Exhibit 1
FIRST UNION CAPITAL MARKETS CORP.
_________________________________
Name of Bidder
FORM OF PROPOSAL
For Purchase of
GULF POWER COMPANY
FIRST MORTGAGE BONDS
Dated: 1/17/96
GULF POWER COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Dear Ladies and Gentlemen:
Referring to the terms and conditions dated January 9, 1996 (the "Terms
and Conditions"), relating to proposals for the purchase of First Mortgage
Bonds (the "Bonds") of Gulf Power Company (the "Company"), and the notice
dated the date hereof (the "Notice") given by the Company pursuant thereto,
the persons, firms and corporations named in Exhibit A attached hereto (the
"Bidders") have submitted and confirm herewith the following proposal for the
purchase of $30,000,000 principal amount of the Bonds, as designated by the
Company in the Notice (the "Designated Principal Amount"):
1. The interest rate of the Bonds shall be 6 7/8% per annum. The
interest rate must be an integral multiple of .01% or 1/8 of 1%.
2. The price to be paid to the Company for the Bonds shall be
98.768422% of the Designated Principal Amount thereof, plus accrued
interest from the first day of the calendar month during which the Bonds
are issued to the date of payment and delivery, each of the Bidders
hereby offering, severally and not jointly, to purchase from the
Company, at said price and upon the terms and conditions set forth in
the form of purchase contract attached hereto as Exhibit B (the
"Purchase Contract"), the principal amount of Bonds set forth opposite
its name in Exhibit A attached hereto, or the principal amount of Bonds
to be set forth opposite its name in Exhibit A attached hereto as
provided in Section 3 of the Terms and Conditions, which together
aggregate the Designated Principal Amount of the Bonds. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
3. In consideration of the agreement of the Company set forth in
the Terms and Conditions that, subject to the provisions thereof, the
Company will accept the proposal which results in the lowest "annual
cost of money" to it for the Bonds, each of the Bidders agrees (a) that
the offer of such Bidder included in this proposal shall be irrevocable
until three hours after the time fixed for the submission of proposals,
unless sooner rejected by the Company; (b) that, if this proposal shall
be accepted in writing by the Company, such Bidder, either in person or
by the Representative(s) on its behalf, will forthwith furnish to the
Company in writing the information referred to in Section 8 of the Terms
and Conditions; and (c) that, if this proposal shall be so accepted by
the Company, the Purchase Contract shall thereupon become effective
without any separate execution thereof and shall constitute the
agreement between the Company and the Bidders and, upon performance by
the Bidders, and the Representative(s), of their obligations under
Sections 3, 4 and 8 of the Terms and Conditions, all rights of the
Company and of the Bidders shall be determined solely in accordance with
the terms thereof, subject, however, to such modifications therein
(including Exhibit A to the Form of Proposal) as may be necessary and as
are contemplated by the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company in
its entirety within three hours after the time fixed for the submission
thereof.
5. This proposal may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in
respect of the Bonds furnished by the Company to the Bidders pursuant to the
last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
T. RICHARD KENDRICK IV
MANAGING DIRECTOR
On behalf of and as
Representative(s)
of the persons, firms and
corporations
named in Exhibit A hereto.
FIRST UNION CAPITAL MARKETS CORP.
Address
ONE FIRST UNION PLAZA
DC-8
CHARLOTTE, NC 28288-0600
Accepted:
GULF POWER COMPANY
By: WAYNE BOSTON
Title: Assistant Secretary
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EXHIBIT A
The names of the Bidders and the respective principal amounts of the
Bonds which they severally offer to purchase are as follows:
Name Principal Amount
FIRST UNION CAPITAL MARKETS CORP. 30,000,000
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EXHIBIT B
GULF POWER COMPANY
PURCHASE CONTRACT
For Purchase of First Mortgage Bonds of the Company
AGREEMENT made between Gulf Power Company, a corporation organized and
existing under the laws of the State of Maine ("Company"), party of the first
part, and the several persons, firms and corporations (the "Purchasers") named
as Bidders in Exhibit A to the Form of Proposal to which this agreement is
attached as Exhibit B (the "Form of Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated Principal
Amount (as defined in the Form of Proposal) of its First Mortgage Bonds (the
"Bonds"), to be issued under and secured by the Indenture dated as of
September 1, 1941, as supplemented and as to be supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank (National
Association), as Trustee (the "Trustee"), and to bear interest at the rate per
annum specified in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing
the Form of Proposal (the "Representative") to execute the Form of Proposal on
behalf of the respective Purchasers and to act for the respective Purchasers
in the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement and prospectus relating to the Bonds, and such registration
statement has become effective (such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference in the prospectus at such time pursuant to Item 12 of Form S-3,
being herein called the "Registration Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form of
Proposal (such prospectus, including all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of
the Form of Proposal, being herein called the "Bidding Prospectus") is to be
supplemented by a prospectus supplement (the "Prospectus Supplement"),
including certain information relating to the Purchasers, the price and the
terms of offering, the interest rate, maturity date and redemption provisions
of the Bonds (the Bidding Prospectus as supplemented by the Prospectus
Supplement being herein called the "Prospectus").
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set
forth, the Company agrees to sell to the respective Purchasers, severally and
not jointly, and the respective Purchasers, severally and not jointly, agree
to purchase from the Company, at the price specified in paragraph 2 of the
Form of Proposal, plus accrued interest from the first day of the calendar
month during which the Bonds are issued to the date of payment and delivery,
the respective principal amounts of Bonds set opposite their names in Exhibit
A to the Form of Proposal, which together aggregate the Designated Principal
Amount of the Bonds.
2. Payment and Delivery: Payment for the Bonds shall be made to the
Company or its order in federal funds or in other funds which are, as shown by
written evidence satisfactory to the Company, immediately available at the
time of purchase, at the office of Dewey Ballantine, 1301 Avenue of the
Americas, New York, New York (or at such other place as may be agreed upon by
the Representative and the Company), upon the delivery of the Bonds to the
Representative for the respective accounts of the Purchasers against receipt
therefor signed by the Representative on behalf of itself and as agent for the
other Purchasers. Such payment and delivery shall be made at 10 a.m. New York
Time on the eighth day (which shall be a full business day) after this
agreement becomes effective (or at such other time or on such other day as may
be agreed upon by the Representative and the Company), unless postponed in
accordance with the provisions of Section 7 hereof. The time at which payment
and delivery are to be made is herein sometimes called the "time of purchase".
Delivery of definitive Bonds is expected to be made in registered form
without coupons in denominations of $1,000 and multiples thereof, registered
in such name or names as the Representative may request not later than 10 a.m.
New York Time on the third business day prior to the time of purchase, or, if
no such request is received, in the names of the respective Purchasers in
denominations selected by the Company. If the Representative shall request
that any of the Bonds be registered in a name or names other than that of the
Purchaser agreeing to purchase such Bonds, such Purchaser shall pay any
transfer taxes resulting from such request. The Company agrees to make the
Bonds available for inspection by the Representative at the office of the
Trustee at least 20 hours prior to the time of purchase. In the event that it
becomes necessary to make initial delivery of the Bonds in temporary form,
such Bonds will be exchangeable at said office of the Trustee, upon request,
for definitive fully registered Bonds of authorized denominations without
charge to the holders thereof as soon as is reasonably practicable.
3. Conditions of Purchasers' Obligations: The several obligations of
the Purchasers hereunder are subject to the accuracy of the warranties and
representations on the part of the Company herein contained and to the
following other conditions:
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(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Bonds and the legal opinions
provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory in
form and substance to Dewey Ballantine, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative with
the approval of Dewey Ballantine:
(1) Opinion of Beggs & Lane, of Pensacola, Florida,
general counsel for the Company, substantially in the form
attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta, Georgia,
counsel to the Company, substantially in the form attached hereto
as Exhibit 2.
(3) Opinion of Dewey Ballantine, of New York, New York,
substantially in the form attached hereto as Exhibit 3.
(4) Letter dated the date of payment and delivery from
Arthur Andersen LLP to the effect that: (A) they are independent
public accountants with respect to the Company within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder; (B) in their opinion, the financial
statements and schedules audited by them and incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the related published rules and
regulations; (C) they have performed certain limited procedures
through a specified date not more than five business days prior to
the date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial statements, if
any, of the Company incorporated in the Prospectus and agreeing
the amounts therein with the Company's accounting records; (iii)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited financial statements, if any, incorporated
in the Prospectus (a) are in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements incorporated in the
Prospectus and (b) comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations; (iv) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
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unaudited Ratio of Earnings to Fixed Charges set forth in the
Prospectus, which amounts shall include such amounts for the
latest period subsequent to that covered by the financial
statements incorporated by reference in the Prospectus for which
such amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements from
which the amounts and ratios described in (iv) were derived and
agreeing the amounts therein to the Company's accounting records;
(vi) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether (a) the unaudited amounts and ratios referred to in (iv)
above and the unaudited financial statements referred to in (v)
above are stated on a basis substantially consistent with that of
the corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus and (b) as of a
specified date not more than five business days prior to the date
of delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any decrease in
net assets as compared with amounts shown in the latest audited
balance sheet incorporated in the Prospectus, except in each case
for changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the declaration of
dividends, (III) are occasioned by draw-downs under existing
pollution control financing arrangements, (IV) are occasioned by
draw-downs and regularly scheduled payments of capitalized lease
obligations, (V) are occasioned by the purchase or redemption of
bonds or stock to satisfy mandatory or optional redemption
provisions relating thereto, or (VI) are disclosed in such letter;
(vii) reading the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed
Charges for any period subsequent to those set forth in (iv)
above, which if available shall be set forth in such letter;
(viii) reading the unaudited financial statements from which the
amounts and ratios described in (vii) above were derived and which
will be attached to such letter and agreeing the amounts therein
to the Company's accounting records; and (ix) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
amounts and ratios referred to in (vii) above and the unaudited
financial statements referred to in (viii) above are stated on a
basis substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by reference in
the Prospectus; and (D) reporting their findings as a result of
performing the limited procedures set forth in (C) above. It is
understood that the foregoing procedures do not constitute an
audit performed in 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
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accordingly that Arthur Andersen LLP make no representations as to
the sufficiency of such procedures for the several Purchasers'
purposes.
(c) That no amendment or supplement (including the Prospectus
Supplement) to the registration statement or prospectus filed subsequent
to the time this agreement becomes effective (including any filing made
by the Company pursuant to Section 13 or 14 of the Exchange Act) shall
be unsatisfactory in form to Dewey Ballantine or shall contain
information (other than with respect to an amendment or supplement
relating solely to the activity of any Purchaser or Purchasers) which,
in the reasonable judgment of the Representative, shall materially
impair the marketability of the Bonds.
(d) That, at or before 8 p.m. New York Time on the first business
day after the date this agreement becomes effective, or at such later
time and date as the Representative may from time to time consent to in
writing or by telephone, confirmed in writing, an appropriate order or
orders of the Florida Public Service Commission and of the Commission
under the Public Utility Holding Company Act of 1935, as amended,
necessary to permit the issue and sale of the Bonds shall be in effect;
and that, prior to the time of purchase, no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Securities Act by the Commission or proceedings therefor
initiated or threatened.
(e) That, prior to the time of purchase, there shall have been no
material adverse change in the business, properties or financial
condition of the Company from that set forth in or contemplated by the
Prospectus, and that the Company shall, at the time of purchase, have
delivered to the Representative a certificate to such effect of an
executive officer of the Company. For the purpose of this condition,
the sale by the Company of, or its failure to sell, any issue of other
securities shall not be deemed to be such a change.
(f) That the Company shall have performed such of its obligations
under this agreement as are to be performed at or prior to the time of
purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Purchasers herein contained, the Company covenants as
follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule 424 under
the Securities Act, to file the Prospectus Supplement with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
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(b) As soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by
the Commission for amendments to the Registration Statement or
Prospectus, including any amendment to any of the documents incorporated
therein by reference pursuant to Item 12 of Form S-3, or of the issuance
of a stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceedings for that
purpose and, if such a stop order should be issued by the Commission, to
make every reasonable effort to obtain the lifting or removal thereof as
soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as
practicable on or after the date this agreement becomes effective, and
from time to time thereafter during such period of time (not exceeding
nine months) after this agreement becomes effective as the Purchasers
are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made
any supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required by law to
deliver a prospectus after the expiration of nine months after the date
this agreement becomes effective, to furnish to such Purchaser, upon
request of the Representative, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement
becomes effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such Representative
consists of two or more persons to one of such persons, one copy,
certified by an officer of the Company, of the registration statement as
initially filed with the Commission, all amendments thereto and all
documents incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 as of the time of purchase (in each case, exclusive of
exhibits), and to furnish to the Representative sufficient plain copies
of said registration statement and all amendments thereto (exclusive of
exhibits) for distribution of two each, and all said documents
incorporated therein as of the time of purchase (exclusive of exhibits)
for distribution of one each, to the other Purchasers.
(f) In the event that the Purchasers constitute "underwriters"
within the meaning of Section 2(11) of the Securities Act, then, for
such period of time (not exceeding nine months) after the date this
agreement becomes effective as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus is
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delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing, at its
own expense, to the Purchasers and to dealers (whose names and addresses
are furnished to the Company by the Representative) to whom Bonds may
have been sold by the Representative on behalf of the Purchasers and,
upon request, to any other dealers making such request, either
amendments to the Prospectus or supplements thereto, or (ii) making an
appropriate filing pursuant to Section 13 or 14 of the Exchange Act
which would supplement or amend the Prospectus, so that the statements
in the Prospectus as so amended or supplemented will not, in the light
of the circumstances when the Prospectus is delivered to a purchaser, be
misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need not be
audited) covering a period of at least twelve months beginning with the
first day of the month immediately following the effective date of the
Registration Statement as defined in Rule 158(c) under the Securities
Act, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(h) To use its best efforts to qualify the Bonds for offer and
sale under the securities or blue sky laws of such jurisdictions as the
Representative may designate within six months after the date this
agreement becomes effective and to pay filing fees and disbursements in
connection therewith in an amount not exceeding $3,500 in the aggregate
(including filing fees and disbursements paid or incurred prior to the
date this agreement becomes effective), provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
file a consent to service of process or to file annual reports or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(i) To pay expenses, fees and taxes (other than transfer taxes)
in connection with (1) the preparation and filing of the Registration
Statement and Prospectus, (2) the preparation, execution, filing and
recording of the new supplemental indenture pursuant to which the Bonds
are to be issued, (3) the issue and delivery of the Bonds to the
Purchasers, and (4) the furnishing of the opinions, letter and
certificate referred to in Section 3 hereof, except that the Company
shall be required to pay the fees and disbursements (other than filing
fees and disbursements referred to in paragraph (h) of this Section 4)
of Dewey Ballantine only in an event provided in paragraph (j) of this
Section 4, the Purchasers hereby agreeing to pay such fees and
disbursements in any other event and, if such fees should be less than
the amount stated by such counsel to the Representative, to repay the
Company the amount of any reduction.
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(j) If the Purchasers shall not take up and pay for the Bonds due
to the failure of the Company to comply with any of the conditions
specified in Section 3 hereof, or if this agreement shall be terminated
in accordance with the provisions of Section 7 or 8 hereof, to pay the
reasonable fees and disbursements of Dewey Ballantine, and, if the
Purchasers shall not take up and pay for the Bonds due to the failure of
the Company to comply with any of the conditions specified in Section 3
hereof, to reimburse the Purchasers for their reasonable out-of-pocket
expenses, in an amount not exceeding a total of $10,000, incurred in
connection with the financing contemplated by this agreement.
(k) On and after the date this agreement becomes effective and
through the time of purchase, without the prior written consent of the
Representative, not to issue or sell any first mortgage bonds (other
than the Bonds) or any other long-term debt of the Company having terms
and provisions substantially similar to the Bonds.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the Purchasers
that:
(i) The Registration Statement, when it became effective,
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading and the Bidding
Prospectus, on said date, did not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; when the Prospectus
Supplement is filed with the Commission, and at the time of
purchase, the Registration Statement and the Prospectus, as they
may be amended or supplemented, will comply, or be deemed to
comply, in all material respects with the provisions of the
Securities Act and the rules and regulations of the Commission
thereunder, the Registration Statement, as it may be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 as of such
dates complied or will comply in all material respects with the
applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder, and, on said dates, when
read together with the Prospectus, or the Prospectus as it may be
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otherwise amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to any
Purchaser with respect to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representative on behalf
of, any Purchaser for use in the Registration Statement or the
Prospectus, or to any statements in or omissions from that part of
the Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act of 1939, as amended, of
the Trustee under the Indenture.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms of
this agreement will not violate any of the terms, conditions or
provisions of, or constitute a default under, any indenture or
other contract or agreement to which the Company is now a party or
the articles of incorporation or by-laws of the Company or any
order of any court or administrative agency entered in any
proceedings to which the Company is now a party.
(b) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any such Purchaser
within the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
otherwise, and to reimburse the Purchasers and such controlling person
or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a preliminary prospectus (if used prior to the effective
date of the Registration Statement), or in the Bidding Prospectus (if
used prior to the date this agreement becomes effective), or in the
Registration Statement, or in the Prospectus or, if the Company shall
furnish to the Purchasers any amendments or any supplements to the
Prospectus, or shall make any filings pursuant to Section 13 or 14 of
the Exchange Act which are incorporated therein by reference, in the
Prospectus as so amended or supplemented (provided that, if such
Prospectus or such Prospectus as amended or supplemented is used after
the expiration of the period of time specified in Section 4(f) hereof,
it shall contain such amendments or supplements as the Company deems
necessary to comply with Section 10(a)(3) of the Securities Act), or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or are
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based upon any such untrue statement or omission or alleged untrue
statement or omission which was made in such Registration Statement or
Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by, or through the Representative on behalf
of, any Purchaser for use therein and except that this indemnity with
respect to a preliminary prospectus and the Bidding Prospectus, and with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the
sale of Bonds to any person if a copy of the Prospectus (exclusive of
documents incorporated therein by reference pursuant to Item 12 of Form
S-3), as the same may then be amended or supplemented, shall not have
been sent or given by or on behalf of such Purchaser to such person with
or prior to the written confirmation of the sale involved. Each
Purchaser agrees, within ten days after the receipt by it of notice of
the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on
account of its agreement contained in this Section 5(b), to notify the
Company in writing of the commencement thereof, but the omission of such
Purchaser so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Purchaser or to
such controlling person otherwise than on account of the indemnity
agreement contained in this Section 5(b). In case any such action shall
be brought against any Purchaser or any such person controlling such
Purchaser and such Purchaser shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled
to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof at its own expense.
In case the Company elects to direct such defense and select such
counsel, any Purchaser or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Purchaser or controlling
person unless the employment of such counsel has been authorized in
writing by the Company in connection with defending such action.
The Company's indemnity agreement contained in this Section 5(b),
and its covenants, warranties and representations contained in this
agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Bonds
hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and to each other Purchaser that the information furnished in
writing to the Company by, or through the Representative on behalf of,
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such Purchaser for use in the Registration Statement or the Prospectus
does not contain an untrue statement of a material fact and does not
omit to state a material fact in connection with such information
required to be stated therein or necessary to make such information not
misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and such of its officers as shall have signed the
Registration Statement, and each other Purchaser and each person, if
any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and upon
the same terms as the indemnity agreement of the Company set forth in
Section 5(b) hereof, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative on
behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser contained in
this Section 6(b), and the warranties and representations of such
Purchaser contained in this agreement, shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Company or other Purchaser or controlling person, and shall survive the
delivery of and payment for the Bonds hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to
purchase or otherwise) to purchase the principal amount of the Bonds which it
has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase
or agree to purchase such principal amount of the Bonds on the terms herein
set forth; and, if the Representative shall fail to procure a satisfactory
party or parties to purchase or agree to purchase such principal amount of the
Bonds on such terms within such period after the receipt of such notice, then
the Company shall be entitled to an additional period of 24 hours within which
to procure another party or parties to purchase or agree to purchase such
principal amount of the Bonds on the terms herein set forth. In any such
case, either the Representative or the Company shall have the right to
postpone the time of purchase for a period not to exceed five full business
days from the date determined as provided in Section 2 hereof, in order that
the necessary changes in the Registration Statement and Prospectus and any
other documents and arrangements may be effected. If the Representative shall
fail to procure a satisfactory party or parties to purchase or agree to
purchase such principal amount of the Bonds, and if the Company also does not
procure another party or parties to purchase or agree to purchase such
-15-
principal amount of the Bonds, as above provided, then this agreement shall
terminate. In the event of any such termination, the Company shall not be
under any liability to any Purchaser (except to the extent, if any, provided
in Section 4(j) hereof), nor shall any Purchaser (other than a Purchaser who
shall have failed or refused to purchase Bonds without some reason sufficient
to justify, in accordance with the terms hereof, its termination of its
obligations hereunder) be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Bonds, if, after this agreement becomes
effective and prior to the time of purchase, (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New
York Stock Exchange by the Commission or by the New York Stock Exchange, (iii)
a general banking moratorium shall have been declared by federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of major hostilities in which the United States is involved, any declaration
of war by the United States Congress or any other substantial national or
international calamity or emergency affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result that, in the
reasonable judgment of the Representative, the marketability of the Bonds
shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided in
this Section 8, the Company and each other Purchaser shall be notified
promptly by the Representative by telephone, confirmed in writing. If this
agreement shall not be carried out by any Purchaser for any reason permitted
hereunder, or if the sale of the Bonds to the Purchasers as herein
contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this agreement and shall not be liable to any Purchaser or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this agreement (except that the Company shall remain liable to
the extent provided in Section 4(j) hereof) and the Purchasers (other than a
defaulting Purchaser) shall be under no liability to the Company nor be under
any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses: if to the Purchasers or the Representative, to the Representative
at the address set forth following its signature in the Form of Proposal, and,
if to the Company, to the Company, attention Carol A. Falcone, c/o Southern
Company Services, Inc., One Wall Street, 42nd Floor, New York, N. Y. 10005,
and attention of A. E. Scarbrough, Vice President-Finance, 500 Bayfront
Parkway, Pensacola, Florida 32501.
-16-
10. Parties in Interest: The agreement herein set forth has been and
is made solely for the benefit of the Purchasers and the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and the controlling persons, if any, referred to in Sections 5 and
6 hereof, and their respective successors, assigns, executors and
administrators, and, subject to the provisions of Section 7 hereof, no other
person shall acquire or have any right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons,
firms or corporations named in Exhibit A to the Form of Proposal, the term
"Purchasers", as used herein, shall be deemed to mean the several persons,
firms or corporations so named (including any substitute purchaser or
purchasers procured as provided by Section 7 hereof and the Representative
hereinafter mentioned, if so named), and the term "Representative", as used
herein, shall be deemed to mean the person or persons designated as
representative or representatives of the Purchasers by, or in the manner
authorized by, the Purchasers, who, by signing the Form of Proposal, represent
that it or they have been authorized by the Purchasers to execute the Form of
Proposal on their behalf and to act for them in the manner herein provided.
In the event that all the Purchasers execute the Form of Proposal and no one
or more of them are designated to act as representative or representatives,
then the term "Representative" shall be deemed to mean all the persons signing
the Form of Proposal. If the Representative consists of more than one person,
the Representative may act by any one thereof. All obligations of the
Purchasers hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Exhibit A to the Form of Proposal, the
term "Purchasers" and the term "Representative", as used herein, shall mean
such person, firm or corporation.
-17-
EXHIBIT 1
[Letterhead of Beggs & Lane]
[Date]
as the several Purchasers under Purchase
Contract effective between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company") in
connection with the purchase by you pursuant to the Purchase Contract of $
principal amount of the Bonds, issued under the Indenture dated as of
September 1, 1941, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"), as supplemented and amended by
various indentures supplemental thereto including the Supplemental Indenture
dated as of (said Indenture, as so supplemented and amended,
being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by
the prospectus supplement dated (the "Prospectus"), filed
by the Company pursuant to Rule 424 of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Act, which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, _____, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ___________________
and the Current Reports on Form 8-K of the Company dated ___________________
(the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition,
we have examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing (except the Bonds, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Georgia law and with
respect to the Act, the Exchange Act, the Trust Indenture Act (as hereinafter
defined) and the Public Utility Holding Company Act of 1935, as amended, on
the opinion dated the date hereof rendered to you by Troutman Sanders LLP,
that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in 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.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Indenture (other than the Supplemental Indenture dated as
of ______________, which is in proper form for recordation) has been
duly recorded in all counties in which the property specifically
described therein is located and the Indenture is effective to create
the lien intended to be created thereby.
4. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
-2-
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
5. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
6. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
7. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
8. Except as otherwise stated under "Item 2-Properties" in the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, ____, the Company has good and marketable title in fee
simple to the Company's interests in the principal plants and other
important units of the Company's property therein described, and the
Indenture constitutes, as security for the Bonds, a direct first lien on
substantially all the fixed property and franchises owned by the
Company, used and useful in its public utility business, subject only to
excepted encumbrances, as therein defined, and upon the acquisition
hereafter by the Company of similar property in the States of Florida,
Georgia and Mississippi, will create such lien thereon, subject to liens
existing thereon at the time of acquisition and to the due recordation
of the Indenture in the counties in which such property is located, and
except as the enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and general principles of equity.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 5 above and in the
Prospectus in the third paragraph under the caption "Legal Opinions and
-3-
Experts". In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with other
counsel for the Company and with representatives of Arthur Andersen LLP.
Based upon our examination of the Registration Statement, the Prospectus and
the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Prospectus, as of , complied as to form in all
material respects with the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no opinion as
to the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such effective date), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the State Bar of Florida and we do not express any
opinion herein concerning any law other than the law of the States of Florida
and Mississippi and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
BEGGS & LANE
-4-
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase
Contract effective between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company") in
connection with the purchase by you pursuant to the Purchase Contract of $
principal amount of the Bonds, issued under the Indenture dated as of
September 1, 1941, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"), as supplemented and amended by
various indentures supplemental thereto including the Supplemental Indenture
dated as of (said Indenture, as so supplemented and amended,
being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by
the prospectus supplement dated (the "Prospectus"), filed
by the Company pursuant to Rule 424 of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Act, which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, _____, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended
______________________ and the Current Reports on Form 8-K of the Company
dated ___________________ (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing (except the Bonds, of
which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to enable us to express the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Florida and Mississippi
law upon the opinion of Beggs & Lane, referred to below, that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in 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.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
-2-
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
5. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
6. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
We are not passing upon matters relating to the lien of the Indenture on
property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the opinion, dated the date
hereof, of Beggs & Lane, general counsel to the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 4 above. In the course of
the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with other counsel for the Company and
with representatives of Arthur Andersen LLP. Based upon our examination of
the Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and our participation
in the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents,
as of their respective dates of filing with the Commission, complied as to
form in all material respects with the relevant requirements of the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
except that in each case we express no opinion as to the financial statements
or other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents,
-3-
and (ii) we have no reason to believe that the Registration Statement, as of
its effective date (including the Exchange Act Documents on file with the
Commission on such effective date), contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading,
or that the Prospectus (including the Exchange Act Documents) contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements
or other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not express any
opinion herein concerning any law other than the law of the State of Georgia
and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
TROUTMAN SANDERS LLP
-4-
EXHIBIT 3
[Letterhead of Dewey Ballantine]
[Date]
as the several Purchasers under Purchase
Contract effective , between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you
pursuant to the Purchase Contract of $ principal amount of the Bonds,
issued under the Indenture dated as of September 1, 1941, between Gulf Power
Company (the "Company") and The Chase Manhattan Bank (National Association),
as trustee (the "Trustee"), as supplemented and amended by various indentures
supplemental thereto including the Supplemental Indenture dated as of
(said Indenture, as so supplemented and amended, being hereinafter called the
"Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by the
prospectus supplement dated (the "Prospectus"), filed by the
Company pursuant to Rule 424 of the rules and regulations of the Securities
and Exchange Commission (the "Commission") under the Act, which pursuant to
Form S-3 incorporates by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, ____, the Quarterly Reports on
Form 10-Q of the Company for the quarters ended __________________ and the
Current Reports on Form 8-K of the Company dated ___________ (the "Exchange
Act Documents"), each as filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and the Indenture. In addition, we have
examined, and have relied as to matters of fact upon, the documents delivered
to you at the closing (except the Bonds, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Florida and Mississippi
law upon the opinion of Beggs & Lane, referred to below, and as to matters of
Georgia law upon the opinion of Troutman Sanders LLP, referred to below, that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in 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.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
-2-
5. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
6. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Bonds, and the legal opinions dated the date
hereof rendered to you by Beggs & Lane and Troutman Sanders LLP, counsel for
the Company, pursuant to the Purchase Contract, are in form satisfactory to
us. Insofar as the opinions expressed herein relate to or are dependent upon
matters governed by the laws of the States of Florida, Georgia and
Mississippi, we have relied upon the aforesaid opinions of Beggs & Lane and
Troutman Sanders LLP.
We are not passing upon matters relating to the lien of the Indenture on
property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the above-mentioned opinion of
Beggs & Lane.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 4 above. In the course of
the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with representatives of Arthur Andersen
LLP and with counsel for the Company. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement and the Prospectus and our participation in the conferences referred
to above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of , complied as to form in
all material respects with the requirements of the Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents, as of their respective dates of filing with
the Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no opinion as
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to the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such effective date), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
DEWEY BALLANTINE
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