Exhibit 1
CS First Boston Corporation
Name of Bidder
FORM OF PROPOSAL
For Purchase of
GULF POWER COMPANY
FIRST MORTGAGE BONDS
Dated: November 6, 1996
GULF POWER COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Ladies and Gentlemen:
Referring to the terms and conditions dated October 29, 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 $25,000,000 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 1/2% 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
98.141% 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,
/s/Robert A. Hanson
Robert A. Hanson
Vice President
Onbehalf of and
as
Representative(s)
of the persons,
firms and
corporations
named in Exhibit
A hereto.
CS First Boston Corporation
Park Avenue Plaza
New York, NY 10055
Address
Accepted:
GULF POWER COMPANY
By: /s/Wayne Boston
Title: Assistant Secretary
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
CS First Boston Corporation $25,000,000
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 (successor by merger to 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").
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 Troutman Sanders LLP, NationsBank Plaza, 600
Peachtree Street, Suite 5200, Atlanta, Georgia 30308 (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 tenth business day after this agreement becomes
effective (or at such other time or on such other day as may be agreed upon by
the Representative and the Company), unless postponed in accordance with the
provisions of Section 7 hereof. The time at which payment and delivery are to be
made is herein sometimes called the "time of purchase".
Delivery of definitive Bonds is expected to be made in registered form
without coupons in denominations of $1,000 and multiples thereof, registered in
such name or names as the Representative may request not later than 10 a.m. New
York Time on the third business day prior to the time of purchase, or, if no
such request is received, in the names of the respective Purchasers in
denominations selected by the Company. If the Representative shall request that
any of the Bonds be registered in a name or names other than that of the
Purchaser agreeing to purchase such Bonds, such Purchaser shall pay any transfer
taxes resulting from such request. The Company agrees to make the Bonds
available for inspection by the Representative at the office of the Trustee at
least 20 hours prior to the time of purchase. In the event that it becomes
necessary to make initial delivery of the Bonds in temporary form, such Bonds
will be exchangeable at said office of the Trustee, upon request, for definitive
fully registered Bonds of authorized denominations without charge to the holders
thereof as soon as is reasonably practicable.
3. Conditions of Purchasers' Obligations: The several obligations
of the Purchasers hereunder are subject to the accuracy of the
warranties and representations on the part of the Company herein
contained and to the following other conditions:
(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Bonds and the legal opinions
provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory
in form and substance to Dewey Ballantine, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative
with the approval of Dewey Ballantine:
(1) Opinion of 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
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 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 fifth
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.
(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 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.
(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 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 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, 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 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.
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.
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 (successor by merger
to 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
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 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 the date of
filing the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1995 (including such Annual Report on 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 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
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 (successor by merger
to 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.
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, and (ii)
we have no reason to believe that the Registration Statement, as of the date of
filing the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1995 (including such Annual Report on 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 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
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 (successor by merger to 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.
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 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 the date of filing the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1995 (including such Annual
Report on 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 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