SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 23, 1996
SAVANNAH ELECTRIC AND POWER COMPANY
(Exact name of registrant as specified in its charter)
Georgia 1-5072 58-0418070
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
600 Bay Street, East, Savannah, Georgia 31401
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (912)232-7171
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On May 23, 1996, Savannah Electric and Power Company (the "Company")
entered into a Purchase Contract covering the issue and sale of $20,000,000
aggregate principal amount of First Mortgage Bonds, 6.90% Series due May 1,
2006. Said First Mortgage Bonds were registered under the Securities Act of
1933, as amended, pursuant to the Company's shelf registration statement
(Registration Statement No. 33-52509).
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Form of Proposal for the Purchase of
$20,000,000 aggregate principal amount
of First Mortgage Bonds, 6.90% Series
due May 1, 2006, dated May 23, 1996,
between the Company and the Purchaser
named therein, with Purchase Contract
attached thereto.
4 Supplemental Indenture, dated as of May 1,
1996, between the Company and
The Bank of New York, as Trustee.
12 Computation of ratio of earnings to
fixed charges for the five years ended
December 31, 1995, and the twelve months
ended April 30, 1996.
23 Consent of Bouhan, Williams & Levy LLP.
25 Statement on Form T-1 of The Bank of New York, as Trustee.
26(a) Notice of Invitation for Proposals.
26(b) Terms and Conditions Relating to Proposals.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 28, 1996 SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/ Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
Furman Selz LLC
Name of Bidder
FORM OF PROPOSAL
For Purchase of
SAVANNAH ELECTRIC AND POWER COMPANY
FIRST MORTGAGE BONDS
Dated: May 23, 1996
SAVANNAH ELECTRIC AND POWER COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Dear Sirs:
Referring to the terms and conditions dated May 16, 1996 (the "Terms
and Conditions"), relating to proposals for the purchase of First Mortgage Bonds
(the "Bonds") of Savannah Electric and Power Company (the "Company"), and the
notice dated the date hereof (the "Notice") given by the Company pursuant
thereto, the persons, firms and corporations named in Exhibit A attached hereto
(the "Bidders") have submitted and confirm herewith the following proposal for
the purchase of $20,000,000 principal amount of the Bonds, as designated by the
Company in the Notice (the "Designated Principal Amount"):
1. The interest rate of the Bonds shall be 6.90% per annum.
The interest rate must be an integral multiple of .01% or 1/8 of 1%.
2. The price to be paid to the Company for the Bonds shall be
98.717% of the Designated Principal Amount thereof, plus accrued
interest from the first day of the calendar month during which the
Bonds are issued to the date of payment and delivery, each of the
Bidders hereby offering, severally and not jointly, to purchase from
the Company, at said price and upon the terms and conditions set forth
in the form of purchase contract attached hereto as Exhibit B (the
"Purchase Contract"), the principal amount of Bonds set forth opposite
its name in Exhibit A attached hereto, or the principal amount of Bonds
to be set forth opposite its name in Exhibit A attached hereto as
provided in Section 3 of the Terms and Conditions, which together
aggregate the Designated Principal Amount of the Bonds. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth
in the Terms and Conditions that, subject to the provisions thereof,
the Company will accept the proposal which results in the lowest
"annual cost of money" to it for the Bonds, each of the Bidders agrees
(a) that the offer of such Bidder included in this proposal shall be
irrevocable until three hours after the time fixed for the submission
of proposals, unless sooner rejected by the Company; (b) that, if this
proposal shall be accepted in writing by the Company, such Bidder,
either in person or by the Representative(s) on its behalf, will
forthwith furnish
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to the Company in writing the information referred to in Section 8 of
the Terms and Conditions; and (c) that, if this proposal shall be so
accepted by the Company, the Purchase Contract shall thereupon become
effective without any separate execution thereof and shall constitute
the agreement between the Company and the Bidders and, upon performance
by the Bidders, and the Representative(s), of their obligations under
Sections 3, 4 and 8 of the Terms and Conditions, all rights of the
Company and of the Bidders shall be determined solely in accordance
with the terms thereof, subject, however, to such modifications therein
(including Exhibit A to the Form of Proposal) as may be necessary and
as are contemplated by the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company
in its entirety within three hours after the time fixed for the
submission thereof.
5. This proposal may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in
respect of the Bonds furnished by the Company to the Bidders pursuant to the
last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
Furman Selz LLC
Michael J. Forte
Managing Director
On behalf of and as Representative(s)
of the persons, firms and corporations
named in Exhibit A hereto.
230 Park Avenue
New York, New York 10169
Address
Accepted:
SAVANNAH ELECTRIC AND POWER COMPANY
By: Wayne Boston
Title: Assistant Secretary
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EXHIBIT A
The names of the Bidders and the respective principal amounts of the
Bonds which they severally offer to purchase are as follows:
Name Principal Amount
Furman Selz LLC $20,000,000
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EXHIBIT B
SAVANNAH ELECTRIC AND POWER COMPANY
PURCHASE CONTRACT
For Purchase of First Mortgage Bonds of the Company
AGREEMENT made between Savannah Electric and Power Company, a
corporation organized and existing under the laws of the State of Georgia (the
"Company"), party of the first part, and the several persons, firms and
corporations (the "Purchasers") named as Bidders in Exhibit A to the Form of
Proposal to which this agreement is attached as Exhibit B (the "Form of
Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated
Principal Amount (as defined in the Form of Proposal) of its First Mortgage
Bonds (the "Bonds"), to be issued under and secured by the Indenture of Mortgage
dated as of March 1, 1945, as supplemented and as to be supplemented (the
"Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee"), and to bear interest at the rate per annum specified in paragraph 1
of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing
the Form of Proposal (the "Representative") to execute the Form of Proposal on
behalf of the respective Purchasers and to act for the respective Purchasers in
the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement or statements and prospectus or prospectuses relating to the Bonds,
and such registration statement or statements has or have become effective (such
registration statement or statements, as it or they became effective, including
the exhibits thereto and all documents incorporated by reference in the
prospectus or prospectuses at such time or times pursuant to Item 12 of Form
S-3, each being herein called the "Registration Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form
of Proposal (such prospectus, including all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of
the Form of Proposal, being herein called the "Bidding Prospectus") is to be
supplemented by a prospectus supplement (the "Prospectus Supplement"), including
certain information relating to the Purchasers, the price and the terms of
offering, the interest rate, maturity date and redemption provisions of the
Bonds (the Bidding Prospectus as supplemented by the Prospectus Supplement being
herein called the "Prospectus").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set forth,
the Company agrees to sell to the respective Purchasers, severally and not
jointly, and the respective Purchasers, severally and not jointly, agree to
purchase from the Company, at the price specified in paragraph 2 of the Form of
Proposal, plus accrued interest from the first day of the calendar month during
which
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the Bonds are issued to the date of payment and delivery, the respective
principal amounts of Bonds set opposite their names in Exhibit A to the Form of
Proposal, which together aggregate the Designated Principal Amount of the Bonds.
2. Payment and Delivery: Payment for the Bonds shall be made to the
Company or its order in federal funds or in other funds which are, as shown by
written evidence satisfactory to the Company, immediately available at the time
of purchase, at the office of Troutman Sanders LLP, 600 Peachtree Street, N.E.,
Suite 5200, Atlanta, Georgia (or at such other place as may be agreed upon by
the Representative and the Company), upon the delivery of the Bonds to the
Representative for the respective accounts of the Purchasers against receipt
therefor signed by the Representative on behalf of itself and as agent for the
other Purchasers. Such payment and delivery shall be made at 10 a.m. New York
Time on the seventh day (which shall be a full business day) after this
agreement becomes effective (or at such other time or on such other day as may
be agreed upon by the Representative and the Company), unless postponed in
accordance with the provisions of Section 7 hereof. The time at which payment
and delivery are to be made is herein sometimes called the "time of purchase".
Delivery of definitive Bonds is expected to be made in registered form
without coupons in denominations of $1,000 and multiples thereof, registered in
such name or names as the Representative may request not later than 10 a.m. New
York Time on the third business day prior to the time of purchase, or, if no
such request is received, in the names of the respective Purchasers in
denominations selected by the Company. If the Representative shall request that
any of the Bonds be registered in a name or names other than that of the
Purchaser agreeing to purchase such Bonds, such Purchaser shall pay any transfer
taxes resulting from such request. The Company agrees to make the Bonds
available for inspection by the Representative at the office of the Trustee at
least 20 hours prior to the time of purchase. In the event that it becomes
necessary to make initial delivery of the Bonds in temporary form, such Bonds
will be exchangeable at said office of the Trustee, upon request, for definitive
fully registered Bonds of authorized denominations without charge to the holders
thereof as soon as is reasonably practicable.
3. Conditions of Purchasers' Obligations: The several obligations of
the Purchasers hereunder are subject to the accuracy of the warranties and
representations on the part of the Company herein contained and to the following
other conditions:
(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Bonds and the legal opinions
provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory
in form and substance to Dewey Ballantine, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine:
(1) Opinion of Bouhan, Williams & Levy LLP, of
Savannah, Georgia, general counsel to the Company,
substantially in the form attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta,
Georgia, counsel to the Company, substantially in the form
attached hereto as Exhibit 2.
(3) Opinion of Dewey Ballantine, of New York, New
York, substantially in the form attached hereto as Exhibit 3.
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(4) Letter dated the date of payment and delivery
from Arthur Andersen LLP to the effect that: (A) they are
independent public accountants with respect to the Company
within the meaning of the Securities Act and the applicable
published rules and regulations thereunder; (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 Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the related published rules and regulations; (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 Exchange Act and the related
published rules and regulations; (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 set forth in the
Prospectus, 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
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 Ratio of Earnings to Fixed Charges 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
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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 Purchasers'
purposes.
(c) That no amendment or supplement (including the Prospectus
Supplement) to the registration statement or prospectus filed
subsequent to the time this agreement becomes effective (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 or shall
contain information (other than with respect to an amendment or
supplement relating solely to the activity of any Purchaser or
Purchasers) which, in the reasonable judgment of the Representative,
shall materially impair the marketability of the Bonds.
(d) That, at or before 8 p.m. New York Time on the first
business day after the date this agreement becomes effective, or at
such later time and date as the Representative may from time to time
consent to in writing or by telephone, confirmed in writing, an
appropriate order or orders of the Georgia Public Service Commission
and (if required) of the Commission under the Public Utility Holding
Company Act of 1935, as amended, necessary to permit the issue and sale
of the Bonds shall be in effect; and that, prior to the time of
purchase, no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Securities Act
by the Commission or proceedings therefor initiated or threatened.
(e) That, prior to the time of purchase, there shall have been
no material adverse change in the business, properties or financial
condition of the Company from that set forth in or contemplated by the
Prospectus, and that the Company shall, at the time of purchase, have
delivered to the Representative a certificate to such effect of an
executive officer of the Company. For the purposes of this condition,
the sale by the Company of, or its failure to sell, any issue of other
securities shall not be deemed to be such a change.
(f) That, at the time of purchase, the Representative shall be
furnished a certificate of the Company, which shall be satisfactory in
form and substance to Dewey Ballantine, evidencing compliance with the
provisions of Rule 52 under the Public Utility Holding Company Act of
1935, as amended, in connection with the issue and sale of the Bonds.
(g) That the Company shall have performed such of its
obligations under this agreement as are to be performed at or prior to
the time of purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Purchasers herein contained, the Company covenants as follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule 424
under the Securities Act, to file the Prospectus Supplement with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
(b) As soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by
the Commission for amendments to the Registration Statement or
Prospectus, including any amendment to any of the documents
incorporated therein by reference pursuant to Item 12 of Form S-3, or
of the issue of a stop order suspending the effectiveness of the
Registration Statement or of the initiation or threat of any
proceedings for that purpose and, if such a stop
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order should be issued by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof as soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as
practicable on or after the date this agreement becomes effective, and
from time to time thereafter during such period of time (not exceeding
nine months) after this agreement becomes effective as the Purchasers
are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made
any supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required by law to
deliver a prospectus after the expiration of nine months after the date
this agreement becomes effective, to furnish to such Purchaser, upon
request of the Representative, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement
becomes effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such
Representative consists of two or more persons to one of such persons,
one copy, certified by an officer of the Company, of the registration
statement as initially filed with the Commission, all amendments
thereto and all documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 as of the time of purchase (in each
case, exclusive of exhibits), and to furnish to the Representative
sufficient plain copies of said registration statement and all
amendments thereto (exclusive of exhibits) for distribution of two
each, and all said documents incorporated therein as of the time of
purchase (exclusive of exhibits) for distribution of one each, to the
other Purchasers.
(f) In the event that the Purchasers constitute "underwriters"
within the meaning of Section 2(11) of the Securities Act, then, for
such period of time (not exceeding nine months) after the date this
agreement becomes effective as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing, at
its own expense, to the Purchasers and to dealers (whose names and
addresses are furnished to the Company by the Representative) to whom
Bonds may have been sold by the Representative on behalf of the
Purchasers and, upon request, to any other dealers making such request,
either amendments to the Prospectus or supplements thereto, or (ii)
making an appropriate filing pursuant to Section 13 or 14 of the
Exchange Act which would supplement or amend the Prospectus, so that
the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need not
be audited) covering a period of at least twelve months beginning with
the first day of the month immediately following the effective date of
the Registration Statement as defined in Rule 158(c) under the
Securities Act, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
(h) To use its best efforts to qualify the Bonds for offer and
sale under the securities or blue sky laws of such jurisdictions as the
Representative may designate within six months after the date this
agreement becomes effective and to pay filing fees and disbursements in
connection therewith in an amount
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not exceeding $3,500 in the aggregate (including filing fees and
disbursements paid or incurred prior to the date this agreement becomes
effective), provided, however, that the Company shall not be required
to qualify as a foreign corporation or to file a consent to service of
process or to file annual reports or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(i) To pay expenses, fees and taxes (other than transfer
taxes) in connection with (1) the preparation and filing of the
Registration Statement and Prospectus, (2) the preparation, execution,
filing and recording of the new supplemental indenture pursuant to
which the Bonds are to be issued, (3) the issue and delivery of the
Bonds to the Purchasers, and (4) the furnishing of the opinions, letter
and certificates referred to in Section 3 hereof, except that the
Company shall be required to pay the fees and disbursements (other than
filing fees and disbursements referred to in paragraph (h) of this
Section 4) of Dewey Ballantine only in an event provided in paragraph
(j) of this Section 4, the Purchasers hereby agreeing to pay such fees
and disbursements in any other event and, if such fees should be less
than the amount stated by such counsel to the Representative, to repay
the Company the amount of any reduction.
(j) If the Purchasers shall not take up and pay for the Bonds
due to the failure of the Company to comply with any of the conditions
specified in Section 3 hereof, or if this agreement shall be terminated
in accordance with the provisions of Section 7 or 8 hereof, to pay the
reasonable fees and disbursements of Dewey Ballantine, and, if the
Purchasers shall not take up and pay for the Bonds due to the failure
of the Company to comply with any of the conditions specified in
Section 3 hereof, to reimburse the Purchasers for their reasonable
out-of-pocket expenses, in an amount not exceeding a total of $10,000,
incurred in connection with the financing contemplated by this
agreement.
(k) On and after the date this agreement becomes effective and
through the time of purchase, without the prior written consent of the
Representative, not to issue or sell any first mortgage bonds (other
than the Bonds) or any other long-term debt of the Company having terms
and provisions substantially similar to the Bonds.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the
Purchasers that:
(i) The Registration Statement, when it became
effective, did not contain any 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 not
misleading and the Bidding Prospectus, on said date, did not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; when the Prospectus Supplement is
filed with the Commission, and at the time of purchase, the
Registration Statement and the Prospectus, as they may be
amended or supplemented, will comply, or be deemed to comply,
in all material respects with the provisions of the Securities
Act and the rules and regulations of the Commission
thereunder, the Registration Statement, as it may be amended
or supplemented, will not contain any 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 not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and all documents
incorporated therein by reference pursuant to Item 12 of Form
S-3 as of such dates complied or will comply in all material
respects with the applicable provisions
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of the Exchange Act and the rules and regulations of the
Commission thereunder, and, on said dates, when read together
with the Prospectus, or the Prospectus as it may be otherwise
amended or supplemented, will not contain an untrue statement
of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the Company makes no warranty or representation to
any Purchaser with respect to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by, or through the Representative on
behalf of, any Purchaser for use in the Registration Statement
or the Prospectus, or to any statements in or omissions from
that part of the Registration Statement that shall constitute
the Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Indenture.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms
of this agreement will not violate any of the terms,
conditions or provisions of, or constitute a default under,
any indenture or other contract or agreement to which the
Company is now a party or the charter or by-laws of the
Company or any order of any court or administrative agency
entered in any proceedings to which the Company is now a
party.
(b) The Company agrees to indemnify and hold harmless each of
the Purchasers and each person, if any, who controls any such Purchaser
within the meaning of Section 15 of the Securities 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 Securities Act or
otherwise, and to reimburse the Purchasers 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 a preliminary prospectus (if used prior to the effective
date of the registration statement), or in the Bidding Prospectus (if
used prior to the date this agreement becomes effective), or in the
Registration Statement, or in the Prospectus or, if the Company shall
furnish to the Purchasers any amendments or any supplements to the
Prospectus, or shall make any filings pursuant to Section 13 or 14 of
the Exchange Act which are incorporated therein by reference, in the
Prospectus as so amended or supplemented (provided that, if such
Prospectus or such Prospectus as amended or supplemented is used after
the expiration of the period of time specified in Section 4(f) hereof,
it shall contain such amendments or supplements as the Company deems
necessary to comply with Section 10(a)(3) of the Securities Act), 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 omission or alleged untrue
statement or omission which was made in such Registration Statement or
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative
on behalf of, any Purchaser for use therein and except that this
indemnity with respect to a preliminary prospectus and the Bidding
Prospectus, and with respect to the Prospectus if the Company shall
have furnished any amendment or supplement thereto, shall not inure to
the benefit of any Purchaser (or of any person controlling such
Purchaser) on account of any losses, claims, damages, liabilities or
actions arising from the sale of Bonds to any person if a copy of the
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
Purchaser to such person with or prior to the written confirmation of
the sale involved. Each Purchaser agrees, within ten days after the
receipt by it of notice of the commencement of any action in respect of
which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section
5(b), to notify the Company in writing of the commencement thereof, but
the omission of such Purchaser so to notify the
-7-
<PAGE>
Company of any such action shall not release the Company from any
liability which it may have to such Purchaser or to such controlling
person otherwise than on account of the indemnity agreement contained
in this Section 5(b). In case any such action shall be brought against
any Purchaser or any such person controlling such Purchaser and such
Purchaser shall notify the Company of the commencement thereof, as
above provided, the Company shall be entitled to participate in (and,
to the extent that it shall wish, including the selection of counsel,
to direct) the defense thereof at its own expense. In case the Company
elects to direct such defense and select such counsel, any Purchaser 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 Purchaser or controlling person unless the employment
of such counsel has been authorized in writing by the Company in
connection with defending such action.
The Company's indemnity agreement contained in this Section 5(b), and
its covenants, warranties and representations contained in this agreement, shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Purchaser or controlling person, and shall survive the delivery of
and payment for the Bonds hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its
directors and such of its officers as shall have signed the
Registration Statement, and to each other Purchaser that the
information furnished in writing to the Company by, or through the
Representative on behalf of, such Purchaser for use in the Registration
Statement or the Prospectus does not contain an untrue statement of a
material fact and does not omit to state a material fact in connection
with such information required to be stated therein or necessary to
make such information not misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and such of its officers as shall have signed
the Registration Statement, and each other Purchaser and each person,
if any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and
upon the same terms as the indemnity agreement of the Company set forth
in Section 5(b) hereof, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative
on behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser contained in this
Section 6(b), and the warranties and representations of such Purchaser contained
in this agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or other Purchaser or
controlling person, and shall survive the delivery of and payment for the Bonds
hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to purchase
or otherwise) to purchase the principal amount of the Bonds which it has agreed
to purchase, the Company shall immediately notify the Representative, and the
Representative may, within 24 hours of receipt of such notice, procure some
other responsible party or parties satisfactory to the Company, who may include
one or more of the remaining Purchasers, to purchase or agree to purchase such
principal amount of the Bonds on the terms herein set forth; and, if the
Representative shall fail to procure a satisfactory party or parties to purchase
or agree to purchase such principal amount of the Bonds on such terms within
such period after the receipt of such notice, then the Company shall be entitled
to an additional period of 24 hours within which to procure another party or
parties to
-8-
<PAGE>
purchase or agree to purchase such principal amount of the Bonds on the terms
herein set forth. In any such case, either the Representative or the Company
shall have the right to postpone the time of purchase for a period not to exceed
five full business days from the date determined as provided in Section 2
hereof, in order that the necessary changes in the Registration Statement and
Prospectus and any other documents and arrangements may be effected. If the
Representative shall fail to procure a satisfactory party or parties to purchase
or agree to purchase such principal amount of the Bonds, and if the Company also
does not procure another party or parties to purchase or agree to purchase such
principal amount of the Bonds, as above provided, then this agreement shall
terminate. In the event of any such termination, the Company shall not be under
any liability to any Purchaser (except to the extent, if any, provided in
Section 4(j) hereof), nor shall any Purchaser (other than a Purchaser who shall
have failed or refused to purchase Bonds without some reason sufficient to
justify, in accordance with the terms hereof, its termination of its obligations
hereunder) be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Bonds, if, after this agreement becomes
effective and prior to the time of purchase, (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New York
Stock Exchange by the Commission or by the New York Stock Exchange, (iii) a
general banking moratorium shall have been declared by federal or New York State
authorities or (iv) there shall have occurred any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by the United States Congress or any other substantial national or international
calamity or emergency affecting the United States, in any such case provided for
in clauses (i) through (iv) with the result that, in the reasonable judgment of
the Representative, the marketability of the Bonds shall have been materially
impaired.
If the Representative elects to terminate this agreement, as provided
in this Section 8, the Company and each other Purchaser shall be notified
promptly by the Representative by telephone, confirmed in writing. If this
agreement shall not be carried out by any Purchaser for any reason permitted
hereunder, or if the sale of the Bonds to the Purchasers as herein contemplated
shall not be carried out because the Company is not able to comply with the
terms hereof, the Company shall not be under any obligation under this agreement
and shall not be liable to any Purchaser or to any member of any selling group
for the loss of anticipated profits from the transactions contemplated by this
agreement (except that the Company shall remain liable to the extent provided in
Section 4(j) hereof) and the Purchasers (other than a defaulting Purchaser)
shall be under no liability to the Company nor be under any liability under this
agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses: if to the Purchasers or the Representative, to the Representative
at the address set forth following its signature in the Form of Proposal, and,
if to the Company, to the Company, attention Carol A. Falcone, c/o Southern
Company Services, Inc., One Wall Street, 42nd Floor, New York, N. Y. 10005, and
attention of Kirby R. Willis, Vice President, Treasurer and Chief Financial
Officer, 600 East Bay Street, Savannah, Georgia 31401.
10. Parties in Interest: The agreement herein set forth has been and is
made solely for the benefit of the Purchasers and the Company, its directors and
such of its officers as shall have signed the Registration Statement, and the
controlling persons, if any, referred to in Sections 5 and 6 hereof, and their
respective successors, assigns, executors and administrators, and, subject to
the provisions of Section 7 hereof, no other person shall acquire or have any
right under or by virtue of this agreement.
-9-
<PAGE>
11. Definitions of Certain Terms: If there be two or more persons,
firms or corporations named in Exhibit A to the Form of Proposal, the term
"Purchasers", as used herein, shall be deemed to mean the several persons, firms
or corporations so named (including any substitute purchaser or purchasers
procured as provided by Section 7 hereof and the Representative hereinafter
mentioned, if so named), and the term "Representative", as used herein, shall be
deemed to mean the person or persons designated as representative or
representatives of the Purchasers by, or in the manner authorized by, the
Purchasers, who, by signing the Form of Proposal, represent that it or they have
been authorized by the Purchasers to execute the Form of Proposal on their
behalf and to act for them in the manner herein provided. In the event that all
the Purchasers execute the Form of Proposal and no one or more of them are
designated to act as representative or representatives, then the term
"Representative" shall be deemed to mean all the persons signing the Form of
Proposal. If the Representative consists of more than one person, the
Representative may act by any one thereof. All obligations of the Purchasers
hereunder are several and not joint. If there shall be only one person, firm or
corporation named in Exhibit A to the Form of Proposal, the term "Purchasers"
and the term "Representative", as used herein, shall mean such person, firm or
corporation.
-10-
<PAGE>
EXHIBIT 1
[Letterhead of Bouhan, Williams & Levy LLP]
[Date]
as the several Purchasers under Purchase
Contract effective between
Savannah Electric and Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Savannah Electric and
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Savannah Electric and Power Company (the
"Company") in connection with the purchase by you pursuant to the Purchase
Contract of $ principal amount of the Bonds, issued under the Indenture of
Mortgage dated as of March 1, 1945, between the Company and The Bank of New
York, as trustee (the "Trustee"), as supplemented and modified by various
indentures supplemental thereto including the Supplemental Indenture dated as of
(said Indenture of Mortgage, as so supplemented and modified, being hereinafter
called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33- )
filed by the Company under the Securities Act of 1933, as amended (the "Act"),
as it became effective under the Act (the "Registration Statement"); the
Company's prospectus dated , as supplemented by the prospectus supplement dated
(the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, which pursuant to Form S-3 incorporates by reference the Annual Report
on Form 10-K of the Company for the fiscal year ended December 31, _____, the
Quarterly Reports on Form 10-Q of the Company for the quarters ended
___________________ and the Current Reports on Form 8-K of the Company dated
___________________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Bonds, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to enable us 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
<PAGE>
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable in accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under the
Indenture and the Bonds may be limited by (a) laws of the State of
Georgia, where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for in the
Indenture, which laws do not, in our opinion, make inadequate the
remedies necessary for the realization of the benefits of such
security, (b) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (c)
general principles of equity.
3. The Indenture has been duly recorded in all counties in
which the property specifically described therein is located and the
Indenture is effective to create the lien intended to be created
thereby.
4. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
5. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds",
insofar as they purport to constitute summaries of the terms of
documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
6. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; and no other
order, consent or other authorization or approval of any 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 of the Bonds
by the Company.
7. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
8. Except as otherwise stated under "Item 2-Properties" in the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, ____, the Company has good and marketable title in fee
simple to the Company's interests in the principal plants and other
important units of the Company's property therein described, and the
Indenture constitutes, as security for the Bonds, a direct first lien
on substantially all the fixed property and franchises owned by the
Company, used and useful in its public
-2-
<PAGE>
utility business, subject only to permitted encumbrances, as therein
defined, and upon the acquisition hereafter by the Company of similar
property in the State of Georgia, will create such lien thereon,
subject to liens existing thereon at the time of acquisition and to the
due recordation of the Indenture in the counties in which such property
is located, and except as may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting
creditors' rights generally and general principles of equity.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 5 above and in the Prospectus
in the third paragraph under the caption "Legal Opinions and Experts". In the
course of the preparation by the Company of the Registration Statement, the
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. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the 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 Prospectus,
as of , complied as to form in all material respects with the requirements of
the Act, the Trust Indenture 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 Prospectus or the Exchange Act Documents, and (ii)
we have no 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 Prospectus (including
the Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any 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
Prospectus or the Exchange Act Documents.
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.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
BOUHAN, WILLIAMS & LEVY LLP
-3-
<PAGE>
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase
Contract effective between
Savannah Electric and Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Savannah Electric and
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Savannah Electric and Power Company (the
"Company") in connection with the purchase by you pursuant to the Purchase
Contract of $ principal amount of the Bonds, issued under the Indenture of
Mortgage dated as of March 1, 1945, between the Company and The Bank of New
York, as trustee (the "Trustee"), as supplemented and modified by various
indentures supplemental thereto including the Supplemental Indenture dated as of
(said Indenture of Mortgage, as so supplemented and modified, being hereinafter
called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33- )
filed by the Company under the Securities Act of 1933, as amended (the "Act"),
as it became effective under the Act (the "Registration Statement"); the
Company's prospectus dated , as supplemented by the prospectus supplement dated
(the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, which pursuant to Form S-3 incorporates by reference the Annual Report
on Form 10-K of the Company for the fiscal year ended December 31, _____, the
Quarterly Reports on Form 10-Q of the Company for the quarters ended
______________________ and the Current Reports on Form 8-K of the Company dated
___________________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Bonds, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to enable us 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
<PAGE>
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable in accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under the
Indenture and the Bonds may be limited by (a) laws of the State of
Georgia, where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for in the
Indenture, which laws do not, in our opinion, make inadequate the
remedies necessary for the realization of the benefits of such
security, (b) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (c)
general principles of equity.
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds",
insofar as they purport to constitute summaries of the terms of
documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
5. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; and no other
order, consent or other authorization or approval of any 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 of the Bonds
by the Company.
6. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
We are not passing upon matters relating to the lien of the Indenture
on property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the opinion, dated the date hereof,
of Bouhan, Williams & Levy LLP, general counsel for the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility
-2-
<PAGE>
therefor, except as and to the extent set forth in paragraph 4 above. In the
course of the preparation by the Company of the Registration Statement, the
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. Based upon our
examination of the Registration Statement, the Prospectus and the Exchange Act
Documents, our investigations made in connection with the preparation of the
Registration Statement, the 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 Prospectus,
as of
, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture 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 Prospectus or the Exchange Act Documents, and (ii)
we have no 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 Prospectus (including
the Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any 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
Prospectus or the Exchange Act Documents.
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.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
TROUTMAN SANDERS LLP
-3-
<PAGE>
EXHIBIT 3
[Letterhead of Dewey Ballantine]
[Date]
as the several Purchasers under Purchase
Contract effective , between
Savannah Electric and Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Savannah Electric and
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you
pursuant to the Purchase Contract of $ principal amount of the Bonds, issued
under the Indenture of Mortgage dated as of March 1, 1945, between Savannah
Electric and Power Company (the "Company") and The Bank of New York, as Trustee
(the "Trustee"), as supplemented and modified by various indentures supplemental
thereto including the Supplemental Indenture dated as of (said Indenture of
Mortgage, as so supplemented and modified, being hereinafter called the
"Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33- )
filed by the Company under the Securities Act of 1933, as amended (the "Act"),
as it became effective under the Act (the "Registration Statement"); the
Company's prospectus dated , as supplemented by the prospectus supplement dated
(the "Prospectus"), filed by the Company pursuant to Rule 424 of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Act, which pursuant to Form S-3 incorporates by reference the Annual Report
on Form 10-K of the Company for the fiscal year ended December 31, ____, the
Quarterly Reports on Form 10-Q of the Company for the quarters ended
__________________ and the Current Reports on Form 8-K of the Company dated
___________ (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and the Indenture. In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the Bonds, of which we have
examined a specimen), and we have made such other and further investigations as
we deemed necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we hereby advise you that in our opinion:
<PAGE>
1. The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of the
State of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business.
2. The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding instrument of the Company
enforceable in accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under the
Indenture and the Bonds may be limited by (a) laws of the State of
Georgia, where the property covered thereby is located, affecting the
remedies for the enforcement of the security provided for in the
Indenture, which laws do not, in our opinion, make inadequate the
remedies necessary for the realization of the benefits of such
security, (b) bankruptcy, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and (c)
general principles of equity.
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds",
insofar as they purport to constitute summaries of the terms of
documents referred to therein, constitute accurate summaries of the
terms of such documents in all material respects.
5. All orders, consents or other authorizations or approvals
of the Georgia Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; and no other
order, consent or other authorization or approval of any 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 of the Bonds
by the Company.
6. The Purchase Contract has been duly authorized, executed
and delivered by the Company.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Bonds, and the legal opinions dated the date
hereof rendered to you by Bouhan, Williams & Levy LLP and Troutman Sanders LLP,
counsel for the Company, pursuant to the Purchase Contract, are in form
satisfactory to us. Insofar as the opinions expressed herein relate to or are
dependent upon matters governed by the laws of the State of Georgia, we have
relied upon the aforesaid opinions of Bouhan, Williams & Levy LLP and Troutman
Sanders LLP.
We are not passing upon matters relating to the lien of the Indenture
on property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the above-mentioned opinion of
Bouhan, Williams & Levy LLP.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 4 above. In the course of the
preparation by the
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<PAGE>
Company of the Registration Statement, the 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 for
the Company. Based upon our examination of the Registration Statement, the
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the 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 Prospectus,
as of , complied as to form in all material respects with the requirements of
the Act, the Trust Indenture 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 Prospectus or the Exchange Act Documents, and (ii)
we have no 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 Prospectus (including
the Exchange Act Documents) contains any untrue statement of a material fact or
omits to state any 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
Prospectus or the Exchange Act Documents.
We are members of the Bar of the State 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 State of Georgia.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other purpose,
or relied upon by, or furnished to, any other person, firm or corporation
without our prior written consent.
Very truly yours,
DEWEY BALLANTINE
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Exhibit 4
SAVANNAH ELECTRIC AND POWER COMPANY
to
THE BANK OF NEW YORK,
Trustee
--------------------
Twenty-ninth Supplemental Indenture
Dated as of May 1, 1996
--------------------
Supplementing and Modifying Indenture of Mortgage
dated as of March 1, 1945
and
Creating First Mortgage Bonds,
6.90% Series due May 1, 2006
<PAGE>
THIS TWENTY-NINTH SUPPLEMENTAL INDENTURE dated as of May 1, 1996, made by
SAVANNAH ELECTRIC AND POWER COMPANY (its federal identification number being
58-0418070), a Georgia corporation (hereinafter called the "Company"), party of
the first part, and THE BANK OF NEW YORK, a banking corporation duly organized
and existing under the laws of the State of New York (its federal identification
number being 13-5160382), and having its principal corporate trust office in the
City of New York in the State of New York (hereinafter sometimes called the
"Trustee"), party of the second part.
WHEREAS, the Company has heretofore executed and delivered to
NationsBank of Georgia, National Association, under its former name of The
Citizens and Southern National Bank (hereinafter called the "Original Trustee")
an Indenture of Mortgage dated as of March 1, 1945 (hereinafter called the
"Original Indenture"), to secure, as provided therein, its bonds (in the
Original Indenture and herein sometimes called the "Bonds"), to be designated
generally as its "First Mortgage Bonds", and to be issued in one or more series
as provided in the Original Indenture; and
WHEREAS, the Company has heretofore executed and delivered to the
Original Trustee a First Supplemental Indenture dated as of March 1, 1948, a
Second Supplemental Indenture dated as of December 1, 1953, a Third Supplemental
Indenture dated as of October 1, 1954, a Fourth Supplemental Indenture dated as
of May 1, 1956, a Fifth Supplemental Indenture dated as of November 1, 1957, a
Sixth Supplemental Indenture dated as of June 1, 1960, a Seventh Supplemental
Indenture dated as of April 1, 1964, an Eighth Supplemental Indenture dated as
of November 1, 1970, a Ninth Supplemental Indenture dated as of March 31, 1973,
a Tenth Supplemental Indenture dated as of November 1, 1974, an Eleventh
Supplemental Indenture dated as of March 1, 1975, a Twelfth Supplemental
Indenture dated as of October 15, 1975, a Thirteenth Supplemental Indenture
dated as of July 15, 1976, a Fourteenth Supplemental Indenture dated as of
February 1, 1978, a Fifteenth Supplemental Indenture dated as of December 1,
1978, a Sixteenth Supplemental Indenture dated as of July 1, 1981, a Seventeenth
Supplemental Indenture dated as of December 1, 1981, an Eighteenth Supplemental
Indenture dated as of April 1, 1982, a Nineteenth Supplemental Indenture dated
as of January 15, 1983, as amended, a Twentieth Supplemental Indenture dated as
of May 1, 1985, a Twenty-first Supplemental Indenture dated as of June 1, 1986,
a Twenty-second Supplemental Indenture dated as of October 1, 1989, a
Twenty-third Supplemental Indenture dated as of July 1, 1991, a Twenty-fourth
Supplemental Indenture dated as of February 1, 1992, a Twenty-fifth Supplemental
Indenture dated as of July 1, 1992, a Twenty-sixth Supplemental Indenture dated
as of January 1, 1993, a Twenty-seventh Supplemental Indenture dated as of July
1, 1993, and a Twenty-eighth Supplemental Indenture dated as of May 1, 1995, in
each case supplementing and, in
<PAGE>
certain instances, modifying the Original Indenture, and each of which
indentures provided for the creation of one or more new series of First Mortgage
Bonds; and
WHEREAS, effective December 4, 1995, the Original Trustee resigned as
trustee under the Original Indenture, as so supplemented and modified, and the
Company appointed the Trustee as successor trustee pursuant to Section 14.17 of
the Original Indenture; and
WHEREAS, pursuant to the Original Indenture, as so supplemented and
modified, there have been executed, authenticated, delivered and issued and
there are now outstanding First Mortgage Bonds of series and in principal
amounts as follows:
Title Issued Outstanding
9 3/8% Series due 2021 $30,000,000 $28,200,000
6 3/4% Pollution Control
Series due 2022 13,870,000 13,870,000
8.30% Series due 2022 30,000,000 30,000,000
Pollution Control Series
due 2016 4,085,000 4,085,000
6 3/8% Series due 2003 20,000,000 20,000,000
7.40% Series due 2023 25,000,000 25,000,000
7 7/8% Series due 2025 15,000,000 15,000,000
and
WHEREAS, the Company desires to execute and deliver this Twenty-ninth
Supplemental Indenture, in accordance with the provisions of the Original
Indenture, for the purpose of better assuring, mortgaging, conveying and
confirming unto the Trustee certain additional property acquired by the Company
since the execution and delivery of the Twenty-eighth Supplemental Indenture
which by the terms of the Original Indenture is or is intended to be subject to
the lien thereof, for the purpose of adding to the covenants and agreements of
the Company contained in the Original Indenture other covenants and agreements
hereafter to be observed by the Company, and for the purpose of providing for
the creation of a new series of Bonds to be designated "First Mortgage Bonds,
6.90% Series due May 1, 2006" (hereinafter sometimes called the "Bonds of the
2006 Series") (the Original Indenture as heretofore supplemented and/or modified
by the aforesaid twenty-eight supplemental indentures and as supplemented and
modified by this Twenty-ninth Supplemental Indenture being herein sometimes
called the "Indenture"); and
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<PAGE>
WHEREAS, all acts and proceedings required by law and by the charter
and by-laws of the Company necessary to make the $20,000,000 principal amount of
Bonds of the 2006 Series proposed to be initially issued, when executed by the
Company, authenticated and delivered by the Trustee and duly issued, the valid,
binding and legal obligations of the Company, and to constitute the Indenture a
valid and binding mortgage and deed of trust for the security of all of the
Bonds, in accordance with its and their terms, have been done and taken; and the
execution and delivery of this Twenty-ninth Supplemental Indenture have been in
all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and premium, if any, and interest on all Bonds at
any time issued and outstanding under the Indenture according to their tenor,
purport and effect, and to secure the performance and observance of all the
covenants and conditions in said Bonds and in the Indenture contained and for
and in consideration of the premises and of the mutual covenants herein
contained and of the purchase and acceptance of the Bonds of the 2006 Series by
the registered owners thereof, and of the sum of $1.00 lawful money of the
United States of America duly paid to the Company by the Trustee at or before
the ensealing and delivery hereof, and for other valuable considerations, the
receipt whereof is hereby acknowledged, Savannah Electric and Power Company has
executed and delivered this Twenty-ninth Supplemental Indenture, and has
granted, bargained, sold, warranted, aliened, conveyed, assigned, transferred,
mortgaged, pledged, hypothecated, set over and confirmed, and by these presents
does grant, bargain, sell, warrant, alien, convey, assign, transfer, mortgage,
pledge, hypothecate, set over and confirm, unto The Bank of New York, as
Trustee, and to its successors in the trust, and to its assigns, forever, all
and singular the following described property, rights, privileges and franchises
acquired by the Company since the execution and delivery of the Twenty-eighth
Supplemental Indenture, to-wit:
CLAUSE I.
All property, real, personal or mixed, tangible or intangible (other
than excepted property as hereinafter defined) of every kind, character and
description.
CLAUSE II.
Without in any way limiting anything in Clause I above or hereinafter described,
all and singular the lands, real estate, chattels real, interests in land,
leaseholds, ways, rights-of-way, easements, servitudes, permits and licenses,
lands under water, riparian rights, franchises, privileges, gas and electric
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<PAGE>
generating plants, gas storage plants and facilities, water works, natural or
other gas and electric transmission and distribution systems, gas gathering
systems and tap lines, water works plants and water distribution systems,
refrigeration plants and systems, hot water and steam heating plants and
distribution systems, and all apparatus and equipment appertaining thereto,
offices, buildings, warehouses, garages, and other structures, machine shops,
poles, lines, conduits, ducts, machinery, engines, boilers, dynamos, generators,
motors, tools, materials and supplies and all property of any nature
appertaining to any of the plants, systems, business or operations of the
Company, whether or not affixed to the realty, used in the operation of any of
the premises or plants or systems or otherwise, other than excepted property as
hereinafter defined.
CLAUSE III.
All corporate, federal, state, municipal and other permits, consents,
licenses, bridge licenses, bridge rights, river permits, franchises, grants,
privileges and immunities of every kind and description (other than excepted
property as hereinafter defined) and all renewals, extensions, enlargements and
modifications of any of them.
CLAUSE IV.
Also all other property, real, personal or mixed, tangible or
intangible (other than excepted property as hereinafter defined) of every kind,
character and description and wheresoever situated, whether or not useful in the
generation, manufacture, production, transportation, distribution, sale or
supplying of gas, electricity, water, hot water or steam or refrigeration.
CLAUSE V.
Together with all and singular the plants, buildings, improvements,
additions, tenements, hereditaments, easements, rights, privileges, licenses and
franchises and all other appurtenances whatsoever belonging or in any wise
appertaining to any of the property hereby mortgaged or pledged or intended so
to be, or any part thereof, and the reversion and reversions, remainder and
remainders, and the rents, revenues, issues, earnings, income, products and
profits thereof, and of every part and parcel thereof, and all the estate,
right, title, interest, property, claim and demand of every nature whatsoever of
the Company at law, in equity or otherwise howsoever, in, of and to such
property and every part and parcel thereof.
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<PAGE>
EXCEPTED PROPERTY
There is, however, expressly excepted and excluded from this
Twenty-ninth Supplemental Indenture and from the lien and operation of the
Indenture:
A. Any and all property expressly excepted and excluded from
the Original Indenture and from the lien and operation thereof by
Paragraph A under the heading "Excepted Property" of the Granting
Clauses of the Original Indenture and of the character excepted by
Paragraphs B to H, both inclusive, under said heading "Excepted
Property" of the Granting Clauses of the Original Indenture; and
B. All property which has been released by the Trustee or the
Original Trustee or otherwise properly disposed of by the Company free
from the lien of the Original Indenture, as supplemented and modified,
in accordance with the provisions thereof.
Provided, however, that if upon the occurrence of an event of default
as provided in the Indenture, the Trustee or any receiver appointed under the
Indenture or upon the application of the Trustee or the holders of Bonds
outstanding under the Indenture shall enter upon or take possession of the trust
estate thereunder, the Trustee or such receiver may, to the extent permitted by
law, at the same time likewise take possession of any and all of the property
hereinabove excepted and reserved from the lien of the Indenture then on hand
which is used or useful in connection with the business of the Company and use
and administer the same, to the extent permitted by law, to the same extent as
if such property were part of the trust estate under the Indenture, unless and
until such default shall be remedied and possession of the trust estate restored
to the Company, its successors or assigns.
TO HAVE AND TO HOLD all and singular the lands, properties, estates,
rights, franchises, privileges and appurtenances hereby mortgaged, conveyed,
pledged or assigned, or intended so to be, together with all the appurtenances
thereto appertaining and the rents, issues and profits thereof, unto the Trustee
and its successors and assigns, forever;
SUBJECT, HOWEVER, to (a) the exceptions, reservations, restrictions,
conditions, limitations, covenants and matters, if any, recited in the
Indenture, (b) any permitted encumbrances as defined in Subsection B of Section
1.11 of the Original Indenture and (c) with respect to any property which the
Company may hereafter acquire, to all terms, conditions, agreements, covenants,
exceptions and reservations expressed or provided in
-5-
<PAGE>
the deeds or other instruments, respectively, under and by virtue of which the
Company shall hereafter acquire the same and to any liens thereon existing, and
to any liens for unpaid portions of the purchase money placed thereon, at the
time of such acquisition;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use,
benefit, security and protection of those who from time to time shall hold the
Bonds and coupons authenticated and delivered under the Indenture, and duly
issued by the Company, without any discrimination, preference or priority of any
one Bond or coupon over any other by reason of priority in the time of issue,
sale or negotiation thereof or otherwise, except as provided in Section 11.28 of
the Original Indenture, so that, subject to said Section 11.28, each and all of
said Bonds and coupons shall have the same right, lien and privilege under the
Indenture and shall be equally secured thereby and shall have the same
proportionate interest and share in the trust estate, with the same effect as if
all of the Bonds and coupons had been issued, sold and negotiated simultaneously
on the date of the delivery of the Original Indenture;
AND UPON THE TRUSTS, USES AND PURPOSES and subject to the covenants,
agreements and conditions hereinafter set forth and declared.
ARTICLE ONE
BONDS OF THE 2006 SERIES AND
CERTAIN PROVISIONS RELATING THERETO
Section 1.01. Terms of the Bonds of the 2006 Series. There shall be and
hereby is created a new series of Bonds, to be issued under and secured by the
Original Indenture, as heretofore supplemented and modified and as hereby
supplemented and modified, known as and entitled "First Mortgage Bonds, 6.90%
Series due May 1, 2006", and the form thereof shall be substantially as
hereinafter set forth in Section 1.05.
The principal amount of the Bonds of the 2006 Series shall not be
limited except as provided in Section 2.01 of the Original Indenture and except
as may otherwise be provided in a further indenture supplemental thereto.
The definitive Bonds of the 2006 Series shall be issued only as
registered Bonds without coupons of the denomination of $1,000 or of any
multiple thereof. May 1, 1996, shall be the date of the commencement of the
first interest period for Bonds of the 2006 Series. All Bonds of the 2006 Series
shall mature May 1, 2006, and shall bear interest at the rate of 6.90% per annum
from
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<PAGE>
their respective dates until the payment of the principal thereof, such interest
to be payable semiannually on May 1 and November 1 in each year commencing
November 1, 1996. The principal of, and the premium, if any, and interest on,
the Bonds of the 2006 Series shall be payable in lawful money of the United
States of America. Principal of and premium, if any, on Bonds of the 2006 Series
will be payable at the principal corporate trust office in the City of New York,
New York, of the Trustee. Except as hereinafter provided, interest on Bonds of
the 2006 Series shall be payable at the principal corporate trust office in the
City of New York, New York, of the Trustee, to the holder of record on the
record date as hereinbelow defined. Interest on the Bonds of the 2006 Series
shall, unless otherwise directed by the holders thereof, be paid by checks
payable to the order of the persons entitled thereto, mailed by the Trustee by
first class mail, postage prepaid, to their addresses as they appear on the
registration books of the Company for the Bonds of the 2006 Series.
The signature of any officer or officers of the Company executing any
Bonds of the 2006 Series or attesting the corporate seal thereon may be
facsimiles, engraved or printed.
The definitive Bonds of the 2006 Series may be issued in the form of
Bonds engraved, printed or lithographed on steel engraved borders.
Notwithstanding any provisions in the Indenture to the contrary and
except as provided in this Section 1.01, each Bond of the 2006 Series shall be
dated as provided in Section 2.05 of the Original Indenture, and shall bear
interest on the principal amount thereof from the date thereof, or if the date
thereof is prior to October 16, 1996, then from May 1, 1996, or if the date
thereof be an interest payment date to which interest is being paid or a date
between the record date for any such an interest payment date and such interest
payment date, then from such interest payment date; provided, however, that if
there shall be an existing default in the payment of interest on Bonds of the
2006 Series then, unless moneys sufficient for the payment of interest on the
next interest payment date shall have been deposited with the Trustee, Bonds
authenticated between the record date and payment date shall bear interest from
the next preceding date to which interest has been paid on the Bonds of the 2006
Series, or if no interest has been paid, from May 1, 1996.
Notwithstanding any provisions in the Indenture to the contrary, the
person in whose name any Bond of the 2006 Series is registered at the close of
business on any record date (as hereinbelow defined) with respect to any
interest payment date
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<PAGE>
shall be entitled to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Bond of the 2006 Series upon any
transfer or exchange thereof subsequent to the record date and prior to such
interest payment date, except that, if and to the extent that the Company shall
default in the payment of the interest due on such interest payment date, then
the registered holders of Bonds of the 2006 Series on such record date shall
have no further right to or claim in respect of such defaulted interest as such
registered holders on such record date, and the persons entitled to receive
payment of any defaulted interest thereafter payable or paid on any Bonds of the
2006 Series shall be the registered holders of such Bonds of the 2006 Series on
the record date for payment of such defaulted interest. The term "record date"
as used in this Section 1.01, and in the form of the Bonds of the 2006 Series,
with respect to any interest payment date applicable to the Bonds of the 2006
Series, shall mean the close of business on the April 15 next preceding the May
1 interest payment date, or the October 15 next preceding the November 1
interest payment date, as the case may be (or the preceding business day if a
holiday or other day on which the office of the Trustee is closed), or such
record date established for defaulted interest as hereinafter provided.
In case of failure by the Company to pay any interest when due the
claim for such interest shall be deemed to have been transferred by transfer of
any Bond of the 2006 Series registered on the books of the Company and the
Company, by not less than 10 days' written notice to bondholders, may fix a
subsequent record date, not more than 30 days prior to the date fixed for the
payment of such interest, for determination of holders entitled to payment of
such interest. Such provision for establishment of a subsequent record date,
however, shall in no way affect the rights of bondholders or of the Trustee
consequent on any default.
As permitted by the provisions of Section 2.10 of the Indenture and
upon payment at the option of the Company of a sum sufficient to reimburse it
for any stamp tax or other governmental charge as provided in Section 2.11 of
the Indenture, Bonds of the 2006 Series may be exchanged for other registered
Bonds of the 2006 Series of different authorized denominations of like aggregate
principal amount. Notwithstanding the provisions of Section 2.11 of the
Indenture, no further sum, other than the sum sufficient to reimburse the
Company for such stamp taxes or other governmental charges, shall be required to
be paid upon any exchange of Bonds of the 2006 Series or upon any transfer
thereof.
The Trustee hereunder shall, by virtue of its office as such Trustee,
be the registrar and transfer agent of the Company for
-8-
<PAGE>
the purpose of registering and transferring Bonds of the 2006 Series, and be the
paying agent for the Bonds of the 2006 Series.
Section 1.02. Redemption Provisions for Bonds of the 2006 Series. The
Bonds of the 2006 Series shall not be redeemable at the option of the Company or
by operation of the sinking fund provided for Bonds of the 2006 Series in
Section 1.03 hereof or the sinking fund provisions of any other indenture or
indentures supplemental to the Original Indenture, the improvement fund provided
for in Section 4.04 of the Original Indenture and in Section 1.04 hereof, or by
use of proceeds of released property.
Section 1.03. Sinking Fund for the Bonds of the 2006 Series. The
Company covenants and agrees that, so long as any Bonds of the 2006 Series shall
be outstanding under the Indenture, it will on or before June 1 in each year,
commencing with June 1, 1997,
(a) deposit with the Trustee subject to the provisions of this
Section cash and/or Bonds of any series authenticated under the
Indenture then outstanding (taken at their principal amount) in an
amount equal to the "sinking fund requirement" (which term, as used in
this Section, shall mean for any year an amount equal to one per centum
(1%) of the aggregate principal amount of Bonds of the 2006 Series
authenticated and delivered by the Trustee pursuant to the provisions
of Sections 5.03, 5.04 and 5.05 of the Indenture and issued by the
Company prior to January 1 of that year, after deducting from such
aggregate principal amount the principal amount of Bonds of the 2006
Series which, prior to January 1 of that year, have been deposited with
the Trustee for cancellation as the basis for the release of property
or for the withdrawal of cash representing proceeds of released
property or have been purchased by the use of proceeds of released
property); or
(b) to the extent that it does not so deposit cash and/or
Bonds, deliver to the Trustee a certificate of available additions in
the form provided for in Section 3.03 of the Indenture, in which case
the Trustee shall credit against the sinking fund requirement an amount
equal to 60% of the amount of available additions made the basis of
such action as shown in Item 6 of such certificate.
The term "sinking fund certificate", as used in this Section, shall
mean a certificate filed by the Company with the Trustee pursuant to this
Section, which shall be an officers' certificate and which, unless one of the
officers signing the same is an accountant, shall also be subscribed by an
accountant.
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<PAGE>
Such certificate may be a separate certificate or it may be combined with a
sinking fund certificate or certificates filed pursuant to the sinking fund
provisions of any other indenture or indentures supplemental to the Original
Indenture.
On or before the first day of June in each year beginning June 1, 1997,
so long as any Bonds of the 2006 Series are outstanding under the Indenture, the
Company shall deliver to the Trustee a sinking fund certificate showing the
sinking fund requirement for that year, the amount of cash, if any, and the
principal amount of Bonds authenticated under the Indenture then outstanding, if
any, then to be deposited by the Company with the Trustee and, if the Company
elects to satisfy the sinking fund requirement for that year in whole or in part
by crediting available additions, the amount, if any, of available additions to
be credited. The Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if any, and the
principal amount of Bonds, if any, shown in such certificate.
The Trustee shall hold any cash deposited with it under the provisions
of this Section as a part of the trust estate until paid out as hereinafter
provided. Any cash deposited with the Trustee under the provisions of this
Section, at the request and election of the Company, may be withdrawn from,
and/or shall be applied by, the Trustee from time to time as provided in
Sections 7.02, 7.03, 7.04 or 7.05 of the Indenture; provided, however, such cash
may be withdrawn as provided in said Section 7.02 in an amount up to but not
exceeding 60% of the amount of available additions.
Bonds deposited with the Trustee pursuant to this Section, or purchased
or redeemed by the use of cash deposited pursuant to this Section, shall be
cancelled and, as long as any Bonds of the 2006 Series are outstanding under the
Indenture, shall not be made the basis for the authentication and delivery of
Bonds or of any further action or credit under the Indenture.
So long, but only so long, as any of the Bonds of the 2006 Series are
outstanding, no property additions which have been made the basis of a credit to
the sinking fund requirement for the Bonds of the 2006 Series pursuant to clause
(b) of the first paragraph of this Section shall be made the basis of the
authentication and delivery of Bonds or of any other action or credit under the
Indenture and any such property additions shall be deemed to have been
"certified or substituted hereunder" within the meaning of Subsection G of
Section 1.10 of the Original Indenture.
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<PAGE>
Section 1.04. Improvement Fund, Minimum Provision for Depreciation, Net
Earnings Available for Interest. The provisions of Section 4.04 of the Original
Indenture as to an improvement fund shall continue in effect so long as any
Bonds of the 2006 Series remain outstanding; provided, however, the term
"minimum provision for depreciation" shall have the meaning specified in Section
2.01 of the Twenty-second Supplemental Indenture. The amount to be deducted as
provision for depreciation, obsolescence and/or depletion of the Company's
bondable public utility property in determining net earnings available for
interest pursuant to Section 1.12 of the Original Indenture shall be in an
amount not less than the minimum provision for depreciation as defined in
Section 2.01 of the Twenty-second Supplemental Indenture.
Section 1.05. Form of Bonds of the 2006 Series. The Bonds of the 2006
Series, and the form of Trustee's authentication certificate to be executed on
the Bonds of the 2006 Series, are to be substantially in the following forms,
respectively:
[Form of Face of Bonds of the 2006 Series]
No. $
SAVANNAH ELECTRIC AND POWER COMPANY
First Mortgage Bond, 6.90% Series Due May 1, 2006
SAVANNAH ELECTRIC AND POWER COMPANY, a Georgia corporation (hereinafter
sometimes called the "Company"), for value received, hereby promises to pay to
______________________________ or registered assigns, ____________________
Dollars on May 1, 2006, and to pay to the registered owner hereof interest
hereon from the date hereof at the rate per annum specified in the title of this
bond, semi-annually on May 1 and on November 1 in each year until payment of the
principal hereof.
The interest so payable upon any May 1 or November 1 will, subject to
certain exceptions provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this bond is registered at the close of
business on the April 15 next preceding such May 1 or the October 15 next
preceding such November 1, as the case may be (or the preceding business day if
a holiday or other day on which the office of the Trustee is closed).
The principal of, and the premium, if any, and interest on, this bond
shall be paid in lawful money of the United States of America. Principal of and
premium, if any, on this bond will be payable at the principal corporate trust
office in the City of
-11-
<PAGE>
New York, New York, of the Trustee under the Indenture mentioned on the reverse
hereof. Interest on this bond will be payable at the principal corporate trust
office in the City of New York, New York, of the Trustee; provided, however,
that interest on this bond shall, unless otherwise directed by the registered
holder hereof, be paid by check payable to the order of the registered holder
entitled thereto and mailed by the Trustee by first class mail, postage prepaid,
to such holder at his address as shown on the registration books of the Company
for the bonds of this series.
This bond shall not become or be valid or obligatory for any purpose
until the authentication certificate hereon shall have been signed by the
Trustee.
The provisions of this bond are continued on the reverse hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, SAVANNAH ELECTRIC AND POWER COMPANY has caused
these presents to be executed in its corporate name and behalf by the manual or
facsimile signature of its President or one of its Vice Presidents and its
corporate seal or a facsimile thereof to be affixed or imprinted hereon and
attested by the manual or facsimile signature of its Secretary or one of its
Assistant Secretaries, all as of
SAVANNAH ELECTRIC AND POWER COMPANY
By:______________________________
Attest:__________________________
[Form of Reverse of Bonds of the 2006 Series]
This bond is one of the bonds, of the above designated series, of an
authorized issue of bonds of the Company, known as First Mortgage Bonds, not
limited as to the maximum aggregate principal amount except as otherwise
provided in the Indenture hereinafter mentioned, all issued or issuable in one
or more series under and equally secured (except insofar as any sinking fund,
improvement fund or other fund established in accordance with the provisions of
the Indenture hereinafter mentioned may afford additional security for the bonds
of any specific series) by an Indenture of Mortgage dated as of March 1, 1945,
duly executed and delivered by the Company to NationsBank of Georgia, National
Association, under its former name of The Citizens and Southern National Bank,
to which The Bank of New York is successor (hereinafter sometimes referred to as
the "Trustee"),
-12-
<PAGE>
as Trustee, as modified by the Third Supplemental Indenture dated as of October
1, 1954, the Eighth Supplemental Indenture dated as of November 1, 1970, the
Ninth Supplemental Indenture dated as of March 31, 1973, the Thirteenth
Supplemental Indenture dated as of July 15, 1976, the Fifteenth Supplemental
Indenture dated as of December 1, 1978, the Sixteenth Supplemental Indenture
dated as of July 1, 1981, the Seventeenth Supplemental Indenture dated as of
December 1, 1981, the Nineteenth Supplemental Indenture dated as of January 15,
1983, as amended, the Twenty-second Supplemental Indenture dated as of October
1, 1989, the Twenty- third Supplemental Indenture dated as of July 1, 1991, the
Twenty-fourth Supplemental Indenture dated as of February 1, 1992, the
Twenty-fifth Supplemental Indenture dated as of July 1, 1992, the Twenty-sixth
Supplemental Indenture dated as of January 1, 1993, the Twenty-seventh
Supplemental Indenture dated as of July 1, 1993, the Twenty-eighth Supplemental
Indenture dated as of May 1, 1995, as supplemented by all indentures
supplemental thereto, and as supplemented and modified by a Twenty-ninth
Supplemental Indenture dated as of May 1, 1996 (said Indenture of Mortgage, as
so supplemented and modified, being herein sometimes called the "Indenture"), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the property mortgaged and pledged as security for said
bonds, the nature and extent of the security, and the rights, duties and
immunities thereunder of the Trustee, the rights of the holders of said bonds
and of the Trustee and of the Company in respect of such security, and the terms
upon which said bonds may be issued thereunder.
The bonds of this series may not be redeemed at the option of the
Company or by operation of the sinking fund or improvement fund provisions of
the Indenture or by the application of the proceeds of released property.
Modifications or alterations of the Indenture and of the rights and
obligations of the Company and of the holders of the bonds and coupons may be
made only to the extent and in the circumstances permitted by the Indenture.
This bond is transferable by the registered owner hereof in person or
by his duly authorized attorney, at the principal corporate trust office in the
City of New York, New York, of the Trustee, upon surrender of this bond for
cancellation and upon payment, if the Company shall so require, of a sum
sufficient to reimburse the Company for any stamp tax or other governmental
charge incident thereto, and thereupon a new registered bond of the same series
of like principal amount will be issued to the transferee in exchange therefor.
-13-
<PAGE>
The registered owner of this bond at his option may surrender the same
for cancellation at said office and receive in exchange therefor the same
aggregate principal amount of registered bonds of the same series but of other
authorized denominations, upon payment, if the Company shall so require, of a
sum sufficient to reimburse the Company for any stamp tax or other governmental
charge incident thereto and subject to the terms and conditions set forth in
said Indenture.
The Twenty-ninth Supplemental Indenture provides that in the event of
any default in payment of the interest due on any interest payment date, such
interest shall not be payable to the holder of the bond on the original record
date but shall be paid to the registered holder of such bond on the subsequent
record date established for payment of such defaulted interest.
If an event of default as defined in the Indenture shall occur, the
principal of this bond may become or be declared due and payable before maturity
in the manner and with the effect provided in the Indenture. The holders,
however, of certain specified percentages of the bonds at the time outstanding
may, in the cases, to the extent and as provided in the Indenture, waive certain
defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
premium, if any, or interest on this bond, or for any claim based hereon, or
otherwise in respect hereof or of the Indenture, against any incorporator,
stockholder, director or officer, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or such predecessor or successor corporation, under any
constitution or statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators, stockholders,
directors and officers, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and as provided in the Indenture.
[Form of Trustee's Authentication Certificate for Bonds
of the 2006 Series]
This is one of the bonds, of the series designated therein, described
in the within mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: ______________________________
Authorized Signature
-14-
<PAGE>
ARTICLE TWO
MODIFICATION OF CERTAIN
PROVISIONS OF ORIGINAL INDENTURE
Section 2.01. Section 11.01 of the Original Indenture, as heretofore
modified by Article Two of each of the Thirteenth Supplemental Indenture, the
Fifteenth Supplemental Indenture, the Sixteenth Supplemental Indenture, the
Seventeenth Supplemental Indenture, the Nineteenth Supplemental Indenture, the
Twenty-- second Supplemental Indenture, the Twenty-third Supplemental Indenture,
the Twenty-fourth Supplemental Indenture, the Twenty-- fifth Supplemental
Indenture, the Twenty-sixth Supplemental Indenture, the Twenty-seventh
Supplemental Indenture and the Twenty-eighth Supplemental Indenture, is hereby
further modified by deleting the word "or" following the semicolon at the end of
Clause (s), by adding the word "or" following the semicolon at the end of Clause
(t) and by adding after said Clause (t) the following Clause (u):
"(u) anything herein contained to the contrary
notwithstanding, with respect to the Bonds of the 2006 Series,
(1) if default shall be made in the due and punctual payment
of any installment of interest on any Bond of the 2006 Series, when and
as such interest installment shall become due and payable, and such
default shall continue for a period of 60 days, or
(2) if default shall be made in the due and punctual
satisfaction of the sinking fund obligations provided for in Section
1.03 of the Twenty-ninth Supplemental Indenture and such default shall
continue for a period of 90 days;"
ARTICLE THREE
BONDS TO BE ISSUED AND OUTSTANDING
Section 3.01. The aggregate principal amount of bonds of the Company
issued and outstanding and presently to be issued and outstanding under the
provisions of the Original Indenture, as heretofore supplemented and modified
and hereby supplemented and modified, will be $156,155,000 consisting of (a)
$28,200,000 principal amount of First Mortgage Bonds, 9 3/8% Series due 2021,
(b) $13,870,000 principal amount of First Mortgage Bonds, 6 3/4% Pollution
Control Series due 2022, (c) $30,000,000 principal amount of First Mortgage
Bonds, 8.30% Series due 2022, (d) $4,085,000 principal amount of First Mortgage
Bonds, Pollution Control Series due 2016, (e) $20,000,000 principal amount of
First Mortgage Bonds, 6 3/8% Series due 2003, (f) $25,000,000
-15-
<PAGE>
principal amount of First Mortgage Bonds, 7.40% Series due 2023, (g) $15,000,000
principal amount of First Mortgage Bonds, 7 7/8% Series due 2025, and (h)
$20,000,000 principal amount of First Mortgage Bonds, 6.90% Series due 2006,
established by resolution of the Board of Directors and to be issued upon
compliance by the Company with the provisions of Article Five of the Original
Indenture.
ARTICLE FOUR
SUNDRY PROVISIONS
Section 4.01. This Twenty-ninth Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Original Indenture, and
shall form a part thereof, and the Original Indenture, as heretofore
supplemented and modified, is hereby confirmed. All terms used in this
Twenty-ninth Supplemental Indenture shall be taken to have the same meaning as
in the Original Indenture, as heretofore supplemented and modified, except in
cases where the context clearly indicates otherwise.
Section 4.02. The recitals contained in this Twenty-ninth Supplemental
Indenture are made by the Company and not by the Trustee; and all of the
provisions contained in the Original Indenture, as heretofore supplemented and
modified, in respect of the rights, privileges, immunities, powers and duties of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
Section 4.03. The titles of Articles and any wording on the cover of
this Twenty-ninth Supplemental Indenture are inserted for convenience only and
are not a part thereof.
Section 4.04. Although this Twenty-ninth Supplemental Indenture is
dated for convenience and for the purpose of reference as of May 1, 1996, the
actual date or dates of execution by the Company and by the Trustee are as
indicated by their respective acknowledgments hereto annexed.
Section 4.05. In order to facilitate the recording or filing of this
Twenty-ninth Supplemental Indenture, the same may be simultaneously executed in
several counterparts, each of which shall be deemed to be an original, and such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, Savannah Electric and Power Company has caused this
Twenty-ninth Supplemental Indenture to be signed in its corporate name by its
President or one of its Vice Presidents and its corporate seal to be hereunto
affixed and attested by its
-16-
<PAGE>
Secretary or one of its Assistant Secretaries, and The Bank of New York has
caused this Twenty-ninth Supplemental Indenture to be signed in its corporate
name by one of its Vice Presidents, Trust Officers or Agents and its corporate
seal to be hereunto affixed and attested by one of its Vice Presidents, Trust
Officers or Agents.
Signed, sealed and delivered by Savannah Electric and Power Company at Savannah,
Georgia this 28th day of May, 1996, in
the presence of:
- ------------------------------
- ------------------------------
- ------------------------------
Notary Public
Chatham County, Georgia
SAVANNAH ELECTRIC AND POWER
COMPANY
By:_________________________
Vice President, Treasurer
and Chief Financial Officer
Attest:_______________________
Secretary
(Corporate Seal)
Signed, sealed and delivered by The Bank of New York at Atlanta, Georgia, this
24th day of May, 1996, in the
presence of:
- ------------------------------
- ------------------------------
- ------------------------------
Notary Public
DeKalb County, Georgia
THE BANK OF NEW YORK
By:___________________________
Agent
Attest:______________________
Agent
(Corporate Seal)
-17-
<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF CHATHAM )
Before me, the undersigned Notary Public in said State duly authorized
to administer oaths, personally appeared Eileen E. Floyd, who being by me duly
sworn, deposeth and saith on oath that she is a subscribing witness to the
foregoing Twenty-ninth Supplemental Indenture executed by SAVANNAH ELECTRIC AND
POWER COMPANY, grantor, to THE BANK OF NEW YORK, as Trustee, grantee; that
Savannah Electric and Power Company executed the foregoing and within
Twenty-ninth Supplemental Indenture in the presence of this deponent and in the
presence of Joyce H. Camp, the other subscribing witness, and that Savannah
Electric and Power Company acted through K.R. Willis, its Vice President,
Treasurer and Chief Financial Officer, and Lavonne K. Calandra, its Secretary;
and the said K.R. Willis is known by this deponent to be Vice President,
Treasurer and Chief Financial Officer of Savannah Electric and Power Company,
and to have been such at the time of the execution of the said Twenty-ninth
Supplemental Indenture, and the said Lavonne K. Calandra is known by this
deponent to be Secretary of Savannah Electric and Power Company and to have been
such at the time of the execution of the said Twenty-ninth Supplemental
Indenture; that this deponent signed the said Twenty-ninth Supplemental
Indenture as a subscribing witness in the presence of said Savannah Electric and
Power Company, acting through its said Vice President, Treasurer and Chief
Financial Officer and its said Secretary, and in the presence of the said Joyce
H. Camp, the other subscribing witness; and the said Joyce H. Camp signed the
said Twenty-ninth Supplemental Indenture as a subscribing witness in the
presence of this deponent and of said Savannah Electric and Power Company,
acting as aforesaid through its said Vice President, Treasurer and Chief
Financial Officer and said Secretary.
The undersigned Notary Public further certifies that K.R. Willis and
Lavonne K. Calandra, known to me to be Vice President, Treasurer and Chief
Financial Officer and Secretary, respectively, of Savannah Electric and Power
Company, the corporation described in and which executed the foregoing
Twenty-ninth Supplemental Indenture, severally acknowledged before me that,
being informed of the contents of said Twenty-ninth Supplemental Indenture, they
executed the same voluntarily and as the act and deed of Savannah Electric and
Power Company, for the uses and purposes therein expressed, being thereunto duly
authorized by the Board of Directors of said Savannah Electric and Power
Company; and that they know the seal of said Savannah Electric and Power
Company, and that the seal affixed thereto is the corporate seal of said
Savannah Electric and Power Company, and
-18-
<PAGE>
that the foregoing Twenty-ninth Supplemental Indenture was signed, sealed and
delivered in the presence of Eileen E. Floyd and Joyce H. Camp, who then and
there respectively subscribed the same as attesting witnesses.
------------------------------
Eileen E. Floyd
Sworn to and subscribed before me this 28th day of May, 1996.
- ------------------------------
Notary Public
Chatham County, Georgia
-19-
<PAGE>
STATE OF GEORGIA )
) SS.:
COUNTY OF DEKALB )
Before me, the undersigned Notary Public in said State duly authorized
to administer oaths, personally appeared Mary Willis, who being by me duly
sworn, deposeth and saith on oath that she is a subscribing witness to the
foregoing Twenty-ninth Supplemental Indenture executed by SAVANNAH ELECTRIC AND
POWER COMPANY, grantor, to THE BANK OF NEW YORK, as Trustee, grantee; that The
Bank of New York executed the foregoing and within Twenty-ninth Supplemental
Indenture in the presence of this deponent and in the presence of Denette Love,
the other subscribing witness, and that The Bank of New York acted through
Elizabeth Talley, its Agent, and Peggy McWhorter, its Agent; and the said
Elizabeth Talley is known by this deponent to be the Agent of The Bank of New
York, and to have been such at the time of the execution of the said
Twenty-ninth Supplemental Indenture, and the said Peggy McWhorter is known by
this deponent to be the Agent of The Bank of New York and to have been such at
the time of the execution of the said Twenty-ninth Supplemental Indenture; that
this deponent signed the said Twenty-ninth Supplemental Indenture as a
subscribing witness in the presence of said The Bank of New York, acting through
its said Agents, and in the presence of the said Denette Love, the other
subscribing witness; and the said Denette Love signed the said Twenty-ninth
Supplemental Indenture as a subscribing witness in the presence of this deponent
and of said The Bank of New York, acting as aforesaid through its said Agents.
The undersigned Notary Public further certifies that Elizabeth Talley
and Peggy McWhorter, each known to me to be Agent of The Bank of New York, the
corporation described in and which executed the foregoing Twenty-ninth
Supplemental Indenture, severally acknowledged before me that, being informed of
the contents of said Twenty-ninth Supplemental Indenture, they executed the same
voluntarily and as the act and deed of The Bank of New York, for the uses and
purposes therein expressed, being thereunto duly authorized by the Board of
Directors of said The Bank of New York; and that they know the seal of said The
Bank of New York, and that the seal affixed thereto is the corporate seal of
said The Bank of New York, and that the foregoing Twenty-ninth Supplemental
Indenture was signed, sealed and delivered in the
-20-
<PAGE>
presence of Denette Love and Mary Willis, who then and there respectively
subscribed the same as attesting witnesses.
Mary Willis
Sworn to and subscribed before me this 24th day of May, 1996.
- ------------------------------
Notary Public
DeKalb County, Georgia
-21-
<TABLE>
<CAPTION>
Exhibit 12
5/16/96
SAVANNAH ELECTRIC AND POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1995
and the twelve months ended April 30, 1996
<S> <C> <C> <C> <C> <C> <C>
Twelve
Months
Year ended December 31, Ended
========================================================== April 30,
1991 1992 1993 1994 1995 1996
--------------------------Thousands of Dollars--------------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $38,243 $33,901 $ 34,677 36,886 $38,638 $ 37,983
Federal and state income taxes 13,872 7,861 13,712 13,800 12,368 11,032
Deferred income taxes, net 1,601 5,947 607 1,625 4,359 5,378
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 103 289 699 1,225 450 452
Rentals 805 818 831 663 517 598
-------- -------- --------- ------------ -------- ------------
Earnings as defined $54,624 $48,816 $ 50,526 54,199 $56,332 $ 55,443
======== ======== ========= ============ ======== ============
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $11,486 $10,870 $10,696 12,585 $ 12,380 $ 12,076
Interest on interim obligations 25 15 240 205 135 146
Amort of debt disc, premium and expense, net 380 427 535 550 448 403
Other interest charges 525 466 340 337 406 373
Rentals 805 818 831 663 517 598
-------- -------- -------- ------------ --------- -------------
Fixed charges as defined $13,221 $12,596 $12,642 14,340 $ 13,886 $ 13,596
======== ======== ======== ============ ========= =============
RATIO OF EARNINGS TO FIXED CHARGES 4.13 3.88 4.00 3.78 4.06 4.08
==== ==== ==== ==== ==== ====
</TABLE>
Exhibit 23
Bouhan, Williams & Levy LLP
P. O. Box 2139
Savannah, Ga. 31498
912-236-2491
May 28, 1996
Savannah Electric and Power Company
600 East Bay Street
Savannah, Georgia 31401
Dear Sirs:
We hereby consent to the reference to our firm under the caption "Legal
Opinions and Experts" in the Prospectus Supplement of Savannah Electric and
Power Company (the "Company") dated May 23, 1996, relating to $20,000,000
aggregate principal amount of First Mortgage Bonds, 6.90% Series due May 1,
2006, and to the filing hereof with the Securities and Exchange Commission as an
exhibit to the Company's Current Report on Form 8-K dated May 23, 1996.
Very truly yours,
/s/Bouhan, Williams & Levy LLP
Exhibit 25
=====================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
SAVANNAH ELECTRIC AND POWER COMPANY
(Exact name of obligor as specified in its charter)
Georgia 58-0418070
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 Bay Street, East
Savannah, Georgia 31401
(Address of principal executive offices) (Zip code)
----------------------
First Mortgage Bonds
(Title of the indenture securities)
=====================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, N.Y.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as an exhibit
hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of
1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
<PAGE>
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of
New York, a corporation organized and existing under the laws of the
State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in The City of New York, and State of New York, on the 24th day of May,
1996.
THE BANK OF NEW YORK
By: /S/ ROBERT F. MCINTYRE
Name: ROBERT F. MCINTYRE
Title: VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 1995, published in accordance with
a call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin ....................... $4,500,312
Interest-bearing balances ............... 643,938
Securities:
Held-to-maturity securities ............. 806,221
Available-for-sale securities ........... 2,036,768
Federal funds sold and securities
purchased under agreements to resell.....
in domestic offices of the bank:
Federal funds sold ...................... 4,166,720
Securities purchased under
agreements to resell..................... 50,413
Loans and lease financing receivables:
Loans and leases, net of unearned
income ............................27,068,535
LESS: Allowance for loan and
lease losses .........................520,024
LESS: Allocated transfer risk
reserve:................................1,000
Loans and leases, net of unearned
income and allowance and reserve... 26,547,511
Assets held in trading accounts ............. 758,462
Premises and fixed assets (including
capitalized leases) ..................... 615,330
Other real estate owned ........... 63,769
Investments in unconsolidated
subsidiaries and associated
companies ......................... 223,174
Customers' liability to this bank on
acceptances outstanding ......... 900,795
Intangible assets ................. 212,220
Other assets ...................... 1,186,274
---------
Total assets ...................... $42,711,907
-----------
LIABILITIES
Deposits:
In domestic offices ..................... $21,248,127
Noninterest-bearing .....................9,172,079
Interest-bearing ........................ 12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ........ 9,535,088
Noninterest-bearing ..................... 64,417
Interest-bearing ........................ 9,470,671
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
its Edge and Agreement subsid-
iaries, and in IBFs:
Federal funds purchased ................. 2,095,668
Securities sold under agreements
to repurchase ........................ 69,212
Demand notes issued to the U.S.
Treasury ................................ 107,340
Trading liabilities ......................... 615,718
Other borrowed money:
With original maturity of one year or less ... 1,638,744
With original maturity of more than
one year ............................. 120,863
Bank's liability on acceptances
executed and outstanding ............. 909,527
Subordinated notes and debentures ........... 1,047,860
Other liabilities ........................... 1,836,573
---------
Total liabilities ........................... 39,224,720
----------
EQUITY CAPITAL
Common stock ................................ 942,284
Surplus ..................................... 525,666
Undivided profits and capital
reserves ................................ 1,995,316
Net unrealized holding gains (losses)
on available-for-sale securities ........ 29,668
Cumulative foreign currency
translation adjustments ................. ( 5,747)
-----------
Total equity capital ........................ 3,487,187
---------
Total liabilities and equity capital ........ $42,711,907
-----------
<PAGE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot
Thomas A. Renyi Directors
Samuel F. Chevalier
Exhibit 26(a)
SAVANNAH ELECTRIC AND POWER COMPANY
------------
NOTICE OF INVITATION FOR PROPOSALS
FOR THE PURCHASE OF FIRST MORTGAGE BONDS
AND PREFERRED STOCK
SAVANNAH ELECTRIC AND POWER COMPANY is inviting proposals for the
purchase from it of its First Mortgage Bonds and Preferred Stock (which may have
a par value of up to $100 per share) aggregating up to $50,000,000 in principal
amount or par value, as the case may be. The Bonds and the Stock each may be
issued and sold by the Company in one or more series. Proposals are to be
submitted to the Company in accordance with such procedures and at such time or
times on such day or days as shall be designated by the Company by notice to
prospective bidders in writing or by telephone, confirmed in writing, as
provided in the terms and conditions relating to proposals. Such notice or
notices will also designate the principal amount of Bonds or the number of
shares and par value per share of Stock for which proposals are to be submitted.
Copies of a prospectus relating to the Bonds and the Stock and of the terms and
conditions relating to proposals for the purchase of the Bonds and the Stock may
be obtained at the office of Southern Company Services, Inc., One Wall Street,
42nd Floor, New York, N.Y. Proposals will be considered only from persons who
have received copies of such prospectus and only if made in accordance with and
subject to such terms and conditions and any notice given by the Company
pursuant thereto. Prior to the acceptance of any bid, the bidder will be
furnished a copy of a prospectus which meets the requirements of Section 10(a)
of the Securities Act of 1933 at that time.
SAVANNAH ELECTRIC AND POWER COMPANY
By ARTHUR M. GIGNILLIAT, JR.,
President and Chief
Executive Officer.
Dated: May 16, 1996.
Exhibit 26(b)
SAVANNAH ELECTRIC AND POWER COMPANY
-----------------------------
TERMS AND CONDITIONS
Relating to Proposals for the Purchase of
First Mortgage Bonds and Preferred Stock
May 16, 1996
SAVANNAH ELECTRIC AND POWER COMPANY (the "Company") hereby invites
proposals, subject to the terms and conditions hereof, for the purchase from it
of its First Mortgage Bonds, to mature on a date or dates to be determined as
provided in Section 4 hereof, and Preferred Stock (which may have a par value of
up to $100 per share) aggregating up to $50,000,000 in principal amount or par
value, as the case may be. Such First Mortgage Bonds and such Preferred Stock
(collectively, the "Securities") each may be issued and sold by the Company in
one or more series. As used herein, the terms "Bonds" and "Stock" mean,
respectively, the First Mortgage Bonds or Preferred Stock of each series. A
brief summary of the terms of the Securities is contained in the Registration
Statement and Prospectus referred to below.
1. INFORMATION RESPECTING THE COMPANY AND
THE SECURITIES
Prospective bidders may examine, at the office of Southern Company
Services, Inc., One Wall Street, 42nd Floor, New York, N.Y. 10005, at any time
during business hours, the following:
(a) the form of proposed Supplemental Indenture, between the Company
and The Bank of New York, as Trustee, under which the Bonds are to be issued and
secured;
(b) the form of proposed amendment to the Company's Charter creating
the Stock;
(c) the Registration Statement (including exhibits) with respect to the
Securities, in the form in which it has become effective, and the related
Prospectus (including the documents incorporated therein by reference pursuant
to Item 12 of Form S-3);
(d) the separate forms of proposal, to be used by bidders in offering
to purchase the Bonds and the Stock (each a "Form of Proposal"), which include
the forms of contract for the purchase of the Bonds and the Stock (each a
"Purchase Contract");
(e) the form of questionnaire, to be used by prospective bidders in
furnishing information to the Company and the Trustee and, in the case of a
group of bidders, in designating the Representative of the members of such
group, referred to in Section 2 hereof;
(f) the order or orders of the Georgia Public Service Commission with
respect to the issuance of the Securities; and
(g) memoranda by Dewey Ballantine (referred to in Section 9 hereof)
with respect to the necessity for the qualification of the Securities for sale
under the securities or "blue sky" laws of various jurisdictions.
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Copies of said documents in reasonable quantities (except certain
exhibits to the Registration Statement) will be supplied on request, so long as
available, to prospective bidders. The Company reserves the right to amend or
supplement such Registration Statement and Prospectus (including the documents
incorporated therein by reference pursuant to Item 12 of Form S-3) and to make
changes in the form of any documents relating to the issuance of the Securities.
The Company will furnish copies of such amendments, supplements or changes and
of any filing pursuant to Section 13 or 14 of the Securities Exchange Act of
1934 to Dewey Ballantine (referred to in Section 9 hereof) and, on request, to
any prospective bidder who shall have furnished a questionnaire to the Company
as provided in Section 2 hereof, or to the Representative of any group of
prospective bidders designated as provided in Section 2 hereof.
2. INFORMATION RESPECTING THE BIDDERS
TO BE FURNISHED THE COMPANY
No proposal will be considered unless the bidder (or, in the case of a
group of bidders, each bidder) shall have furnished to the Company in
triplicate, at the office of Southern Company Services, Inc., One Wall Street,
42nd Floor, New York, N.Y. 10005, not less than two hours prior to the time for
submission of proposals, the form of questionnaire referred to above, properly
filled out and signed. The Company, however, reserves the right to waive any
irregularity in any questionnaire and to extend, either generally or in specific
instances, the time for furnishing questionnaires and to permit the furnishing
of information required by the form of questionnaire by telegram or other means
of communication satisfactory to it. Notwithstanding the furnishing of such
questionnaires to the Company, any prospective bidder or group of prospective
bidders may thereafter determine not to bid, or any of the several members of a
group may withdraw therefrom and may thereafter determine not to bid or
determine to bid as a member of some other group. One or more additional members
may be included in a group, with the consent of the Company, after the time (or
any extended time) for furnishing questionnaires, if the information required by
the form of questionnaire as to each such additional member is furnished to the
Company, at or before the time fixed by the Company for such purpose, by means
of a questionnaire properly filled out and signed or by such other means as the
Company may have approved for such purpose.
In the case of a proposal by a group of bidders, the several bidders in
the group shall act through a duly authorized representative or representatives
(the "Representative"), who may be included in such group, and who shall be
designated by each member of such group in, or in the manner authorized by, the
form of questionnaire furnished by such member. In case the Representative so
designated consists of two or more persons, the Company shall be entitled to
assume in all matters contemplated hereby that any one of such persons is fully
authorized to act on behalf of the Representative.
3. CONTENTS OF PROPOSALS
Each proposal must be for the purchase of all the Bonds or Stock, as
the case may be, designated by the Company as provided in Section 4 hereof and
may be made by a single bidder or by a group of bidders. In case the proposal of
a group of bidders is accepted in writing by the Company, the obligations of the
members of the group shall be several, and not joint, to purchase the respective
principal amounts of the Bonds or numbers of shares of Stock, as the case may
be, indicated in the proposal. No bidder (including in such term for the purpose
of this restriction any and all affiliates of a specified bidder) may submit or
participate in more than one proposal for the purchase of a particular series of
the Securities.
Each proposal for the purchase of Bonds shall specify the interest rate
(which shall be an integral multiple of .01% or 1/8 of 1%) and the price
(exclusive of accrued interest) to be paid to the Company for the Bonds (which
shall not be less than 98%, nor more than 101 3/4%, of the principal amount of
the Bonds proposed to be purchased). Accrued interest from the first day of the
calendar month during which the Bonds are issued to the date of payment and
delivery also will be paid to the Company by the purchaser or purchasers.
Each proposal for the purchase of Stock shall specify (a) the annual
dividend rate (which shall be an integral multiple of .01%) or, if the Company
shall have given notice as provided in Section 4 hereof that the Stock
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will have an adjustable dividend rate, the Applicable Rate Adjustment
(hereinafter defined), (b) the price to be paid to the Company for the Stock
(which shall be not less than 100% nor more than 102% of the par value per
share), which shall also be the price (exclusive of accrued dividends, if any)
at which the Stock shall be initially offered to the public, and (c) the amount
per share to be paid by the Company as compensation to the Representative for
the accounts of the respective purchasers under the Purchase Contract for their
services in purchasing and making a public offering of the Stock. The
"Applicable Rate Adjustment" (which shall be an integral multiple of .01%) is
the premium or discount to be used in calculating the Applicable Rate (as
defined in a supplement to the Prospectus with respect to the Securities) from
time to time in effect if the Stock will have an adjustable dividend rate.
A proposal confirmed in writing as provided in Section 4 hereof on
behalf of a group of bidders shall give the names of the members in the group
but may, at the time of such confirmation, omit the amounts or numbers of
Securities to be purchased by the members of such group; but, in the case of
such omission, the Representative, on behalf of the successful bidders, shall,
and by the submission of such proposal agrees to, insert promptly in Exhibit A
to the Form of Proposal, prior to its acceptance in writing by the Company and
in any event within one hour after the time fixed for the submission of
proposals, the respective amounts or numbers of Securities to be purchased
severally by such bidders, all with the same force and effect as if the same had
been included in such proposal at the time of the submission thereof.
The Representative submitting a successful proposal may, forthwith upon
discovery, correct any error which it has made in the proposal in specifying the
bidders or the amount or number of Securities to be purchased by any bidder or
bidders at a different amount or number than authorized by such bidder or
bidders; and if, after all such corrections, a proposal is accepted which
provides for the purchase of less than all or more than all of the Securities,
the Representative submitting such proposal shall be deemed to have increased or
decreased, as the case may be, to the extent of the discrepancy, the amount or
number of Securities offered to be purchased by it. In case such Representative
consists of two or more persons, such increase or decrease in the amount or
number of Securities shall be allocated between or among them as they shall
agree; provided that, if there shall be no such agreement, then such increase or
decrease shall be allocated between or among them in proportion to the amount or
number of Securities set forth opposite their respective names in Exhibit A
attached to the Form of Proposal. If in the case of a decrease the discrepancy
is greater than the amount or number of Securities offered to be purchased by
the Representative, then to the extent that the discrepancy is greater than such
amount or number, the amount or number of Securities offered to be purchased by
each other bidder shall be proportionately reduced. Any correction or adjustment
in the amount or number of Securities or in the specification of any bidder made
or provided for hereunder shall, for all purposes of the Purchase Contract, be
or be deemed to have been reflected in Exhibit A attached to the Form of
Proposal.
4. SUBMISSION OF PROPOSALS
All proposals must be submitted to the Company in accordance with such
procedures and at such time or times on such day or days as shall be designated
by the Company by notice in writing or by telephone, confirmed in writing. The
Company in its discretion may, but will not be obligated to, give any such
notice to any prospective bidder who shall have furnished a questionnaire to the
Company as provided in Section 2 hereof, or to the Representative of any group
of prospective bidders designated as provided in Section 2 hereof, or to any
other prospective bidders. The Company will designate in each such notice the
principal amount of Bonds or the number of shares and par value per share of
Stock, as the case may be, for which proposals are to be submitted at such time.
Each such notice with respect to Bonds will also designate the term thereof,
which shall be not more than 40 years. Each such notice with respect to Stock
also will state whether there will be any sinking or purchase fund therefor and,
if so, the terms and conditions thereof; and whether the Stock will have an
adjustable dividend rate and, if so, (a) the minimum and maximum dividend rates,
(b) the "Base Rate" to be used in calculating the "Initial
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Dividend Rate" and (c) the date through which the "Initial Dividend Rate" shall
be in effect. In the event that the Company shall give notice that the Stock
will have an adjustable dividend rate, the "Initial Dividend Rate", applicable
only through the date designated by the Company in such notice, shall be the
"Base Rate" so designated plus or minus the Applicable Rate Adjustment specified
in the successful proposal.
All proposals must be confirmed in writing on the appropriate Form of
Proposal, signed by the Representative on behalf of the members of a group of
bidders, or in the case of a single bidder by such bidder with appropriate
changes in the text of the Form of Proposal.
The Company reserves the right in its discretion from time to time to
postpone any time for submission of proposals designated as provided herein.
In compliance with paragraph (2) of Rule 515-4-1-.15 of the Utility
Rules of the Georgia Public Service Commission applying to Stock and Bond
Applications, prospective bidders are hereby advised that no bid is invited, nor
will any bid be accepted, from any person who, prior to the submission of bids,
has performed any service for compensation in connection with the issuance and
sale of the Securities or who has received or will receive any fee or
compensation in connection with the issuance and sale of the Securities (except
as successful bidder), nor is any bid invited, nor will any bid be accepted,
under which officers or directors of the Company would benefit from or share in
the proceeds from the Securities.
5. ACCEPTANCE OR REJECTION OF PROPOSALS
All proposals will be received by the Company in accordance with the
procedures and at the time or times designated as provided in Section 4 hereof.
Within three hours after each time designated for the submission of proposals,
the Company (subject to the provisions of the next following paragraph) will by
announcement accept the proposal which results in the lowest "annual cost of
money" to it for the Bonds or Stock, as the case may be, determined by the
Company in accordance with the formulae set forth in Section 6 hereof, and any
proposal not so accepted within such time shall be deemed to have been rejected.
Each proposal will be accepted or rejected in its entirety. In case the Company
shall receive two or more proposals resulting in an identical lowest "annual
cost of money" for the Bonds or Stock, as the case may be, the Company (subject
to the provisions of the next following paragraph) will forthwith afford to the
bidders making such identical proposals an opportunity to improve their bids.
Thereupon, if no improved bid shall be made, or if two or more proposals again
result in an identical lowest "annual cost of money" for the Bonds or Stock, as
the case may be, the Company may accept any one of such proposals in its
discretion. If in the case of identical proposals a bid is not being improved,
the proposal submitted by the bidder or group of bidders making such proposal
need not be resubmitted to be considered.
The Company reserves the right (a) to reject all proposals at or after
the submission thereof, and (b) to reject the proposal of any bidder or of any
group of bidders (i) if such bidder or any member of such group of bidders is in
such relationship with The Bank of New York, or its direct or indirect parent
companies, as would disqualify said Bank from acting as Trustee under the
Company's Indenture of Mortgage dated as of March 1, 1945, as supplemented, if
the proposal of such bidder or group of bidders should be accepted; (ii) if the
Company, in the opinion of its counsel, may not lawfully sell the Bonds or
Stock, as the case may be, to such bidder or to any member of such group of
bidders and, in either of such events in the case of a group of bidders, if
within one hour after the time at which the bids are required to be submitted,
the member or members of such group causing such disqualification or illegality
have not withdrawn from the group and the remaining members, including
substituted members, if any, have not agreed to purchase the Bonds or Stock, as
the case may be, which such withdrawing member or members had proposed to
purchase; (iii) if, in the opinion of the Company, such bidder or group of
bidders would not be able to comply with the terms of the Purchase Contract if
such proposal were accepted; or (iv) if, in the opinion of counsel for the
Company, the Company would not be able to comply with the terms of the
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Purchase Contract if such proposal were accepted. The proposal of any bidder or
group of bidders rejected by the Company by reason of clause (b) of this
paragraph shall be disregarded solely for the purpose of determining the
proposal which results in the lowest "annual cost of money" for the Bonds or
Stock, as the case may be.
Prior to the acceptance by the Company of any proposal, the bidder or
bidders thereunder will be furnished a copy of a prospectus relating to the
Securities which meets the requirements of Section 10(a) of the Securities Act
of 1933 at that time.
6. DETERMINATION OF "ANNUAL COST OF MONEY"
The "annual cost of money" to the Company for the Securities will be
determined by the Company, such determination by the Company to be final, as
follows:
The "annual cost of money" with respect to each proposal for the
purchase of Bonds will be determined as twice the semi-annual rate necessary to
discount the semi-annual debt service payments (interest or interest and
principal, as due) to amounts which in the aggregate equal the purchase price
for the Bonds, exclusive of accrued interest. For this purpose the entire
principal amount of the Bonds shall be deemed to remain outstanding during the
term thereof designated by the Company as provided in Section 4 hereof. The
"annual cost of money" for each bid will be expressed as a percentage and will
be rounded to the fourth decimal place.
The "annual cost of money" with respect to each proposal for the
purchase of Stock shall be determined by dividing the annual dollar amount of
the dividend based upon the dividend rate specified in such proposal (or, if the
Stock will have an adjustable dividend rate, the annual dollar amount of the
dividend based upon a rate equal to the "Base Rate" designated by the Company
plus or minus the Applicable Rate Adjustment specified in such proposal) by the
price per share specified in such proposal to be paid to the Company after
deducting the compensation per share to be paid by the Company.
7. DETERMINATION OF REDEMPTION PROVISIONS
As soon as practicable after the acceptance in writing of a successful
proposal for Bonds, the premiums payable upon redemption of the Bonds will be
determined by the Company, such determination by the Company to be final, as
follows:
(a) The term "redemption period" shall mean the twelve months'
period beginning on the first day of the calendar month during which
the Bonds are issued, beginning with the calendar year during which the
Bonds are issued, and ending on the last day of the preceding calendar
month of the next succeeding calendar year.
(b) The regular redemption price for the first redemption
period shall be the initial public offering price of the Bonds (stated
as a percentage of their principal amount) plus a percentage of their
principal amount equal to the interest rate of the Bonds, such
redemption price being hereinafter referred to as the "initial
redemption price"; and for each redemption period thereafter, the
regular redemption price, before any adjustment pursuant to paragraph
(d) below, shall be the initial redemption price decreased for each one
of such redemption periods by an amount equal to the Applicable
Fraction (as defined below) of the excess of the initial redemption
price over the principal amount until the redemption period, if any,
for which the regular redemption price shall be reduced to the
principal amount of the Bonds; provided that, if the regular redemption
price for any redemption period as so calculated would be less than the
special redemption price for the same redemption period calculated as
hereinafter provided (except for any redemption period for which the
regular redemption price would be reduced to the principal amount of
the
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Bonds), then the regular redemption price for such period shall be
increased to and shall be the same as the special redemption price for
such period; in each case, together with accrued interest to the date
fixed for redemption; provided, however, that, except as the Company
may otherwise specify by notice, none of the Bonds shall be redeemed at
a regular redemption price prior to a date five years from the first
day of the calendar month during which the Bonds are issued if such
redemption is for the purpose or in anticipation of refunding such Bond
through the use, directly or indirectly, of funds borrowed by the
Company at an effective interest cost to the Company (computed in
accordance with generally accepted financial practice) of less than the
effective interest cost to the Company of the Bonds. The term
"Applicable Fraction", as used herein, means a fraction the numerator
of which is one and the denominator of which is the lesser of (i) 20
and (ii) the term of the Bonds minus three; provided, however, that the
denominator shall never be less than four.
(c) The special redemption price for any redemption period
shall be such amount as will produce a yield from the first day of the
period to the date of maturity which will be equal to the yield to
maturity calculated on the initial public offering price, a term equal
to the term of the Bonds and the interest rate of the Bonds; provided
that, if the yield to maturity, as so computed, does not result in a
multiple of 1/100th of 1%, it shall be reduced to the next lower such
multiple; and except that, for any redemption period for which the
regular redemption price shall be the principal amount of the Bonds,
the special redemption price for such period shall likewise be the
principal amount of the Bonds; and except that, if the initial public
offering price of the Bonds is the principal amount thereof or less,
the special redemption price during all redemption periods shall be the
principal amount of the Bonds; in each case, together with accrued
interest to the date fixed for redemption.
(d) For any period in which the excess of the redemption price
over the principal amount is a multiple of 1/100th of 1% (determined by
expressing the redemption price as a percentage and rounding to the
fourth decimal place), the excess shall be the redemption premium; for
each other period the excess increased to the next higher such multiple
of 1/100th of 1% shall be the redemption premium; provided that the
special redemption price shall never be more than the greater of the
principal amount of the Bonds or the initial public offering price of
the Bonds.
The initial public offering price of the Bonds for the purpose of the
above determinations shall be the price (exclusive of accrued interest) at which
the Bonds are to be initially offered for sale to the public by the successful
bidder or bidders as set forth in the prospectus supplement to be prepared
following the acceptance of a successful bid; provided, however, that in the
event the successful bidder or bidders shall specify at the time of acceptance
of the successful bid that they do not intend to make a public offering of the
Bonds, the initial public offering price shall, for this purpose, be deemed to
be the price (exclusive of accrued interest) to be paid by the successful bidder
or bidders to the Company.
As soon as practicable after the acceptance in writing of a successful
proposal for Stock, the redemption prices of the Stock will be determined by the
Company, such determination by the Company to be final, and shall be an amount
equal to the initial public offering price of the Stock, plus an amount per
share (expressed in dollars and cents) equal to (a) if the Stock will not have
an adjustable dividend rate, the annual dividend if the date of redemption is on
or prior to the fifth anniversary of the first day of the calendar month during
which the Stock is issued (the "Key Date"), and without premium for redemptions
thereafter, or (b) if the Stock will have an adjustable dividend rate, the
annual dividend calculated based upon the "Initial Dividend Rate" if the date of
redemption is on or prior to the fifth anniversary of the Key Date, and without
premium for redemptions thereafter, to which shall be added accrued dividends in
each case to the date of redemption; provided, however, that no share of the
Stock shall be redeemed prior to the fifth anniversary of the Key Date, if such
redemption is for the purpose or in anticipation of refunding such share
directly or indirectly through the incurring of debt, or through the issuance of
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stock ranking equally with or prior to the Stock as to dividends or assets, if
such debt has an effective interest cost to the Company (computed in accordance
with generally accepted financial practice) or such stock has an effective
dividend cost to the Company (so computed) of less than the effective dividend
cost to the Company of the Stock (if the Stock will have an adjustable dividend
rate, the effective dividend cost to the Company of the Stock to be based upon
the "Initial Dividend Rate"). If any redemption price, as so computed, does not
result in a multiple of one cent, it shall be increased to the next higher such
multiple.
The initial public offering price of the Stock for the purpose of the
above determinations shall be the price (exclusive of accrued dividends, if any)
at which the Stock is to be initially offered for sale to the public by the
successful bidder or bidders as set forth in the prospectus supplement to be
prepared following the acceptance of the successful bid.
8. PURCHASE CONTRACT AND PROSPECTUS SUPPLEMENT
Forthwith upon the acceptance in writing of a proposal (a) the Purchase
Contract shall become effective without any separate execution thereof and shall
constitute the agreement between the Company and the successful bidder or
bidders; (b) the successful bidder, or, in the case of a proposal by a group of
bidders, the Representative on behalf of the successful bidders, shall furnish
to the Company in writing the information regarding the bidders and the public
offering, if any, as is required to complete a prospectus supplement and any
further information regarding the bidders and the public offering, if any, which
may be required by the Georgia Public Service Commission; and (c) upon
performance by the successful bidder or bidders, and their Representative, of
their obligations under Sections 3, 4 and 8 hereof, all rights of the Company
and of the successful bidder or bidders under an accepted proposal shall be
determined solely in accordance with the terms of the Purchase Contract.
9. OPINION OF COUNSEL FOR THE PURCHASERS
Dewey Ballantine, 1301 Avenue of the Americas, New York, New York, have
been selected by the Company as counsel for the purchasers to give to each
successful bidder or bidders an opinion with respect to the Bonds or Stock, as
the case may be, substantially in the respective forms attached as Exhibit 3 to
the Purchase Contract. Such counsel have participated in the preparation of
certain of the documents under which the Securities are to be issued and have
reviewed or will review the corporate proceedings with respect to the Securities
and the proceedings before the Georgia Public Service Commission and the
Securities and Exchange Commission and the orders of said commissions with
respect to the Securities. Their compensation and disbursements are, under the
terms of the Purchase Contract, to be paid by the successful bidder or bidders,
except as otherwise provided in the Purchase Contract. Such counsel will, on
request, advise any prospective bidder, or the Representative of any group of
prospective bidders, of the amount of such compensation and of the estimated
amount of such disbursements to be paid by the successful bidder or bidders for
the Securities.
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10. WAIVER OF IRREGULARITIES
The Company reserves the right to waive any failure on the part of any
bidder or group of bidders to comply with the terms and conditions hereof.
SAVANNAH ELECTRIC AND POWER COMPANY
By ARTHUR M. GIGNILLIAT, JR.,
President and Chief
Executive Officer.
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