Exhibit 1
$40,000,000 Series I 5.75% Senior Notes
due September 15, 2033
GULF POWER COMPANY
UNDERWRITING AGREEMENT
September 5, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As Representative 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 representative (in such capacity you shall
hereinafter be referred to as the "Representative"), with respect to the sale by
the Company and the purchase by the Underwriters, acting severally and not
jointly, of $40,000,000 aggregate principal amount of the Series I 5.75% Senior
Notes due September 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 ninth supplemental indenture, dated
as of September 16, 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
Representative expressly for use in the Final Supplemented Prospectus; or
(B) any information set forth in the prospectus supplement portion of the
Final Supplemented Prospectus under the captions "Description of the Series
I Senior Notes-- Book-Entry Only Issuance-- The Depository Trust Company,"
"The Policy and the Insurer" and "Experts" 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
Representative expressly for use therein; or (C) any information set forth
in the prospectus supplement portion of the Final Supplemented Prospectus
under the captions "Description of the Series I Senior Notes-- Book-Entry
Only Issuance-- The Depository Trust Company," "The Policy and the Insurer"
and "Experts" 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.
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(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 Troutman Sanders LLP, Bank of America Plaza,
600 Peachtree Street, N.E., Atlanta, Georgia at 10:00 A.M., Atlanta
time, on September 16, 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 Representative 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
Representative. It is understood that each Underwriter has authorized
the Representative, 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
Representative, individually and not as representative 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 Representative 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 Representative 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 Representative
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 Representative 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 Representative 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
Representative 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 Representative's prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Senior Notes or any security convertible into or
exchangeable into or exercisable for the Senior Notes or any debt
securities substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement). The Representative agrees 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 Representative, 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 Representative 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 Representative 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 Representative 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 Representative 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 Representative, 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 Representative 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 Representative. 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 Representative 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 Representative 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 Representative 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 Representative, the
marketability of the Senior Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representative
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 Representative
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 Representative 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 Representative 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 Representative at Morgan Stanley & Co.
Incorporated, 1585 Broadway, New York, New York 10036, attn: Bradford Hart, 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 Representative of the Several Underwriters named in Schedule I hereto
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------------------
Name:
Title:
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series I
Senior Notes
Morgan Stanley & Co. Incorporated $30,000,000
SunTrust Capital Markets, Inc. $10,000,000
-----------
TOTAL $40,000,000
===========
Schedule II-A
[Letterhead of BEGGS & LANE]
September __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As Representative of the Underwriters named in Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series I 5.75% Senior Notes due September 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 $40,000,000
aggregate principal amount of its Series I 5.75% Senior Notes due September 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 Ninth Supplemental Indenture dated as of
September 16, 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 September 5, 2003, among the Company and
the Underwriters named in Schedule I thereof (the "Underwriters") for whom you
are acting as Representative. 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 September 5, 2003 (the "Final Supplemented Prospectus"),
which pursuant to Form S-3 incorporates by reference the Annual Report on Form
10-K of the Company for the fiscal year ended December 31, 2002, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended March 31, 2003 and
June 30, 2003 and the Current Reports on Form 8-K of the Company dated March 21,
2003, July 10, 2003 and September __, 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 September 5, 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 I 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]
September __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As Representative of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series I 5.75% Senior Notes due September 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 $40,000,000 aggregate principal
amount of its Series I 5.75% Senior Notes due September 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 Ninth Supplemental Indenture dated as of September 16, 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 September 5, 2003, among the Company and the Underwriters
named in Schedule I thereof (the "Underwriters") for whom you are acting as
Representative. 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
September 5, 2003 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2002, the Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2003 and June 30, 2003 and the Current Reports on
Form 8-K of the Company dated March 21, 2003, July 10, 2003 and September ___,
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 September 5, 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 I 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]
September __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As Representative 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 I 5.75% Senior Notes
due September 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 Ninth Supplemental Indenture dated as of September
16, 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
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
September __, 2003
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
As Representative of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series I 5.75% Senior Notes
due September 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
$40,000,000 of its Series I 5.75% Senior Notes due September 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 Ninth Supplemental Indenture dated as of September
16, 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 September 5, 2003, among the Company and
the underwriters named in Schedule I thereof (the "Underwriters") for whom you
are acting as Representative. 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
September 5, 2003 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2002, the Quarterly Reports on Form 10-Q for
the quarters ended March 31, 2003 and June 30, 2003 and the Current Reports on
Form 8-K of the Company dated March 21, 2003, July 10, 2003 and September __,
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 September 5, 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 I 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.
September __, 2003
To Each of the Addressees Listed
on the Attached Schedule A
GULF POWER COMPANY
Series I 5.75% Senior Notes
due September 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 September ___,
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
Gulf Power Company
Pensacola, Florida
Morgan Stanley & Co. Incorporated
as Representative of the Underwriters
New York, New York
JPMorgan Chase Bank
New York, New York