Exhibit 1
$35,000,000 Series J 5.875% Senior Notes
due April 1, 2044
GULF POWER COMPANY
UNDERWRITING AGREEMENT
April 6, 2004
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, North Carolina 28255
As Representative of the Several 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 each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof) for whom you are acting as 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 $35,000,000 aggregate principal amount of the Series J
5.875% Senior Notes due April 1, 2044 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Representative deems
advisable after this Agreement has been executed and delivered. 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 tenth supplemental indenture, dated
as of April 13, 2004, 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 caption "Description of the Series
J Senior Notes-- Book-Entry Only Issuance-- The Depository Trust Company."
(c) The Registration Statement, the Prospectus and the Final Supplemented
Prospectus comply, and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects with
the applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act
(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 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 caption "Description of the Series J Senior Notes-- Book-Entry
Only Issuance-- The Depository Trust Company."
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the laws
of the State of 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) 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.
(l) 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, 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
April 13, 2004 (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 fees and expenses incurred in connection with the listing of
the Senior Notes on the New York Stock Exchange and (xii) 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.
(d) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition of the
Company, whether or not arising in the ordinary course of business, and the
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
such Officer, threatened by the Commission.
(e) 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 by reference in the Final Supplemented Prospectus and
of 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 Final Supplemented 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 Final Supplemented 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 Final Supplemented Prospectus do not agree with the amounts
set forth in or derived from the unaudited financial statements for the
same period included or incorporated by reference in the Registration
Statement; (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 Final Supplemented Prospectus, except in
each case for changes or decreases which (i) the Final Supplemented
Prospectus discloses have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs under existing
pollution control financing arrangements, (iv) are occasioned by draw-downs
and regularly scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to satisfy
mandatory or optional redemption provisions relating thereto, (vi) are
occasioned by the reclassification of current maturities of long-term debt,
or (vii) are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Income Taxes and Net Income 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 Final Supplemented
Prospectus.
(f) 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.
(g) On the Closing Date, the Senior Notes shall have been approved for
listing on the New York Stock Exchange upon notice of issuance.
(h) 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.
(i) The Company shall have performed its obligations when and as provided
under this Agreement.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
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 by reference therein, 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 any Underwriter through the
Representative 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 any Underwriter through the Representative 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 c/o Banc of America
Securities LLC, 9 West 57th Street, NY1-307-2M-01, New York, New York 10019,
Attention: Transaction Management, 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: /s/Ronnie Labrato
Name: Ronnie Labrato
Title: Vice President, Chief
Financial Officer and
Comptroller
CONFIRMED AND ACCEPTED,
as of the date first above written
BANC OF AMERICA SECURITIES LLC
By: /s/Peter Carbone
Name: Peter Carbone
Title: Vice President
As Representative of the other Underwriters
named in Schedule I hereto
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series J
Senior Notes
Banc of America Securities LLC $17,500,000
Incapital LLC $12,250,000
SunTrust Capital Markets, Inc. $5,250,000
----------
TOTAL $35,000,000
===========
Schedule II-A
[Letterhead of BEGGS & LANE]
April __, 2004
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, North Carolina 28255
As Representative of the Underwriters named in Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series J ___% Senior Notes due April __, 2044
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 $35,000,000
aggregate principal amount of its Series J ___% Senior Notes due April __, 2044
(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 Tenth Supplemental Indenture dated as of April __,
2004 (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 April __, 2004, 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 April __, 2004 (the "Final Supplemented Prospectus"), which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 2003 (the "Form 10-K") and
the Current Report on Form 8-K of the Company dated April __, 2004 (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 April __, 2004, 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 the date of filing of the Form
10-K (including the Form 10-K), 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 J
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company."
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]
April __, 2004
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, North Carolina 28255
As Representative of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series J ___% Senior Notes due April __, 2044
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance and sale of $35,000,000 aggregate
principal amount of its Series J ___% Senior Notes due April __, 2044 (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 Tenth Supplemental Indenture dated as of April __,
2004 (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 April __, 2004, 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
April __, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2003 (the "Form 10-K") and the Current Report on
Form 8-K of the Company dated April __, 2004 (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 April __, 2004, 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 the date of filing of the Form
10-K (including the Form 10-K), 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 J
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of 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]
April __, 2004
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, North Carolina 28255
As Representative of the Underwriters named on Schedule I to the
Underwriting Agreement.
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32520
Gulf Power Company
Series J ___% Senior Notes
due April __, 2044
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 Tenth Supplemental Indenture dated as of April __,
2004 (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]
April __, 2004
Banc of America Securities LLC
100 N. Tryon Street
Charlotte, North Carolina 28255
As Representative of the Underwriters named on Schedule I to the
Underwriting Agreement.
GULF POWER COMPANY
Series J ___% Senior Notes
due April __, 2044
Ladies and Gentlemen:
We have represented the Underwriters (as hereinafter defined)
in connection with (i) the issuance by Gulf Power Company (the "Company") of
$35,000,000 of its Series J ___% Senior Notes due April __, 2044 (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 Tenth Supplemental Indenture dated as of April __, 2004
(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 April __, 2004, 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
April __, 2004 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2003 (the "Form 10-K") and the Current Report on
Form 8-K of the Company dated April __, 2004 (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 April __, 2004, 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 the date of filing
of the Form 10-K (including the Form 10-K), 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 J
Senior Notes --Book-Entry Only Issuance --The Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the 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