursuant to an Amended and Restated Trust Agreement dated as of __________ __,
199_, among the Company, the Delaware Trustee, the other trustees named therein
and the holders from time to time of the undivided beneficial interests in the
assets of the Trust (collectively, the "Trust Agreement"). This opinion is being
delivered to you pursuant to Section 5(c)(4) of the Underwriting Agreement,
dated ___________ __, 199_ (the "Underwriting Agreement"), among the several
Underwriters named in Schedule I thereto, Savannah Electric and Power Company
and the Trust, pursuant to which the $___,___,___ ___% Trust Preferred
Securities of the Trust will be sold. All capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Trust
Agreement, except that reference herein to any document shall mean such document
as is in effect on the date hereof.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of BONY as we have deemed
necessary or appropriate for the purposes of the opinions expressed herein.
Moreover, as to certain facts material to the opinions expressed herein, we have
relied upon the accuracy of representations and warranties contained in the
documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. BONY is duly incorporated and is validly existing in good
standing as a banking corporation under the laws of the State of Delaware and
has the power and authority to execute, deliver and perform its obligations
under the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and
delivered by BONY and constitutes a legal, valid and binding obligation of BONY,
enforceable against BONY, in accordance with its terms.
3. The execution and delivery of, and performance of the terms
of, the Trust Agreement by BONY, does not conflict with or constitute a breach
of, or default under, the articles of organization or by-laws of BONY.
4. No consent, approval or authorization of, or registration,
declaration or filing with, any Delaware court or Delaware governmental
authority is required under Delaware law for the execution, delivery or
performance by BONY of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of Delaware and
we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of BONY (except that we express no opinion with respect
to (i) state securities or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, and the Investment Company Act of 1940, as amended), and we have not
considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, fraudulent transfer or conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity (regardless of whether considered and applied in a proceeding in equity
or at law), and (iii) the effect of federal or state securities laws on the
enforceability of provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than BONY, of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
BONY) on documents examined by us are genuine, that all documents submitted to
us as originals are authentic, and that all documents submitted to us as copies
or specimens conform with the originals, which facts we have not independently
verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
Schedule VI
[Letterhead of EMMET MARVIN & MARTIN LLP]
__________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Savannah Electric and Power Company
600 Bay Street East
Savannah, Georgia 31401
Savannah Electric Capital Trust I
c/o Savannah Electric and Power Company
600 Bay Street East
Savannah, Georgia 31401
Savannah Electric Capital Trust I
_.__% Trust Preferred Securities
Dear Sirs:
We have acted as counsel to The Bank of New York (the "Bank")
in connection with (a) the Subordinated Note Indenture, dated as of December 1,
1998, as heretofore supplemented (the "Original Indenture"), between Savannah
Electric and Power Company (the "Company") and the Bank, as Trustee, (b) the
First Supplemental Indenture dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee, (c) the Guarantee Agreement dated as of __________ ______, 199_ (the
"Guarantee Agreement"), between the Company, as Guarantor and the Bank, as
Trustee, and (d) the Amended and Restated Trust Agreement, dated as of _________
______, 199_ (the "Trust Agreement") among the Company, the Bank, as Property
Trustee, The Bank of New York Delaware, as Delaware Trustee, and _________ and
________, as Administrative Trustees.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture, the Trust Agreement,
the Guarantee Agreement and certain resolutions adopted by the Board of
Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing as a
banking corporation in good standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and authority to execute,
deliver and perform its duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered the Indenture, the Trust
Agreement and the Guarantee Agreement, and, insofar as the laws governing the
trust powers of the Bank are concerned and assuming due authorization, execution
and delivery thereof by the other parties thereto, each of the Indenture, the
Trust Agreement and the Guarantee Agreement constitutes a legal, valid and
binding agreement of the Bank, enforceable against the Bank in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether such enforceability is considered in a
proceeding in equity or at law.
iii) the execution, delivery and performance by the Bank of the
Indenture, the Trust Agreement and the Guarantee Agreement do not conflict with
or constitute a breach of the charter or bylaws of the Bank.
iv) no approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture, the Trust
Agreement or the Guarantee Agreement or the performance by the Bank of its
duties thereunder, except such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
-----------------------
Schedule VII
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 199_
Salomon Smith Barney Inc.
The Robinson-Humphrey Company, LLC
As representatives of the other several Underwriters
c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
SAVANNAH ELECTRIC CAPITAL TRUST I
_.__% Trust Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Savannah Electric and
Power Company (the "Company") of Savannah Electric Capital Trust I (the
"Trust"), a Delaware statutory business trust, pursuant to the amended and
restated trust agreement dated __________, 199_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the Trust's issuance and
sale of Trust Preferred Securities evidencing approximately a 97% undivided
interest in the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of Common Securities evidencing approximately a 3% undivided interest
in the Trust; (iv) the Company's issuance and sale to the Trust of $___________
of its Series __ ___% Junior Subordinated Notes (the "Notes") pursuant to a
Subordinated Note Indenture dated as of January 1, 1997, by and between the
Company and The Bank of New York, as trustee, as heretofore supplemented and as
further supplemented by the Third Supplemental Indenture dated as of __________
__, 199_ (collectively, the "Indenture"); and (v) the Company's issuance of a
guarantee (the "Guarantee") of the Preferred Securities pursuant to a Guarantee
Agreement dated as of __________, 199_ (the "Guarantee Agreement") between the
Company and The Bank of New York, as trustee, we have acted as counsel to you
and the other underwriters named in the Schedule I (the "Underwriters") of the
Underwriting Agreement dated __________ __, 199_, among the Company, the Trust
and the Underwriters for whom you are acting as Representatives (the
"Underwriting Agreement"). This opinion is being delivered to you as
Representatives pursuant to Section 5(c)(6) 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. 333-46171 and 333-46171-01)
pertaining to the Preferred Securities (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated ________, 1998, as supplemented by a final supplemental prospectus dated
December __, 1998, 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,
1997, the Quarterly Reports on Form 10-Q of the Company for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998 and the Current Reports on
Form 8-K of the Company, dated February 11, 1998, March 9, 1998 and December __,
1998 (the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and the
Underwriting Agreement are herein referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the State of Georgia upon the opinion of Troutman Sanders LLP dated the
date hereof and addressed to you, and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Delaware upon the opinion
of Richards, Layton & Finger, P.A., dated the date hereof and addressed to you
and a form of which is attached as Schedule IV to the Underwriting Agreement,
that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Georgia and has due corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties used by it in such
business and to enter into and perform its obligations under the Agreements and
the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally required for
the issuance and delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such orders are sufficient
for the issuance and delivery of the Notes and the Guarantee and the issuance
and sale of the Preferred Securities; the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred Securities conform in
all material respects with the terms of such orders; and no other order, consent
or other authorization or approval of any Georgia or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Debt Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Debt Trustee in the manner provided in
the Indenture and delivered against payment therefor, will constitute valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Guarantee Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally or general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); and the Guarantee Agreement conforms as to legal matters
in all material respects to the description thereof in the Final Supplemented
Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the
Trust Indenture has been duly qualified under the Trust Indenture Act of 1939,
as amended.
8. The Preferred Securities have been duly authorized by the
Trust Agreement and (subject to the terms of the Trust Agreement), when
delivered to and paid for the Underwriters pursuant to the Underwriting
Agreement, will be validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
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,
5, 6 and 8 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 Arthur Andersen 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) contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents or with respect to the
information contained in the Final Supplemented Prospectus under the caption
"Description of the Preferred Securities -- 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 laws of the States of Delaware and Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Bouhan, Williams and Levy LLP and Troutman Sanders LLP may
rely on this opinion in giving their opinions pursuant to Section 5(c) of the
Underwriting Agreement, and Troutman Sanders LLP may rely on this opinion in
giving their opinion pursuant to Sections 102, 302 and 904 of the Indenture,
insofar as such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP