Exhibit 1.2
$60,000,000 Series H 5.25% Senior Notes
due July 15, 2033
GULF POWER COMPANY
UNDERWRITING AGREEMENT
July 10, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One First Union Center, TW-8
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters listed on Schedule I hereto.
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with you and the other Underwriter
named in Schedule I hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom you are acting as representatives (in such capacity you shall
hereinafter be referred to as the "Representatives"), with respect to the sale
by the Company and the purchase by the Underwriters, acting severally and not
jointly, of $60,000,000 aggregate principal amount of the Series H 5.25% Senior
Notes due July 15, 2033 (the "Senior Notes") as set forth in Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The Senior Notes
will be issued pursuant to an indenture, dated as of January 1, 1998, as
heretofore supplemented (the "Base Indenture"), between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), and as further supplemented by a eighth supplemental indenture,
dated as of July 22, 2003, to the Base Indenture relating to the Senior Notes
(the "Supplemental Indenture" and, together with the Base Indenture and any
other amendments or supplements thereto, the "Indenture"), between the Company
and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
- ---------------------------------
(a) A registration statement on Form S-3 (File Nos. 333-104449,
333-104449-01 and 333-104449-02) in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance
with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration
statement and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all documents
incorporated by reference therein); and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the best
knowledge of the Company, threatened by the Commission (any
preliminary prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the 1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became effective,
including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes,
in the form in which it was included in the Registration Statement at
the time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the 1934 Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and
the Prospectus as amended or supplemented in final form by a
prospectus supplement relating to the Senior Notes in the form in
which it is filed with the Commission, pursuant to Rule 424(b) under
the 1933 Act in accordance with Section 3(f) hereof, including any
documents incorporated by reference therein as of the date of such
filing, being hereinafter called the "Final Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder, and as of
such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder and, when read together
with the Prospectus as it otherwise may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the Company makes no
warranty or representation to the Underwriters with respect to: (A)
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters through the Representatives expressly for use in the
Final Supplemented Prospectus; or (B) any information set forth in the
Final Supplemented Prospectus under the captions "Description of the
Series H Senior Notes-- Book-Entry Only Issuance-- The Depository
Trust Company," "The Policy and the Insurer" and "Experts" in the
prospectus supplement to the Prospectus dated July 10, 2003 or in
Appendix A thereto.
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects
with the applicable provisions of the 1933 Act, the 1934 Act, the 1939
Act (hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date of the
Final Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein not misleading in the case of the Registration Statement and
any amendment thereto, and, in the light of the circumstances under
which they were made, not misleading in the case of the Final
Supplemented Prospectus and any Prospectus as further amended or
supplemented; except that the Company makes no warranties or
representations with respect to: (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "1939
Act"); (B) statements or omissions made in the Registration Statement
or the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters through the Representatives expressly for use therein; or
(C) any information set forth in the Final Supplemented Prospectus
under the captions "Description of the Series H Senior Notes--
Book-Entry Only Issuance-- The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of Maine, is duly qualified to carry on its business as a
foreign corporation under the laws of the States of Florida, Georgia
and Mississippi, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement and the Indenture and to issue and
sell the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date (as hereinafter defined), will have been duly executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of the Indenture by the Trustee, the Indenture
will, on the Closing Date, constitute a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at
law or in equity) (the "Enforceability Exceptions"); the Indenture
will conform in all material respects to all statements relating
thereto contained in the Final Supplemented Prospectus; and, on the
Closing Date, the Indenture will have been duly qualified under the
1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
(k) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guaranty insurance
policy (the "Insurance Policy") issued by XL Capital Assurance Inc.
(the "Insurer"), insuring the payment of principal and interest on the
Senior Notes, when due.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended; (C) the qualification
of the Indenture under the 1939 Act; (D) the approval of the Florida
Public Service Commission (the "Florida Commission"); and (E) such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the Registration
Statement and the Final Supplemented Prospectus, together with the
related schedules and notes, present fairly, in all material respects,
the financial position, results of operations and cash flows of the
Company as of and for the dates indicated; said financial statements
have been prepared in conformity with accounting principles generally
accepted in the United States ("GAAP") applied on a consistent basis
(except that the unaudited financial statements may be subject to
normal year-end adjustments) throughout the periods involved and
necessarily include amounts that are based on the best estimates and
judgments of management. The selected financial data and the summary
financial information included in the Registration Statement and the
Final Supplemented Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the
audited and unaudited financial statements incorporated by reference
in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
----------------------------------------------
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of Senior Notes set forth in Schedule I
to this Agreement opposite the name of such Underwriter (plus any
additional amount of Senior Notes that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof),
at a price equal to 96.85% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes shall
be made at the offices of Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York 10019 at 10:00 A.M., New York City time,
on July 22, 2003 (unless postponed in accordance with the provisions of
Section 10) or such other time, place or date as shall be agreed upon
by the Representatives and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). Payment shall be
made to the Company by wire transfer in federal funds at the Closing
Date against delivery of the Senior Notes to the Representatives. It is
understood that each Underwriter has authorized the Representatives,
for each Underwriter's account, to accept delivery of, receipt for, and
make payment of the principal amount of the Senior Notes which each
Underwriter has agreed to purchase. The Representatives, individually
and not as representatives of the Underwriters, may (but shall not be
obligated to) make payment of the principal amount of the Senior Notes
to be purchased by any Underwriter whose payment has not been received
by the Closing Date, but such payment shall not relieve such
Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Representatives not later than 12:00 Noon, New York City
time, on the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as
------------------------
follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an
exhibit thereto, except exhibits incorporated by reference, unless
specifically requested). As soon as the Company is advised thereof, it
will advise the Representatives orally of the issuance of any stop
order under the 1933 Act with respect to the Registration Statement,
or the institution of any proceedings therefor, of which the Company
shall have received notice, and will use its best efforts to prevent
the issuance of any such stop order and to secure the prompt removal
thereof, if issued. The Company will deliver to the Representatives
sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all
supplements and amendments thereto (in each case without exhibits) for
distribution to the Underwriters and, from time to time, as many
copies of the Prospectus and the Final Supplemented Prospectus as the
Underwriters may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus relating
to the offering of the Senior Notes in such quantities as the
Underwriters may from time to time reasonably request. If, during the
period (not exceeding nine months) when the delivery of a prospectus
shall be required by law in connection with the sale of any Senior
Notes by an Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an
amendment of the Final Supplemented Prospectus in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus or Prospectus
in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation of
purchases of the Senior Notes and (ii) at its expense, make any such
filing or prepare and furnish to the Underwriters a reasonable number
of copies of a supplement or supplements or an amendment or amendments
to the Final Supplemented Prospectus which will supplement or amend
the Final Supplemented Prospectus so that, as supplemented or amended,
it will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances when the Final Supplemented
Prospectus is delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Senior Notes after the
expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements or amendments
to the Final Supplemented Prospectus, complying with Section 10(a) of
the 1933 Act. During the period specified in the second sentence of
this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required
under the 1934 Act and the rules and regulations thereunder; provided,
that the Company shall not file such documents or amendments without
also furnishing copies thereof prior to such filing to the
Representatives and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representatives may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) The Company will use its best efforts to effect the listing of the
Senior Notes on the New York Stock Exchange.
(f) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representatives of such filing and to confirm such advice in
writing.
(g) During a period of 15 days from the date of this Agreement, the
Company will not, without the Representatives' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement and the
Series G Senior Notes). The Representatives agree that commercial
paper or other debt securities with scheduled maturities of less than
one year are not subject to this Section 3(g).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
Prospectus, the Final Supplemented Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Underwriters of copies of any
blue sky survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering contemplated by this
Agreement, if applicable, (viii) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Senior Notes, (ix) any fees payable in connection with the
rating of the Senior Notes, (x) the cost and charges of any transfer agent or
registrar, (xi) the premium payable to the Insurer in connection with the
issuance of the Insurance Policy, (xii) the fees and expenses incurred in
connection with the listing of the Senior Notes on the New York Stock Exchange
and (xiii) the cost of qualifying the Senior Notes with The Depository Trust
Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes, including fees and disbursements of their
counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the
Underwriters to purchase and pay for the Senior Notes are subject to the
following conditions:
- --------------------------------------------
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Florida Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or
orders heretofore entered, copies of which have heretofore been
delivered to the Representatives, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Underwriters and the Company unless within 24 hours after receiving a
copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an
unacceptable provision).
(c) On the Closing Date, the Representatives shall have received:
(1) The opinion, dated the Closing Date, of Beggs & Lane, a Registered Limited
Liability Partnership, general counsel for the Company, substantially in the
form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP, counsel for
the Company, substantially in the form attached hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine & Moore LLP, counsel
to the Trustee, substantially in the form attached hereto as Schedule III.
(4) The opinion, dated the Closing Date, of Dewey Ballantine LLP, counsel for
the Underwriters, substantially in the form attached hereto as Schedule IV.
(5) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V.
(6) At the Closing Date, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Final Supplemented Prospectus, any material adverse change in
the business, properties or financial condition of the Company, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or any Vice President of the Company,
and dated as of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to the knowledge of the Company,
threatened by the Commission.
(7) On the Closing Date, the Representatives shall have received from Deloitte &
Touche LLP a letter dated the Closing Date to the effect that: (A) they are
independent certified public accountants with respect to the Company within the
meaning of the 1933 Act and the rules and regulations under the 1933 Act; (B) in
their opinion, the financial statements audited by them and incorporated by
reference in the Final Supplemented Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1934 Act and the
rules and regulations under the 1934 Act; and (C) on the basis of certain
limited procedures performed through a specified date not more than five
business days prior to the date of such letter, namely (i) reading the minute
books of the Company; (ii) performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement on Auditing Standards No. 71, "Interim
Financial Information" or Statement on Auditing Standards No. 100, "Interim
Financial Information", as applicable, on the unaudited financial statements, if
any, of the Company incorporated in the Prospectus and on the latest available
unaudited financial statements of the Company, if any, for any calendar quarter
subsequent to the date of those incorporated by reference in the Prospectus; and
(iii) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such unaudited
financial statements or any specified unaudited amounts derived therefrom (it
being understood that the foregoing procedures do not constitute an audit
performed in accordance with generally accepted auditing standards and they
would not necessarily reveal matters of significance with respect to the
comments made in such letter, and accordingly that Deloitte & Touche LLP make no
representations as to the sufficiency of such procedures for the Underwriters'
purposes), nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed financial
statements, if any, incorporated by reference in the Prospectus, for them to be
in conformity with GAAP; (2) such unaudited condensed financial statements do
not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the unaudited amounts for
Operating Revenues, Earnings Before Income Taxes and Net Income After Dividends
on Preferred Stock and the unaudited Ratio of Earnings to Fixed Charges set
forth in the Prospectus do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period; (4) as of a
specified date not more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or long-term debt of
the Company or any decrease in net assets as compared with amounts shown in the
latest audited balance sheet incorporated by reference in the Prospectus, except
in each case for changes or decreases which (i) the Prospectus discloses have
occurred or may occur, (ii) are occasioned by the declaration of dividends,
(iii) are occasioned by draw-downs under existing pollution control financing
arrangements, (iv) are occasioned by draw-downs and regularly scheduled payments
of capitalized lease obligations, (v) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or optional redemption
provisions relating thereto, (vi) are occasioned by the reclassification of
current maturities of long-term debt, or (vii) are disclosed in such letter; and
(5) the unaudited amounts for Operating Revenues, Earnings Before Income Taxes
and Net Income After Dividends on Preferred Stock and the unaudited Ratio of
Earnings to Fixed Charges for any calendar quarter subsequent to those set forth
in (3) above, which, if available, shall be set forth in such letter, do not
agree with the amounts set forth in or derived from the unaudited financial
statements for the same period or were not determined on a basis substantially
consistent with that of the corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus.
(8) On the Closing Date, counsel for the Underwriters shall have been furnished
with such documents and opinions as it may reasonably require for the purpose of
enabling it to pass upon the issuance and sale of the Senior Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Senior Notes as herein contemplated
shall be satisfactory in form and substance to the Representatives and Dewey
Ballantine LLP, counsel for the Underwriters.
(9) On the Closing Date, the Senior Notes shall have been approved for listing
on the New York Stock Exchange upon notice of issuance.
(10) That no amendment or supplement to the Registration Statement, or the Final
Supplemented Prospectus filed subsequent to the date of this Agreement
(including any filing made by the Company pursuant to Section 13 or 14 of the
1934 Act) shall be unsatisfactory in form to Dewey Ballantine LLP or shall
contain information (other than with respect to an amendment or supplement
relating solely to the activity of the Underwriters) which, in the reasonable
judgment of the Representatives, shall materially impair the marketability of
the Senior Notes.
(11) The Company shall have performed its obligations when and as provided
under this Agreement.
(12) Evidence that the Insurance Policy has been issued by the Insurer and
confirmation that the Senior Notes have been rated at least "Aaa" by Moody's
Investors Service, Inc. and at least "AAA" by Standard & Poor's, a division of
The McGraw-Hill Companies.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company shall be subject to the conditions set forth in the
first sentence of Section 5(a) and in Section 5(b). In case such conditions
shall not have been fulfilled, this Agreement may be terminated by the Company
by mailing or delivering written notice thereof to the Representatives. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, 1934 Act or otherwise, and to reimburse any
such Underwriter and such controlling person or persons, if any, for
any legal or other expenses incurred by them in connection with
defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus
or the Final Supplemented Prospectus or, if the Company shall furnish
to the Underwriters any amendments or any supplements thereto, or shall
make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are based
upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue
statement or alleged untrue statement or omission or alleged omission
which was made in such Registration Statement, Preliminary Prospectus,
Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by, or
through the Representatives on behalf of, any Underwriter for use
therein and except that this indemnity with respect to the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus, if the
Company shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims,
damages, liabilities or actions arising from the sale of the Senior
Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus (exclusive of documents
incorporated therein by reference pursuant to Item 12 of Form S-3), as
the same may then be amended or supplemented, shall not have been sent
or given by or on behalf of such Underwriter to such person with or
prior to the written confirmation of the sale involved and the untrue
statement or alleged untrue statement or omission or alleged omission
was corrected in the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus as supplemented or amended at the time of
such confirmation. Each Underwriter agrees, within ten days after the
receipt by it of notice of the commencement of any action in respect of
which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section
7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such
action shall not release the Company from any liability which it may
have to such Underwriter or to such controlling person otherwise than
on account of the indemnity agreement contained in this Section 7. In
case any such action shall be brought against an Underwriter or any
such person controlling such Underwriter and such Underwriter shall
notify the Company of the commencement thereof as above provided, the
Company shall be entitled to participate in (and, to the extent that it
shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such
defense and select such counsel, any Underwriter or controlling person
shall have the right to employ its own counsel, but, in any such case,
the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such
counsel has been authorized in writing by the Company in connection
with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless
such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have
any liability or responsibility in respect of the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify and
hold harmless the Company, its directors and such of its officers who
have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20(a) of the 1934 Act to the same extent and upon the same
terms as the indemnity agreement of the Company set forth in Section
7(a) hereof, but only with respect to alleged untrue statements or
omissions made in the Registration Statement, the Preliminary
Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or supplemented, in reliance upon and in
conformity with information furnished in writing to the Company by, or
through the Representatives on behalf of, such Underwriter for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally
suspended or there shall have been a material disruption in settlement
of securities generally, (ii) minimum or maximum ranges for prices
shall have been generally established on the New York Stock Exchange by
the Commission or by the New York Stock Exchange, (iii) a general
banking moratorium shall have been declared by federal or New York
State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved,
any declaration of war by the United States Congress or any other
substantial national or international calamity, crisis or emergency
(including, without limitation, acts of terrorism) affecting the United
States, in any such case provided for in clauses (i) through (iv) with
the result that, in the reasonable judgment of the Representatives, the
marketability of the Senior Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representatives
pursuant to subsection (a) above or because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill any
of the conditions of this Agreement, or if for any reason the Company
shall be unable to perform its obligations under this Agreement, then
in any such case, the Company will reimburse the Underwriters for the
reasonable fees and disbursements of Dewey Ballantine LLP and for the
out of pocket expenses (in an amount not exceeding $10,000) reasonably
incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Senior Notes and, upon such reimbursement, the
Company shall be absolved from any further liability hereunder, except
as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER. If an Underwriter shall
fail on the Closing Date to purchase the Senior Notes that it is obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10%
of the Senior Notes, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportion that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
Senior Notes, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in
-------
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters at Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, attn: Bradford Hart or Wachovia Capital
Markets, LLC, One First Union Center, TW-8, 301 South College Street, Charlotte,
North Carolina 28288, attn: Jim Williams, and notices to the Company shall be
mailed to One Energy Place, Pensacola, Florida, 32520-0100, Attention: Corporate
Secretary, with a copy to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: David B. Brooks.
SECTION 12. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from any of the Underwriters shall be
deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
as Representatives of the Several Underwriters named in Schedule I hereto
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------------------
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC
By:
---------------------------------------
Name:
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series H
Senior Notes
Morgan Stanley & Co. Incorporated $27,000,000
Wachovia Capital Markets, LLC $27,000,000
SunTrust Capital Markets, Inc. $ 6,000,000
----------
TOTAL $60,000,000
===========
2
Schedule II-A
[Letterhead of BEGGS & LANE]
July __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One First Union Center, TW-8
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters named in Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series H 5.25% Senior Notes due July 15, 2033
Ladies and Gentlemen:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance and sale of $60,000,000
aggregate principal amount of its Series H 5.25% Senior Notes due July 15, 2033
(the "Notes") pursuant to a Senior Note Indenture dated as of January 1, 1998,
by and between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Eighth Supplemental Indenture dated as of July 22,
2003(collectively, the "Indenture"); and (ii) the purchase by the Underwriters
of the Notes pursuant to the terms of an Underwriting Agreement (the
"Underwriting Agreement") dated July 10, 2003, among the Company and the
Underwriters named in Schedule I thereof (the "Underwriters") for whom you are
acting as Representatives. This opinion is being delivered to you pursuant to
Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-104449, 333-104449-01 and
333-104449-02) pertaining to the Notes (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated April 25, 2003 as supplemented by a final prospectus supplement relating
to the Notes dated July 10, 2003 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 2002, the Quarterly Report on
Form 10-Q of the Company for the quarter ended March 31, 2003 and the Current
Reports on Form 8-K of the Company dated March 21, 2003, July __, 2003 and July
__, 2003 (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Georgia law and the federal law of the United States upon the opinion dated the
date hereof rendered to you by Troutman Sanders LLP and relying as to matters of
New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of July 10, 2003, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement therein of a material fact or omitted, as of its
date, or omits, on the date hereof, to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we express no opinion
or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the captions "Description of the Series H Senior Notes -- Book-Entry Only
Issuance -- The Depository Trust Company" and "The Policy and the Insurer" or in
Appendix A thereto.
We are members of the Florida Bar and we do not express any
opinion herein concerning any law other than the law of the States of Maine,
Florida and Mississippi and, to the extent set forth herein, the laws of the
States of Georgia and New York and the federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to Section 5(c) of
the Underwriting Agreement insofar as such opinions relates to matters of Maine,
Florida and Mississippi law.
Yours very truly,
BEGGS & LANE
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
July __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One First Union Center, TW-8
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series H 5.25% Senior Notes due July 15, 2033
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $60,000,000 aggregate principal
amount of its Series H 5.25% Senior Notes due July 15, 2033 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Eighth Supplemental Indenture dated as of July 22, 2003
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement (the "Underwriting
Agreement") dated July 10, 2003, among the Company and the Underwriters named in
Schedule I thereof (the "Underwriters") for whom you are acting as
Representatives. This opinion is being delivered to you pursuant to Section
5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-104449, 333-104449-01 and
333-104449-02) pertaining to the Notes (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated April 25, 2003 as supplemented by a final prospectus supplement dated July
10, 2003 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2002, the Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003 and the Current Reports on Form 8-K of the Company
dated March 21, 2003, July ___, 2003 and July __, 2003 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Maine, Florida and Mississippi law upon the opinion dated the date hereof
rendered to you by Beggs & Lane, a Registered Limited Liability Partnership
("Beggs & Lane"), and relying as to matters of New York law upon the opinion
dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of July 10, 2003, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement of a material fact or omitted, as of its date, or
omits, as of the date hereof, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that in each case we express no opinion or
belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the captions "Description of the Series H Senior Notes -- Book-Entry Only
Issuance -- The Depository Trust Company" and "The Policy and the Insurer" or in
Appendix A thereto.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Maine, Florida, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Beggs & Lane may rely on this opinion in
giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law and the federal law of
the United States and Dewey Ballantine LLP may rely on this opinion in giving
its opinion pursuant to Section 5(c) of the Underwriting Agreement insofar as
such opinion relates to matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore LLP]
July __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One First Union Center, TW-8
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters named on Schedule I to the
Underwriting Agreement.
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32520
XL Capital Assurance Inc.
1221 Avenue of the Americas, 31st Floor
New York, NY 10020-1001
Gulf Power Company
Series H 5.25% Senior Notes
due July 15, 2033
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Gulf Power Company (the "Company") and the
Bank, as Trustee, and (b) the Eighth Supplemental Indenture dated as of July 22,
2003 (together with the Original Indenture, herein called the "Indenture"),
between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the laws of
the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture, and, insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance by
the Bank of the Indenture do not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
(iv) no approval, authorization or other action
by, or filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of the Bank
is required in connection with the execution and delivery by the Bank of the
Indenture or the performance by the Bank of its duties thereunder, except
such as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE LLP
3
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
July __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Wachovia Capital Markets, LLC
One First Union Center, TW-8
301 South College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series H 5.25% Senior Notes
due July 15, 2033
Ladies and Gentlemen:
We have represented the Underwriters (as hereinafter defined)
in connection with (i) the issuance by Gulf Power Company (the "Company") of
$60,000,000 of its Series H 5.25% Senior Notes due July 15, 2033 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Eighth Supplemental Indenture dated as of July 22, 2003
(collectively, the "Indenture"); and (ii) the purchase by the Underwriters of
the Notes pursuant to the terms of an Underwriting Agreement (the "Underwriting
Agreement") dated July 10, 2003, among the Company and the underwriters named in
Schedule I thereof (the "Underwriters") for whom you are acting as
Representatives. This opinion is being delivered to you pursuant to Section
5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-104449, 333-104449-01 and
333-104449-02) pertaining to the Notes (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated April 25, 2003 as supplemented by a final prospectus supplement dated July
10, 2003 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2002, the Quarterly Report on Form 10-Q for the
quarter ended March 31, 2003 and the Current Reports on Form 8-K of the Company
dated March 21, 2003, July ___, 2003 and July __, 2003 (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificate representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Maine, Florida and Mississippi upon the opinion of Beggs &
Lane, a Registered Limited Liability Partnership ("Beggs & Lane"), dated the
date hereof and addressed to you and as to all matters covered hereby which are
governed by or dependent upon the law of the State of Georgia upon the opinion
of Troutman Sanders LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation under the
laws of the States of Florida, Georgia and Mississippi, and has due corporate
authority to carry on the public utility business in which it is engaged, to own
and operate the properties used by it in such business and to enter into and
perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Florida Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of July 10, 2003, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contained, as of its date, or contains,
on the date hereof, any untrue statement of a material fact or omitted, as of
its date, or omits, on the date hereof, to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case we express no
opinion or belief with respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the Registration
Statement, the Final Supplemented Prospectus or the Exchange Act Documents and
with respect to information set forth in the Final Supplemented Prospectus under
the captions "Description of the Series H Senior Notes --Book-Entry Only
Issuance --The Depository Trust Company" and "The Policy and the Insurer" or in
Appendix A thereto.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Maine, Florida, Georgia and Mississippi.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP may rely on this
opinion in giving their opinions pursuant to Section 5(c) of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Troutman Sanders LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
Schedule V
Letterhead of XL CAPITAL ASSURANCE INC.
July __, 2003
To Each of the Addressees Listed
on the Attached Schedule A
GULF POWER COMPANY
Series H 5.25% Senior Notes
due July 15, 2033
Ladies and Gentlemen:
I am [Associate] General Counsel of XL Capital Assurance Inc.,
a New York stock insurance corporation (the "Corporation"), and have acted as
counsel to the Corporation in connection with the issuance of Financial Guaranty
Insurance Policy No. [ ] (the "Policy") relating to the above-captioned notes
(the "Notes").
In so acting, I have examined a copy of (a) the Policy, (b)
the Insurance and Indemnity Agreement, dated as of [ ] (the "Insurance
Agreement"), among [ ], (c) the Indemnification Agreement, dated as of [ ] (the
"Indemnification Agreement"), among [ ], (d) information under the heading "The
Policy and the Insurer" contained in the Prospectus of Gulf Power Company dated
April 25, 2003, as supplemented by a Prospectus Supplement dated July 10, 2003
relating to the Notes (the "Final Supplemented Prospectus") and (e) such other
relevant documents as I have deemed necessary.
Based upon the foregoing, I am of the following opinion:
1. The Corporation is a stock insurance corporation, duly
incorporated and validly existing under the laws of the State
of New York and is licensed and authorized to issue the Policy
and to perform its obligations under the Policy under the laws
of the State of New York.
2. The Policy, the Insurance Agreement and the Indemnification Agreement
(collectively, the "Insurance Documents") have been duly executed, and
the Policy, and assuming due authorization, execution and delivery of
the Insurance Agreement and the Indemnification Agreement by the
parties thereto (other than the Corporation), the Insurance Agreement
and the Indemnification Agreement are valid and binding obligations of
the Corporation enforceable in accordance with their terms except that
the enforcement of the Insurance Documents may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights
generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law)
and the enforceability of rights to indemnification under the
Insurance Agreement and the Indemnification Agreement may be subject
to limitations of public policy under applicable securities laws.
3. The execution, delivery and performance by the Corporation of its
obligations under the Insurance Documents do not contravene any
provision of the charter or by-laws of the Corporation. The execution,
delivery and performance by the Corporation of its obligations under
the Insurance Documents do not, to the extent that either of the
following would affect the validity or enforceability of any of the
Insurance Documents, (a) contravene any law or government regulation
or order presently binding on the Corporation or (b) contravene any
provision of or constitute a default under any indenture, contract or
other instrument to which the Corporation is a party or by which the
Corporation is bound.
4. The Policy is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act").
5. The information in the Final Supplemented Prospectus under the heading
"The Policy and the Insurer" is limited and does not purport to
provide the scope of disclosure required to be included in a
prospectus with respect to a registrant under the Act in connection
with a public offering and sale of securities of such registrant.
Within such limited scope of disclosure, however, there has not come
to my attention any information that would cause me to believe that
the description of the Corporation referred to above, as of the date
of the Final Supplemented Prospectus and as of the date hereof,
contained or contains any untrue statement of a material fact or
omitted, as of its date, or omits, on the date hereof, to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading
(except that no opinion is rendered with respect to any financial
statements or other financial information contained or referred to
therein).
I am qualified to practice law in the State of New York and do
not purport to be an expert on, or to express any opinion concerning, any law
other than the laws of the State of New York and the federal laws of the United
States of America.
This opinion is being delivered to you in connection with the
issuance of the Policy and the execution of the other Insurance Documents and
may not be relied upon for any other purposes or by any other person without my
express written consent.
Very truly yours,
[Fred Hnat]
[Susan Comparato]
[Mary Jane Constant]
[Associate] General Counsel
Schedule A