1,600,000 Preferred Securities
Gulf Power Capital Trust I
(a Delaware Statutory Business Trust)
7.625% Trust Cumulative Quarterly Income Preferred Securities
(Liquidation Amount $25 Per Preferred Security)
UNDERWRITING AGREEMENT
January 27, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Gulf Power Capital Trust I (the "Trust"), a
statutory business trust organized under the Business Trust
Act (the "Delaware Act") of the State of Delaware (Chapter
38, Title 12, of the Delaware Code, 12 Del. C. 3801 et
seq.), and Gulf Power Company, a Maine corporation (the
"Company" and, together with the Trust, the "Offerors"),
confirm their agreement (the "Agreement") with you and each
of the other Underwriters named in Schedule I hereto
(collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided
in Section 10 hereof), for whom you are acting as
representative (in such capacity, you shall hereinafter be
referred to as the "Representative"), with respect to the
sale by the Trust and the purchase by the Underwriters,
acting severally and not jointly, of the respective numbers
of 7.625% Trust Cumulative Quarterly Income Preferred
Securities (liquidation amount $25 per preferred security)
of the Trust ("Preferred Securities") set forth in
Schedule I. The Preferred Securities will be guaranteed by
the Company with respect to distributions and payments upon
liquidation, redemption and otherwise (the "Guarantee")
pursuant to the Preferred Securities Guarantee Agreement
(the "Guarantee Agreement"), dated as of January 1, 1997,
between the Company and The Chase Manhattan Bank, as trustee
(the "Guarantee Trustee"). The Preferred Securities and the
related Guarantee are referred to herein as the
"Securities."
The Offerors understand that the Underwriters
propose to make a public offering of the Preferred
Securities as soon as the Representative deems advisable
after this Agreement has been executed and delivered. The
entire proceeds from the sale of the Securities will be
combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common
Securities") and will be used by the Trust to purchase the
$41,237,125 aggregate principal amount of Series A 7.625%
Junior Subordinated Notes (the "Junior Subordinated Notes")
to be issued by the Company. The Preferred Securities and
the Common Securities will be issued pursuant to the Amended
and Restated Trust Agreement, dated as of January 1, 1997
(the "Trust Agreement"), among the Company, as Depositor,
Linda Malone and Wayne Boston (the "Administrative
Trustees"), Chase Manhattan Bank Delaware, a Delaware
banking corporation (the "Delaware Trustee") and The Chase
Manhattan Bank, a New York banking corporation (the
"Property Trustee" and, together with the Delaware Trustee
and the Administrative Trustees, the "Trustees"), as
trustees, and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Junior
Subordinated Notes will be issued pursuant to an indenture,
dated as of January 1, 1997 (the "Base Indenture"), between
the Company and The Chase Manhattan Bank, as trustee (the
"Debt Trustee"), and a first supplemental indenture to the
Base Indenture, dated as of January 1, 1997 (the
"Supplemental Indenture," and together with the Base
Indenture and any other amendments or supplements thereto,
the "Indenture"), between the Company and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Offerors jointly and severally represent and warrant to each
Underwriter as follows:
(a) A registration statement on Form S-3, as
amended (File Nos. 333-19271, 333-19271-01 and 333-
19271-02), in respect of the Preferred Securities, the
Guarantee and the Junior Subordinated Notes has been
prepared and filed in accordance with the provisions of
the Securities Act of 1933, as amended (the "1933
Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended,
and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to you,
and to you for each of the other Underwriters, has been
declared effective by the Commission in such form
(except that copies of the registration statement, as
amended, and any post-effective amendment delivered to
you for each of the other Underwriters need not include
exhibits but shall include all documents incorporated
by reference therein); and no stop order suspending the
effectiveness of such registration statement has been
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issued and no proceeding for that purpose has been
initiated or, to the best knowledge of the Company,
threatened by the Commission (any preliminary
prospectus, as supplemented by a preliminary prospectus
supplement, included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the
1933 Act, being hereinafter called a "Preliminary
Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the time such registration
statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating
to the Preferred Securities, the Guarantee and the
Junior Subordinated Notes, in the form in which it was
included in the Registration Statement at the time it
became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration
Statement; the Prospectus as supplemented by a
preliminary prospectus supplement dated January 21,
1997 relating to the Preferred Securities, including
any documents incorporated by reference therein as of
such date, being hereinafter called the "Preliminary
Supplemented Prospectus"; and the Prospectus as amended
or supplemented in final form by a prospectus
supplement relating to the Preferred Securities in the
form in which it is filed with the Commission, pursuant
to Rule 424(b) under the 1933 Act in accordance with
Section 3(g) hereof, including any documents
incorporated by reference therein as of the date of
such filing, being hereinafter called the "Final
Supplemented Prospectus").
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(b) The documents incorporated by reference in
the Registration Statement or Prospectus, when they
were filed with the Commission complied in all material
respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission
thereunder, and as of such time of filing, when read
together with the Prospectus, none of such documents
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when
such documents are filed with the Commission, will
comply in all material respects with the applicable
provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, except that neither the Trust nor the
Company makes any warranty or representation to any
Underwriter with respect to: (A) any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the
Company by an Underwriter through you expressly for use
in the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus; or (B) any information set
forth in the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus under the caption "Book-
Entry-Only Issuance -- The Depository Trust Company".
(c) The Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with
the applicable provisions of the 1933 Act and the rules
and regulations of the Commission thereunder and did
not contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
(d) The Registration Statement, the Prospectus
and, to the extent not used to confirm sales of the
Securities, the Preliminary Supplemented Prospectus,
comply, and the Final Supplemented Prospectus and any
further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-
effective amendments are declared effective or
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supplements are filed with the Commission, as the case
may be, will comply, in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act,
the 1939 Act (hereinafter defined) and the General
Rules and Regulations of the Commission thereunder and
do not and will not, (i) as of the applicable effective
date as to the Registration Statement and any amendment
thereto, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus, and (iii) as of
the applicable filing date as to the Final Supplemented
Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material
fact or omit to state a material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; except that neither the Company nor the
Trust makes any warranties or representations with
respect to (A) that part of the Registration Statement
which shall constitute the Statements of Eligibility
(Form T-1) (collectively, the "Form T-1") under the
Trust Indenture Act of 1939, as amended (the "1939
Act"), (B) statements or omissions made in the
Registration Statement, the Preliminary Supplemented
Prospectus, or the Final Supplemented Prospectus in
reliance upon and in conformity with information
furnished in writing to the Trust or the Company by an
Underwriter expressly for use therein or (C) any
information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under
the caption "Book-Entry Only Issuance -- The Depository
Trust Company".
(e) With respect to the Registration Statement,
the conditions for use of Form S-3, as set forth in the
General Instructions thereof, have been satisfied.
(f) Since the respective dates as of which
information is given in the Registration Statement and
the Final Supplemented Prospectus, except as otherwise
stated therein, there has been no material adverse
change in the business, properties or financial
condition of the Company.
(g) Since the respective dates as of which
information is given in the Registration Statement and
the Final Supplemented Prospectus, except as otherwise
stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any
development involving a prospective material adverse
change in or affecting the business, properties or
financial condition of the Trust.
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(h) The Company is a corporation duly organized
and existing under the laws of the State of Maine, is
duly qualified to carry on its business as a foreign
corporation under the laws of the States of Florida,
Georgia and Mississippi, and has due corporate
authority to carry on the public utility business in
which it is engaged and to own and operate the
properties used by it in such business, to enter into
and perform its obligations under this Agreement, the
Trust Agreement, the Indenture and the Guarantee
Agreement and to purchase, own, and hold the Common
Securities issued by the Trust and to issue and deliver
the Junior Subordinated Notes and the Guarantee.
(i) The Trust has been duly created and is
validly existing and in good standing as a business
trust under the Delaware Act with the power and
authority to own property and to conduct its business
as described in the Registration Statement and Final
Supplemented Prospectus and to enter into and perform
its obligations under this Agreement and the Trust
Agreement; the Trust is duly qualified to transact
business as a foreign company and is in good standing
in any other jurisdiction in which such qualification
is necessary, except to the extent that the failure to
so qualify or be in good standing would not have a
material adverse effect on the Trust; the Trust is not
a party to or otherwise bound by any agreement other
than those described in the Final Supplemented
Prospectus; the Trust is and will be classified for
United States federal income tax purposes as a grantor
trust and not as an association taxable as a
corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust to the Company against payment
therefor as described in the Registration Statement and
Final Supplemented Prospectus, will be validly issued
and (subject to the terms of the Trust Agreement) fully
paid and non-assessable undivided beneficial interests
in the Trust and will conform in all material respects
to all statements relating thereto contained in the
Final Supplemented Prospectus; the issuance of the
Common Securities is not subject to preemptive or other
similar rights; and, on the Closing Date (as defined
herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the
Company, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable
right.
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(k) This Agreement has been duly authorized,
executed and delivered by each of the Offerors.
(l) The Trust Agreement has been duly authorized
by the Company and, on the Closing Date, will have been
duly executed and delivered by the Company and the
Administrative Trustees, and assuming due
authorization, execution and delivery of the Trust
Agreement by the Delaware Trustee and the Property
Trustee, the Trust Agreement will, on the Closing Date,
be a valid and binding obligation of the Company and
the Administrative Trustees, enforceable against the
Company and the Administrative Trustees in accordance
with its terms, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent
conveyance, moratorium or other similar laws affecting
creditors' rights generally or (2) general principles
of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the
"Enforceability Exceptions") and will conform in all
material respects to all statements relating thereto in
the Final Supplemented Prospectus; and, on the Closing
Date, the Trust Agreement will have been duly qualified
under the 1939 Act.
(m) The Guarantee Agreement has been duly
authorized by the Company and, on the Closing Date,
will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and
delivery of the Guarantee Agreement by the Guarantee
Trustee, the Guarantee Agreement will, on the Closing
Date, constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance
with its terms except to the extent that enforcement
thereof may be limited by the Enforceability
Exceptions, and each of the Guarantee and the Guarantee
Agreement will conform in all material respects to all
statements relating thereto contained in the Final
Supplemented Prospectus; and, on the Closing Date, the
Guarantee Agreement will have been duly qualified under
the 1939 Act.
(n) The Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and
delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein,
will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and non-assessable
undivided beneficial interests in the Trust, will be
entitled to the benefits of the Trust Agreement and
will conform in all material respects to all statements
relating thereto contained in the Final Supplemented
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Prospectus; the issuance of the Preferred Securities is
not subject to preemptive or other similar rights;
(subject to the terms of the Trust Agreement) holders
of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as
extended to stockholders of private corporations for
profit.
(o) The Indenture has been duly authorized by the
Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, assuming
due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on
the Closing Date, constitute a valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms except to the
extent that enforcement thereof may be limited by the
Enforceability Exceptions; the Indenture will conform
in all material respects to all statements relating
thereto contained in the Final Supplemented Prospectus;
and, on the Closing Date, the Indenture will have been
duly qualified under the 1939 Act.
(p) The issuance and delivery of the Junior
Subordinated Notes have been duly authorized by the
Company and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by the
Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment
therefor as described in the Prospectus, will
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement
thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will
conform in all material respects to all statements
relating thereto in the Final Supplemented Prospectus.
(q) The Company's obligations under the Guarantee
(i) are subordinate and junior in right of payment to
all liabilities of the Company, except those obliga-
tions or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred
stock issued by the Company and (iii) are senior to all
common stock of the Company.
(r) The Junior Subordinated Notes are
subordinated and junior in right of payment to all
"Senior Indebtedness" (as defined in the Indenture) of
the Company.
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(s) Each of the Administrative Trustees of the
Trust is an employee of the Company and has been duly
authorized by the Company to execute and deliver the
Trust Agreement.
(t) Neither the Trust nor the Company nor any of
the Company's other subsidiaries is and, after giving
effect to the offering and sale of the Preferred
Securities, will be an "investment company" or an
entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(u) The execution, delivery and performance by
the Offerors of this Agreement, the Trust Agreement,
the Preferred Securities, the Common Securities, the
Indenture, the Junior Subordinated Notes, the Guarantee
Agreement and the Guarantee and the consummation by the
Offerors of the transactions contemplated herein and
therein and compliance by the Offerors with their
respective obligations hereunder and thereunder shall
have been duly authorized by all necessary action
(corporate or otherwise) on the part of the Offerors
and do not and will not result in any violation of the
charter or bylaws of the Company, or the Trust
Agreement or related Certificate of Trust and do not
and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or
assets of the Trust or the Company under (A) any
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the
Trust or the Company is a party or by which either of
them may be bound or to which any of their properties
may be subject (except for conflicts, breaches or
defaults which would not, individually or in the
aggregate, be materially adverse to the Trust or the
Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality
or court, domestic or foreign, or any regulatory body
or administrative agency or other governmental body
having jurisdiction over the Trust or the Company, or
any of their respective properties.
(v) No authorization, approval, consent or order
of any court or governmental authority or agency is
necessary in connection with the issuance and sale of
the Common Securities or the offering of the Preferred
Securities, the Junior Subordinated Notes or the
Guarantee or the transactions contemplated in this
9
Agreement, except (A) such as may be required under the
1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility
Holding Company Act of 1935, as amended (the "1935
Act"); (C) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the
1939 Act; (D) the approval of the Florida Public
Service Commission (the "Florida Commission"); and (E)
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and
warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to
each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase
from the Trust, at the price per security set forth in
Schedule II hereto, the number of Preferred Securities set
forth in Schedule I opposite the name of such Underwriter,
plus any additional number of Preferred Securities that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
The purchase price per security to be paid by the
several Underwriters for the Preferred Securities shall be
an amount equal to the initial public offering price set
forth on Schedule II, which is a fixed price determined by
agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the
sale of the Preferred Securities will be used to purchase
the Junior Subordinated Notes of the Company, the Company
hereby agrees to pay on the Closing Date (as defined below)
to the Representative, for the accounts of the several
Underwriters, a commission per Preferred Security as set
forth on Schedule II for the Preferred Securities to be
delivered by the Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and
delivery of certificates for, the Preferred Securities shall
be made at the offices of Troutman Sanders LLP, NationsBank
Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia at 10:00
A.M., New York time, on January 31, 1997 (unless postponed
in accordance with the provisions of Section 10) or such
other time, place or date as shall be agreed upon by the
Representative, the Trust and the Company (such time and
date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Trust by wire
transfer in federal funds at the Closing Date, against
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delivery to the Representative for the respective accounts
of the Underwriters of certificates for the Preferred
Securities to be purchased by them. Certificates for the
Preferred Securities shall be in such denominations and
registered in such names as the Representative may request
in writing at least two business days before the Closing
Date. It is understood that each Underwriter has authorized
the Representative, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The
Representative, individually and not as Representative of
the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose check has not been
received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities
will be made available for examination and packaging by the
Representative not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or
cause to be paid, the commission payable at such time to the
Underwriters under Section 2(a) hereof by wire transfer
payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of
the Offerors jointly and severally covenants with each
Underwriter as follows:
(a) The Offerors, on or prior to the Closing
Date, will deliver to the Underwriters conformed copies
of the Registration Statement as originally filed and
of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each
case including all exhibits filed therewith, and
including unsigned copies of each consent and
certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company
is advised thereof, it will advise the Representative
orally of the issuance of any stop order under the 1933
Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the
Company shall have received notice, and will use its
best efforts to prevent the issuance of any such stop
order and to secure the prompt removal thereof, if
issued. The Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration
Statement, the Prospectus, the Preliminary Supplemented
Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case
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without exhibits) for distribution to each Underwriter
and, from time to time, as many copies of the
Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters
may reasonably request for the purposes contemplated by
the 1933 Act or the 1934 Act.
(b) The Offerors will furnish the Underwriters
with copies of each amendment and supplement to the
Preliminary Supplemented Prospectus and Final
Supplemented Prospectus relating to the offering of the
Preferred Securities in such quantities as the
Underwriters may from time to time reasonably request.
If, during the period (not exceeding nine months) when
the delivery of a prospectus shall be required by law
in connection with the sale of any Preferred Securities
by an Underwriter or dealer, any event relating to or
affecting the Company, or of which the Company shall be
advised in writing by the Underwriters, shall occur,
which in the opinion of the Company or of Underwriters'
counsel should be set forth in a supplement to or an
amendment of the Preliminary Supplemented Prospectus or
Final Supplemented Prospectus, as the case may be, in
order to make the Preliminary Supplemented Prospectus
or Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if
for any other reason it shall be necessary during such
period to amend or supplement the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or
the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of
the Preferred Securities and (ii) at its expense, make
any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments
to the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus which will supplement or amend
the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a
material fact or omit to state any material fact
necessary in order to make the statements therein, in
the light of the circumstances when the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in
connection with the sale of any Preferred Securities
after the expiration of the period specified in the
preceding sentence, the Company, upon the request of
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such Underwriter, will furnish to such Underwriter, at
the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements
or amendments to the Final Supplemented Prospectus,
complying with Section 10(a) of the 1933 Act. During
the period specified in the second sentence of this
subsection, the Company will continue to prepare and
file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided, that
the Company shall not file such documents or amendments
without also furnishing copies thereof prior to such
filing to the Representative and Dewey Ballantine.
(c) The Offerors will endeavor, in cooperation
with the Underwriters, to qualify the Preferred
Securities and, to the extent required or advisable,
the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws
of such states and the other jurisdictions of the
United States as the Representative may designate;
provided, however, that neither of the Offerors shall
be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file
a consent to service of process or to file annual
reports or to comply with any other requirements in
connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to
its security holders as soon as practicable but not
later than 45 days after the close of the period
covered thereby, an earnings statement of the Company
(in form complying with the provisions of Rule 158 of
the rules and regulations under the 1933 Act) covering
a twelve-month period beginning not later than the
first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158)
of the Registration Statement.
(e) The Offerors will use best efforts to effect
the listing of the Preferred Securities on the New York
Stock Exchange; if the Preferred Securities are
exchanged for Junior Subordinated Notes, the Company
will use its best efforts to effect the listing of the
Junior Subordinated Notes on any exchange on which the
Preferred Securities are then listed.
(f) During a period of 15 days from the date of
this Agreement, neither the Trust nor the Company will,
without the Representative's prior written consent,
directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any
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Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred
Securities or the Junior Subordinated Notes or any debt
securities substantially similar to the Junior
Subordinated Notes or equity securities substantially
similar to the Preferred Securities (except for the
Junior Subordinated Notes and the Preferred Securities
issued pursuant to this Agreement).
(g) As soon as practicable after the date of this
Agreement, and in any event within the time prescribed
by Rule 424 under the 1933 Act, to file the Final
Supplemented Prospectus with the Commission and to
advise the Representative of such filing and to confirm
such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will
pay all expenses incident to the performance of each
Offeror's obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing
of the Registration Statement as originally filed and of
each amendment thereto, (ii) the preparation, issuance and
delivery of the certificate(s) for the Preferred Securities
to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the
qualification of the Preferred Securities and, to the extent
required or advisable, the Guarantee and the Junior
Subordinated Notes, under securities laws in accordance with
the provisions of Section 3(c) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Preliminary
Supplemented Prospectus, the Final Supplemented Prospectus,
and any amendments or supplements thereto, (vi) the printing
and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of
the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Debt Trustee, including
the fees and disbursements of counsel for the Debt Trustee
in connection with the Indenture and the Junior Subordinated
Notes, (ix) the fees and expenses of the Delaware Trustee,
the Property Trustee and the Guarantee Trustee, including
the fees and disbursements of counsel for the Delaware
Trustee in connection with the Trust Agreement and the
related Certificate of Trust, (x) the fees and disbursements
of Delaware counsel to the Trust, (xi) any fees payable in
connection with the rating of the Preferred Securities and
Junior Subordinated Notes, (xii) the fees and expenses
14
incurred in connection with the listing of the Preferred
Securities and, if applicable, the Junior Subordinated Notes
on the New York Stock Exchange, (xiii) the cost and charges
of any transfer agent or registrar and (xiv) the cost of
qualifying the Preferred Securities with The Depository
Trust Company.
Except as otherwise provided in Section 9 hereof,
the Underwriters shall pay all other expenses incurred by
them in connection with their offering of the Preferred
Securities, including fees and disbursements of their
counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS'
OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Preferred Securities are subject to
the following conditions:
(a) No stop order suspending the effectiveness of
the Registration Statement shall be in effect on the
Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing
of the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Preliminary
Supplemented Prospectus or Final Supplemented
Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required
by Rule 424.
(b) Orders of the Florida Commission and the
Commission permitting the transactions contemplated
hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and
shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such
order or orders heretofore entered, copies of which
have heretofore been delivered to the Representative,
are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the
Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties
to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the Representative shall
have received:
15
(1) The opinion, dated the Closing Date, of
Beggs & Lane, counsel for the Company, substantially in
the form attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of
Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
III-B.
(3) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to the
Trust, substantially in the form attached hereto as
Schedule IV.
(4) The opinion, dated the Closing Date, of
Richards, Layton & Finger, Delaware counsel to Chase
Manhattan Bank Delaware, as Delaware Trustee under the
Trust Agreement, substantially in the form attached
hereto as Schedule V.
(5) The opinion, dated the Closing Date, of
Cravath, Swaine & Moore, counsel to the Property
Trustee, the Guarantee Trustee and the Debt Trustee,
substantially in the form attached hereto as Schedule
VI.
(6) The favorable opinion, dated as of the
Closing Date, of Dewey Ballantine, counsel for the
Underwriters, substantially in the form attached hereto
as Schedule VII.
(7) At the Closing Date, there shall not
have been, since the date hereof or since the
respective dates as of which information is given in
the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the
business, properties or financial condition of the
Trust or the Company, whether or not arising in the
ordinary course of business, and the Representative
shall have received a certificate of the President or
any Vice President of the Company and a certificate of
the Administrative Trustees of the Trust, and dated as
of the Closing Date, to the effect that (i) there has
been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are
true and correct with the same force and effect as
though expressly made at and as of the Closing Date,
(iii) the Trust and the Company have complied with all
agreements and satisfied all conditions on their
respective parts to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that
16
purpose have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(8) On this Closing Date, the Representative
shall have received from Arthur Andersen LLP a letter
dated the Closing Date to the effect that: (A) they are
independent public accountants with respect to the
Company within the meaning of the 1933 Act and the
rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements 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 1933 Act and
the 1934 Act and the rules and regulations under the
1933 Act and the 1934 Act; (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 1934 Act and the rules
and regulations under the 1934 Act; (iv) reading the
unaudited amounts for Operating Revenues, Income Before
Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis),
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 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
17
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 Ratios of Earnings to
Fixed Charges and Earnings to Fixed Charges Plus
Preferred Dividend Requirements (Pre-Income Tax Basis)
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 Underwriter's purposes.
(9) On the Closing Date, counsel for the
Underwriters shall have been furnished with such
documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the
18
issuance and sale of the Preferred Securities as herein
contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken
by the Offerors, in connection with the issuance and
sale of the Preferred Securities as herein contemplated
shall be satisfactory in form and substance to the
Representative and Dewey Ballantine, counsel for the
Underwriters.
(10) On the Closing Date, the Preferred
Securities shall have been approved for listing on the
New York Stock Exchange upon notice of issuance.
(11) On the Closing Date, the Representative
shall have received a certificate of a Vice President
of the Company certifying that a Special Event (as
defined in the Final Supplemented Prospectus) shall not
have occurred and be continuing.
(12) That no amendment or supplement to the
Registration Statement, the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any
filing made by the Company pursuant to Section 13 or 14
of the 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 Underwriter or
Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the market-
ability of the Preferred Securities.
(13) The Company and the Trust shall have
performed their respective obligations when and as
provided under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time prior
to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided
in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF
THE OFFERORS.
The obligations of the Offerors shall be subject
to the conditions set forth in the first sentence of Section
5(a) and in Section 5(b). In case such conditions shall not
have been fulfilled, this Agreement may be terminated by the
19
Company by mailing or delivering written notice thereof to
the Underwriters. Any such termination shall be without
liability of any party to any other party except as
otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Offerors jointly and severally agree to
indemnify and hold harmless each of the Underwriters and
each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or
any of them may become subject under the 1933 Act, 1934 Act
or otherwise, and to reimburse the Underwriters and such
controlling person or persons, if any, for any legal or
other expenses incurred by them in connection with defending
any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
Prospectus or, if the Offerors shall furnish to the
Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the
1934 Act which are incorporated therein by reference, in any
Preliminary Prospectus, the Registration Statement, the
Prospectus, the Preliminary Supplemented Prospectus, or the
Final Supplemented Prospectus as so amended or supplemented,
or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims,
damages, liabilities or actions arise out of or are based
upon any such untrue statement or alleged untrue statement
or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus,
the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for
use therein and except that this indemnity with respect to
the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
Prospectus, if the Offerors shall have furnished any
amendment or supplement thereto, shall not inure to the
benefit of any Underwriter (or of any person controlling
such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the
Preferred Securities to any person if a copy of the
Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented
20
Prospectus (exclusive of documents incorporated therein by
reference pursuant to Item 12 of Form S-3), as the same may
then be amended or supplemented, shall not have been sent or
given by or on behalf of such Underwriter to such person
with or prior to the written confirmation of the sale
involved and the untrue statement or alleged untrue
statement or omission or alleged omission was corrected in
the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus
as supplemented or amended at the time of such confirmation.
Each Underwriter agrees, within ten days after the receipt
by it of notice of the commencement of any action in respect
of which indemnity may be sought by it, or by any person
controlling it, from the Offerers on account of its
agreement contained in this Section 7, to notify the
Offerors in writing of the commencement thereof but the
omission of such Underwriter so to notify the Offerors of
any such action shall not release the Offerors from any
liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the
indemnity agreement contained in this Section 7. In case
any such action shall be brought against the Underwriters or
any such person controlling such Underwriters and such
Underwriter shall notify the Offerors of the commencement
thereof as above provided, the Offerors shall be entitled to
participate in (and, to the extent that they shall wish,
including the selection of counsel, to direct) the defense
thereof, at their own expense. In case the Offerors elect
to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and
expenses of such counsel shall be at the expense of such
Underwriter or controlling person unless the employment of
such counsel has been authorized in writing by the Offerors
in connection with defending such action. No indemnifying
party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such
action or claim and (ii)does not include any statement as
to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party. In no event
shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim effected without
its prior written consent.
21
(b) The Company agrees to indemnify the Trust
against all loss, liability, claim, damage and expense
whatsoever, as due from the Trust under Section 7(a)
hereunder.
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors and such of its officers who have signed the
Registration Statement, the Trust and each other Underwriter
and each person, if any, who controls the Offerors or any
such other Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act to the same
extent and upon the same terms as the indemnity agreement of
the Offerors set forth in Section 7(a) hereof, but only with
respect to alleged untrue statements or omissions made in
the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus, or such documents as amended
or supplemented, in reliance upon and in conformity with
information furnished in writing to the Offerors by, or
through the Representative on behalf of, such Underwriter
for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements
contained in this Agreement, or contained in certificates of
officers or Trustees of the Offerors submitted pursuant
hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by, or on behalf of
the Offerors and shall survive delivery of the Preferred
Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this
Agreement, by notice to the Offerors, at any time at or
prior to the Closing Date if (i) trading in securities on
the New York Stock Exchange shall have been generally
suspended, (ii) minimum or maximum ranges for prices shall
have been generally established on the New York Stock
Exchange by the Commission or by to New York Stock Exchange,
(iii) a general banking moratorium shall have been declared
by federal or New York State authorities, (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
22
that, in the reasonable judgement of the Representative, the
marketability of the Preferred Securities shall have been
materially impaired.
(b) If this Agreement shall be terminated by the
Underwriters pursuant to subsection (a) above or because of
any failure or refusal on the part of the Offerors to comply
with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable
to perform their obligations under this Agreement, then in
any such case, the Company will reimburse the Underwriters,
severally, for the reasonable fees and disbursements of
Dewey Ballantine and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparations for the purchase, sale
and delivery of the Preferred Securities and, upon such
reimbursement, the Offerors shall be absolved from any
further liability hereunder, except as provided in Sections
4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail
on the Closing Date to purchase the Preferred Securities
that it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities
does not exceed 10% of the Preferred Securities, each
of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount
thereof in the proportions that their respective
underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities
exceeds 10% of the Preferred Securities, this Agreement
shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
23
In the event of any such default which does not
result in a termination of this Agreement, either the
Representative or the Offerors shall have the right to
postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the
Registration Statement or Final Supplemented Prospectus or
in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 85
Broad Street, New York, New York 10004, Attention: Don
Hansen, Registration; notices to the Offerors shall be
directed to the Company at 500 Bayfront Parkway, Pensacola,
Florida 32501, Attention: Corporate Secretary, with a copy
to Southern Company Services, Inc., 270 Peachtree Street,
N.W., Atlanta, Georgia 30303, Attention: Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the
Trust, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation,
other than the Underwriters and the Trust and the Company
and their respective successors and the controlling persons
and officers, directors and trustees referred to in Section
7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the Underwriters and
the Trust and the Company and their respective successors,
and said controlling persons and officers, directors and
trustees and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Preferred Securities from any Underwriter shall
be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. This
Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to
agreements made and to be performed in said State. Except
as otherwise set forth herein, specified times of day refer
to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be
executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall
together constitute one and the same instrument.
24
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to
the Trust and the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and
the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By:______________________________
Title:___________________________
GULF POWER CAPITAL TRUST I
By: Gulf Power Company, as
Depositor
_________________________________
Name:
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written
GOLDMAN, SACHS & CO.
By:_________________________________________
(Goldman, Sachs & Co.)
For itself and as Representative of the other
Underwriters named in Schedule I hereto.
SCHEDULE I
NAME OF UNDERWRITER UMBER OF SECURITIES
Goldman, Sachs & Co. 234,000
Dean Witter Reynolds Inc. 234,000
A.G. Edwards & Sons, Inc. 234,000
The Robinson-Humphrey Company, Inc. 234,000
Smith Barney Inc. 234,000
Bear, Stearns & Co. Inc. 20,000
J.C. Bradford & Co. 20,000
Alex. Brown & Sons Incorporated 20,000
Donaldson, Lufkin & Jenrette Securities Corporation 20,000
EVEREN Securities, Inc. 20,000
Interstate/Johnson Lane Corporation 20,000
Legg Mason Wood Walker, Incorporated 20,000
Morgan Keegan & Company, Inc. 20,000
Oppenheimer & Co., Inc. 20,000
Prudential Securities Incorporated 20,000
Raymond James & Associates, Inc. 20,000
Wheat, First Securities, Inc. 20,000
Advest, Inc. 10,000
Blaylock & Partners, L.P. 10,000
Cowen & Company 10,000
Dain Bosworth Incorporated 10,000
Fahnestock & Co. Inc. 10,000
McDonald & Company Securities, Inc. 10,000
McGinn, Smith & Co., Inc. 10,000
The Ohio Company 10,000
Olde Discount Corporation 10,000
Piper Jaffray Inc. 10,000
Principal Financial Securities, Inc. 10,000
Rauscher Pierce Refsnes, Inc. 10,000
Roney & Co., LLC 10,000
Muriel Siebert & Co., Inc. 10,000
Stephens Inc. 10,000
Sutro & Co. Incorporated 10,000
Trilon International Inc. 10,000
Tucker Anthony Incorporated 10,000
U.S. Clearing Corp. 10,000
TOTAL 1,600,000
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $25
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $.50 for
Preferred Securities sold to certain
institutions; $.7875 for Preferred
Securities sold to other purchasers
Schedule III-A
[Letterhead of BEGGS & LANE]
___________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% TRUST CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as general counsel to Gulf Power
Company (the "Company") in connection with (i) its formation
of Gulf Power Capital Trust I (the "Trust"), a Delaware
statutory business trust, pursuant to the amended and
restated trust agreement dated as of __________ __, 199_
among the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of
Cumulative Quarterly Income Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale
of Common Securities evidencing approximately a 3% undivided
interest in the Trust; (iv) the Company's issuance and sale
to the Trust of approximately $___,___,___ of its Series A
_.__% Junior Subordinated Notes (the "Notes") pursuant to a
Subordinated Note Indenture dated as of ___________ __,
199_, by and between the Company and The Chase Manhattan
Bank, as trustee, as supplemented by the First Supplemental
Indenture dated as of ________ __, 199_ (collectively, the
"Indenture"); and (v) its issuance of a guarantee (the
"Guarantee") of the Preferred Securities pursuant to a
Preferred Securities Guarantee Agreement dated as of
_________ __, 199_ (the "Guarantee Agreement") between the
Company and Chase Manhattan Bank Delaware, as trustee. The
Preferred Securities are being sold to you today pursuant to
the terms of an Underwriting Agreement dated January __,
1997, among the Company, the Trust and the underwriters
named in Schedule I thereto (the "Underwriters") for whom
you are acting as Representative (the "Underwriting
Agreement"). This opinion is being delivered to you as
Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos. 333-
19271, 333-19271-01 and 333-19271-02) pertaining to the
Preferred Securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"),
and the prospectus dated _______ ___, 199_ as supplemented
by a final prospectus supplement dated __________, 199_ (the
"Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1995, 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").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
We are of the opinion, relying as to matters of New
York law upon the opinion dated hereof rendered to you by
Dewey Ballantine, as to matters of Delaware law upon the
opinion dated hereof rendered to you by Richards, Layton &
Finger, 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 organized 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 under the laws of the
States of Florida, Georgia and Mississippi, and has due
corporate authority to carry on the public utility business
in which it is engaged and to own and operate the properties
used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
2
3. All orders, consents, or other authorizations or
approvals of the Florida Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and the delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity; and the Notes conform
as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding instrument of the Company, enforceable
3
against the Company in accordance with its terms, subject to
the qualifications that the enforceability of the Company's
obligations under the Guarantee may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee conforms as to legal
matters in all material respects to the description thereof
in the Final Supplemented Prospectus.
7. The Trust Agreement has been duly authorized,
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustees, the
Trust Agreement constitutes a valid and binding obligation
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally,
and by general principles of equity.
8. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act").
9. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
10. The statements and legal conclusions contained in
the Final Supplemented Prospectus under the caption "Certain
Federal Income Tax Considerations" are correct in all
material respects.
11. To the best of our knowledge, all of the issued
and outstanding Common Securities of the Trust are directly
owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
12. The execution, delivery and performance by the
Trust of the Underwriting Agreement and the Trust Agreement;
the issuance by the Trust of the Preferred Securities and
the Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the
Trust with its obligations thereunder do not and will not
result in any violation of the Trust Agreement or related
Certificate of Trust, and do not and will not conflict with,
4
or result in, a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any
other agreement or instrument known to us to which the Trust
is a party or by which it may be bound or to which any of
its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect on the condition
(financial or otherwise), of the Trust, (B) any existing
applicable law, rule or regulation applicable to the Trust
(other than the securities or blue sky laws of any
jurisdiction, as to which we express no opinion) or (C) any
judgment, order or decree known to us of any government,
governmental instrumentality, or court, domestic or foreign,
or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Trust or any
of its properties; and the Trust is not a party to or
otherwise bound by any agreement other than those which are
exhibits (or included in exhibits) to the Registration
Statement.
13. The Common Securities have been duly authorized by
the Trust Agreement and (subject to the terms of the Trust
Agreement), when issued and delivered by the Trust to the
Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued and (subject
to the terms of the Trust Agreement) fully paid and non-
assessable beneficial interests in the assets of the Trust;
and the issuance of the Common Securities is not subject to
preemptive or other similar rights.
14. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; the holders of the
Preferred Securities will (subject to the terms of the Trust
Agreement) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders
of private corporations for profit organized under the
general corporation law of the State of Delaware; the
issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
5
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6, 10 and 14 above and in the
Final Supplemented Prospectus in the second and third
paragraphs under the caption "Experts". In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with other
counsel for the Company and with representatives of Arthur
Andersen LLP. Based upon our examination of the
Registration Statement, the Final Supplemented Prospectus
and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion
that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of __________,
complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the
Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement therein of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief
with respect to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents.
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 and, to the extent set
6
forth herein, the laws of the States of Delaware and New
York.
This opinion is rendered to you in connection with
the above-described transaction. This opinion may not be
relied upon by you for any other purpose, or relied upon by
or furnished to any other person without our prior written
consent, except that Troutman Sanders LLP and Dewey
Ballantine may rely on this opinion in giving their opinions
pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Florida and
Mississippi law.
Yours very truly,
BEGGS & LANE
7
Schedule III-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% TRUST CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
Dear Sirs:
We have acted as counsel to Gulf Power Company
(the "Company") in connection with (i) its formation of Gulf
Power Capital Trust I, a Delaware statutory business trust
(the "Trust"), pursuant to the amended and restated trust
agreement dated __________, 199_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the
Trust's issuance and sale of Cumulative Quarterly Income
Preferred Securities evidencing approximately a 97%
undivided interest in the Trust (the "Preferred
Securities"); (iii) the Trust's issuance and sale of Common
Securities evidencing approximately a 3% undivided interest
in the Trust; (iv) the Company's issuance and sale to the
Trust of $___________ of its Series A ___% Junior
Subordinated Notes (the "Notes") pursuant to a Subordinated
Note Indenture dated as of __________, 199_, by and between
the Company and ____________________, as trustee, as
supplemented by the First Supplemental Indenture dated as of
__________ __, 199_ (collectively, the "Indenture"); and (v)
its issuance of a guarantee (the "Guarantee") of the
Preferred Securities pursuant to a Preferred Securities
Guarantee Agreement dated as of __________, 199_ (the
"Guarantee Agreement") between the Company and
___________________, as trustee. The Preferred Securities
are being sold to you today pursuant to the terms of an
Underwriting Agreement dated __________, 199_ (the
"Underwriting Agreement"), among the Company, the Trust and
the underwriters named in Schedule I thereto (the
"Underwriters") for whom you are acting as Representative.
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos.
333-19271, 333-19271-01 and 333-19271-02) pertaining to the
Preferred Securities (the "Registration Statement") filed
under the Securities Act of 1933, as amended (the "Act"),
and the prospectus dated _______ ___, 199_ as supplemented
by a final prospectus supplement dated __________, 199_ (the
"Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of
the Company for the fiscal year ended December 31, 1995, 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").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the
originals of such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion, relying as to matters of Florida and Mississippi
law upon the opinion dated the date hereof rendered to you
by Beggs & Lane, relying as to matters of New York law upon
the opinion dated the date hereof rendered to you by Dewey
Ballantine and relying as to matters of Delaware law upon
the opinion dated the date hereof rendered to you by
Richards, Layton & Finger, that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maine, is duly qualified to carry on
its business as a foreign corporation 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, to own and operate the properties used by it
in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the
Company of the Underwriting Agreement have been duly
2
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents or other authorizations or
approvals of the Florida Public Service Commission and the
Commission legally required for the issuance and delivery of
the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are
sufficient for the issuance and delivery of the Notes and
the Guarantee and the issuance and sale of the Preferred
Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized, executed
and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed
by the Company and, when authenticated by the Debt Trustee
in the manner provided in the Indenture and delivered
against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law); and the Notes conform as to legal matters in all
3
material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and constitutes a
valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its
terms, subject to the qualifications that the enforceability
of the Company's obligations under the Guarantee Agreement
may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the
Guarantee Agreement conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
7. Each of the Indenture, the Guarantee Agreement and
the Trust Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
8. Neither the Company nor the Trust is and, after
giving effect to the offering and sale of the Preferred
Securities, will be an "investment company" or a company
"controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
9. The Preferred Securities have been duly authorized
by the Trust Agreement and (subject to the terms of the
Trust Agreement), when delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust; and the
Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6, and 9 above. In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with other
counsel for the Company, with representatives of Arthur
Andersen LLP and with your counsel. Based upon our
examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of
4
the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents and our
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Final Supplemented Prospectus,
as of _______________, complied as to form in all material
respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to
the financial statements or other financial or statistical
data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents.
We are members of the State Bar of Georgia and we
do not express any opinion herein concerning any law other
than the law of the State of Georgia and the federal law of
the United States and, to the extent set forth herein, the
laws of the States of Maine, Mississippi, Delaware and New
York.
This opinion is rendered to you in connection with
the above-described transaction. This opinion may not be
relied upon by you for any other purpose, or relied upon by
or furnished to any other person without our prior written
consent.
Yours very truly,
TROUTMAN SANDERS LLP
5
Schedule IV
[Letterhead of RICHARDS, LAYTON & FINGER]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Re: Gulf Power Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Gulf
Power Company, a Maine corporation (the "Company"), and Gulf
Power Capital Trust I, a Delaware business trust (the
"Trust"), in connection with the matters set forth herein.
This opinion is being furnished to you pursuant to Section
5(c)(3) of the Underwriting Agreement, dated __________,
199_ (the "Underwriting Agreement"), among the Company, the
Trust, Goldman, Sachs & Co. and the other Underwriters
listed in Schedule I thereto.
For purposes of giving the opinions hereinafter
set forth, our examination of documents has been limited to
the examination of originals or copies of the following:
(a) The Certificate of Trust of the Trust, dated
__________, 199_ (the "Certificate"), as filed in the office
of the Secretary of State of the State of Delaware (the
"Secretary of State") on _________, 199_;
(b) The Trust Agreement of the Trust, dated as of
_________, 199_, among the Company and the trustees of the
Trust named therein;
(c) The Amended and Restated Trust Agreement,
dated as of _________, 199_ (including Exhibits C and E),
among the Company, the trustees of the Trust named therein,
and the holders, from time to time, of the undivided
beneficial interests in the assets of the Trust (the "Trust
Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated __________ __, 199_
(the "Prospectus"), as supplemented by the Prospectus
Supplement dated __________, 199_ (the "Prospectus
Supplement"), relating to the __% Trust Cumulative Quarterly
Income Preferred Securities of the Trust representing
preferred undivided beneficial interests in the assets of
the Trust (each, a "Preferred Security" and collectively,
the "Preferred Securities"); and
(f) A Certificate of Good Standing for the Trust,
dated ___________ __, 199_, obtained from the Secretary of
State.
Initially capitalized terms used herein and not
otherwise defined are used as defined in the Trust
Agreement.
For purposes of this opinion, we have not reviewed
any documents other than the documents listed in paragraphs
(a) through (f) above. In particular, we have not reviewed
any document (other than the documents listed in paragraphs
(a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us.
We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have
relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters
recited or assumed herein, all of which we have assumed to
be true, complete and accurate in all material respects.
With respect to all documents examined by us, we
have assumed (i) the authenticity of all documents submitted
to us as authentic originals, (ii) the conformity with the
originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i)
the Trust Agreement constitutes the entire agreement among
the parties thereto with respect to the subject matter
thereof, including with respect to the creation, operation
and termination of the Trust, and the Trust Agreement and
the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in
paragraph 1 below, the due organization or due formation or
due creation, as the case may be, and valid existence in
good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its
organization or formation or creation, (iii) the legal
capacity of natural persons who are parties to the documents
examined by us, (iv) except to the extent provided in
paragraph 2 below, the power and authority of each of the
parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such
documents, (v) except to the extent provided in paragraph 4
below, the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be
issued by the Trust (collectively, the "Trust Security
Holders") of a Trust Securities Certificate for such Trust
Security and the payment for the Trust Security acquired by
it, in accordance with the Trust Agreement, the Prospectus
and the Prospectus Supplement, and (vii) the issuance and
sale of the Trust Securities to the Trust Security Holders
in accordance with the Trust Agreement, the Prospectus and
the Prospectus Supplement. We have not participated in the
preparation of the Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State
of Delaware (excluding the securities laws of the State of
Delaware), and we have not considered and express no opinion
on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and
rules, regulations and orders thereunder which are currently
in effect.
Based upon the foregoing, and upon our examination
of such questions of law and statutes of the State of
Delaware as we have considered necessary or appropriate, and
subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, 12 Del. C. 3801, et seq.
(the "Business Trust Act"), and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business
trust have been made.
2. Under the Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority to
(i) own property and conduct its business, all as described
in the Prospectus and the Prospectus Supplement, (ii)
execute and deliver, and to perform its obligations under,
the Underwriting Agreement, (iii) issue and perform its
obligations under the Trust Securities, and (iv) perform its
obligations under the Trust Agreement.
3. The Trust Securities have been duly
authorized by the Trust Agreement and will be duly and
validly issued undivided beneficial interests in the assets
of the Trust. Subject to the qualifications set forth in
paragraph 6 below, the Preferred Securities are fully paid
and nonassessable undivided beneficial interests in the
assets of the Trust. Under the Business Trust Act and the
Trust Agreement, the Trust Securities are not subject to any
preemptive or other similar rights.
4. Under the Business Trust Act and the Trust
Agreement, the Underwriting Agreement has been duly
authorized by all necessary trust action on the part of the
Trust.
5. No authorization, approval, consent or order
of any Delaware court or Delaware governmental authority or
Delaware agency is required to be obtained by the Trust
solely as a result of the issuance and sale of the Preferred
Securities.
6. The Persons to whom Preferred Securities are
to be issued by the Trust (collectively, the "Preferred
Security Holders"), as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware. We note that the Preferred Security Holders may
be obligated, pursuant to the Trust Agreement, to (i)
provide indemnity and/or security in connection with and pay
taxes or governmental charges arising from transfers or
exchanges of Preferred Securities Certificates and the
issuance of replacement Preferred Securities Certificates
and (ii) provide security or indemnity in connection with
requests of or directions to the Property Trustee to
exercise its rights and powers under the Trust Agreement.
7. The Trust Agreement constitutes a valid and
binding obligation of the Company, and is enforceable
against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the
Trust Securities, the execution, delivery and performance by
the Trust of the Underwriting Agreement, the consummation by
the Trust of the transactions contemplated by the
Underwriting Agreement and the Trust Agreement and
compliance by the Trust with its obligations thereunder do
not violate (i) any of the provisions of the Certificate or
the Trust Agreement or (ii) any applicable Delaware law or
Delaware administrative regulation.
9. We have reviewed the statements in the
Prospectus under the caption "The Trusts" and the statements
in the Prospectus Supplement under the caption "Gulf Power
Capital Trust I" and, insofar as they contain statements of
Delaware law, such statements are fairly presented.
The opinion expressed in paragraph 7 above is
subject as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting
the rights and remedies of creditors generally, (ii)
principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the
effect of applicable public policy on the enforceability of
provisions relating to indemnification. In addition, in
connection with the opinion expressed in paragraph 7 above,
to the extent that Section 10.05 of the Trust Agreement
provides that the Trust Agreement is governed by New York
law, we express no opinion concerning Section 10.05 of the
Trust Agreement or the effect of Section 10.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of
Delaware law upon this opinion in connection with the
Underwriting Agreement. We consent to the law firms of
Beggs & Lane, Troutman Sanders LLP and Dewey Ballantine
relying as to matters of Delaware law upon this opinion in
connection with opinions to be rendered by them pursuant to
the Underwriting Agreement. Except as stated above, without
our prior written consent, this opinion may not be furnished
or quoted to, or relied upon by, any other Person for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
Schedule V
[Letterhead of Richards, Layton & Finger]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Re: Gulf Power Capital Trust I
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank
Delaware, a Delaware banking corporation ("CMBD"), in
connection with the formation of Gulf Power Capital Trust I,
a business trust existing under the laws of the State of
Delaware (the "Trust") pursuant to the Trust Agreement,
dated __________, 199_, by and between CMBD, not in its
individual capacity but solely as trustee (the "Trustee"),
and Gulf Power Company (the "Company"), as amended and
restated pursuant to an Amended and Restated Trust Agreement
dated as of __________ __, 199_, among the Company, the
Trustee, the other trustees named therein and the holders
from time to time of the undivided beneficial interests in
the assets of the Trust (collectively, the "Trust
Agreement"). This opinion is being delivered to you
pursuant to Section 5(c)(4) of the Underwriting Agreement,
dated ___________ __, 199_ (the "Underwriting Agreement"),
among Goldman, Sachs & Co., the several Underwriters named
in Schedule I thereto, Gulf Power Company and the Trust,
pursuant to which the $___,___,___ ___% Cumulative Quarterly
Income Preferred Securities of the Trust will be sold. All
capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the
Underwriting Agreement.
We have examined an original or a copy of the
Trust Agreement. We have also examined originals or copies
of such other documents and such corporate records,
certificates and other statements of governmental officials
and corporate officers and other representatives of the
corporations or entities referred to herein as we have
deemed necessary or appropriate for the purposes of the
opinions expressed herein. Moreover, as to certain facts
material to the opinions expressed herein, we have relied
upon the representations and warranties contained in the
documents referred to in this paragraph.
Based upon the foregoing and upon an examination
of such questions of law as we have deemed necessary or
appropriate, and subject to the assumptions, exceptions and
qualifications set forth below, we advise you that, in our
opinion:
1. CMBD is duly incorporated, validly existing
in good standing as a banking corporation under the laws of
the State of Delaware and has the power and authority to
execute, deliver and perform its obligations under the Trust
Agreement.
2. The Trust Agreement has been duly authorized,
executed and delivered by CMBD and constitutes a legal,
valid and binding obligation of CMBD, enforceable against
CMBD, in accordance with its terms.
3. The execution and delivery of, and
performance of the terms of, the Trust Agreement by CMBD,
does not conflict with or constitute a breach of, or default
under, the charter or by-laws of CMBD.
4. No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body having jurisdiction in the
premises is required under Delaware law for the execution,
delivery or performance by CMBD of the Trust Agreement.
The foregoing opinions are subject to the
following exceptions, qualifications and assumptions:
(A) We are admitted to practice in the State of
Delaware and we do not hold ourselves out as being experts
on the law of any other jurisdiction. The foregoing
opinions are limited to the laws of the State of Delaware
and the federal laws of the United States of America
governing the banking and trust powers of CMBD (except that
we express no opinion with respect to (i) state securities
or blue sky laws and (ii) federal securities laws,
including, without limitation, the Securities Act of 1933,
as amended, the Securities Exchange Act of 1934, as amended,
the Trust Indenture Act of 1939, as amended, and the
Investment Company Act of 1940, as amended), and we have not
considered and express no opinion on the laws, rules and
regulations of any other jurisdiction.
(B) The foregoing opinions regarding
enforceability are subject to (i) applicable bankruptcy,
insolvency, moratorium, receivership, reorganization,
fraudulent transfer or conveyance and similar laws relating
to and affecting the rights and remedies of creditors
generally, (ii) principles of equity (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of federal or state securities laws on
the enforceability of provisions relating to indemnification
or contribution.
(C) We have assumed the due authorization,
execution and delivery by each of the parties thereto, other
than CMBD, of the Trust Agreement, and that each of such
parties has the full power, authority and legal right to
execute, deliver and perform such document.
(D) We have assumed that all signatures (other
than those of CMBD) on documents examined by us are genuine,
that all documents submitted to us as originals are
authentic, and that all documents submitted to us as copies
or specimens conform with the originals, which facts we have
not independently verified.
This opinion may be relied upon by you in
connection with the matters set forth herein, and without
our prior written consent, may not be furnished or quoted
to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
Schedule VI
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
c/o Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Capital Trust I
_.__% Trust Cumulative Quarterly Income Preferred Securities
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank
(the "Bank") in connection with (a) the Subordinated Note
Indenture, dated as of ________ ______, 199_ (the "Original
Indenture"), between Gulf Power Company (the "Company") and
the Bank, as Trustee, (b) the First Supplemental Indenture
dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the
Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of __________ ______, 199_ (the
"Guarantee Agreement"), between the Company, as Guarantor
and the Bank, as Trustee, and (d) the Amended and Restated
Trust Agreement, dated as of _________ ______, 199_ (the
"Trust Agreement") among the Company, the Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and _________________ and _______________, as Administrative
Trustees.
In that connection, we have examined originals, or
copies certified or otherwise identified to our satisfac-
tion, of such documents, records and other instruments as we
have deemed necessary or appropriate for the purpose of this
opinion, including copies of the Indenture, the Trust
Agreement, the Guarantee Agreement and certain resolutions
adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power
and authority to execute, deliver and perform its
duties under the Indenture, the Trust Agreement and the
Guarantee Agreement, has duly executed and delivered
the Indenture, the Trust Agreement and the Guarantee
Agreement, and, insofar as the laws governing the trust
powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the
other parties thereto, each of the Indenture, the Trust
Agreement and the Guarantee Agreement constitutes a
legal, valid and binding agreement of the Bank,
enforceable against the Bank in accordance with its
terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or
other laws affecting creditors' rights generally from
time to time in effect and subject, as to
enforceability, to general principles of equity,
regardless of whether such enforceability is considered
in a proceeding in equity or at law).
iii) the execution, delivery and performance
by the Bank of the Indenture, the Trust Agreement and
the Guarantee Agreement do not conflict with or
constitute a breach of the charter or bylaws of the
Bank.
iv) no approval, authorization or other
action by, or filing with, any governmental authority
of the United States of America or the State of New
York having jurisdiction over the trust powers of the
Bank is required in connection with the execution and
delivery by the Bank of the Indenture, the Trust
Agreement or the Guarantee Agreement or the performance
by the Bank of its duties thereunder, except such as
have been obtained, taken or made.
We are admitted to practice in the State of New
York, and we express no opinion as to matters governed by
any laws other than the laws of the State of New York and
the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit.
This opinion is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule VII
[Letterhead of DEWEY BALLANTINE]
__________ __, 199_
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
GULF POWER CAPITAL TRUST I
_.__% Trust Cumulative Quarterly Income Preferred Securities
Ladies and Gentlemen:
In connection with (i) the formation by Gulf Power
Company (the "Company") of Gulf Power Capital Trust I (the
"Trust"), a Delaware statutory business trust, pursuant to
the amended and restated trust agreement dated __________,
199_ among the Company and the trustees named therein (the
"Trust Agreement"); (ii) the Trust's issuance and sale of
Cumulative Quarterly Income Preferred Securities evidencing
approximately a 97% undivided interest in the Trust (the
"Preferred Securities"); (iii) the Trust's issuance and sale
of Common Securities evidencing approximately a 3% undivided
interest in the Trust; (iv) the Company's issuance and sale
to the Trust of $___________ of its Series A ___% Junior
Subordinated Notes (the "Notes") pursuant to a Subordinated
Note Indenture dated as of __________, 199_, by and between
the Company and ____________, as trustee, as supplemented by
the First Supplemental Indenture dated as of __________ __,
199_ (collectively, the "Indenture"); and (v) the Company's
issuance of a guarantee (the "Guarantee") of the Preferred
Securities pursuant to a Preferred Securities Guarantee
Agreement dated as of __________, 199_ (the "Guarantee
Agreement") between the Company and ____________________, as
trustee, we have acted as counsel to you and the other
underwriters named in the Schedule I (the "Underwriters") of
the Underwriting Agreement dated __________ __, 199_, among
the Company, the Trust and the Underwriters for whom you are
acting as Representative (the "Underwriting Agreement").
This opinion is being delivered to you as Representative
pursuant to Section 5(c)(6) thereof.
All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Underwriting
Agreement.
In rendering the opinions expressed below, we have
examined the registration statement on Form S-3 (Nos.
333-19271, 333-19271-01 and 333-19271-02) pertaining to the
Preferred Securities (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"),
and the prospectus dated , as
supplemented by a final supplemental prospectus dated
, 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, 1995, 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").
In addition, we have examined, and have relied as to
matters of fact upon, the documents delivered to you at the
closing (except the certificates representing the Preferred
Securities and the Notes, of which we have examined
specimens), and we have made such other and further
investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we
have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as
certified or photostatic copies, and the authenticity of the
originals of such latter documents.
The Trust Agreement, Indenture, Guarantee Agreement and
the Underwriting Agreement are herein referred to as the
"Agreements".
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion, relying as aforesaid and as to all matters covered
hereby which are governed by or dependent upon the laws of
the States of Florida and Mississippi upon the opinion of
Beggs & Lane dated the date hereof and addressed to you, as
to all matters covered hereby which are governed by or
dependent upon the laws of the State of Georgia upon the
opinion of Troutman Sanders LLP dated the date hereof and
addressed to you, and as to all matters covered hereby which
are governed by or dependent upon the laws of the State of
Delaware upon the opinion of Richards, Layton & Finger,
dated the date hereof and addressed to you and a form of
which is attached as Schedule IV to the Underwriting
Agreement, that:
1. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Maine, is duly qualified to carry on
its business as a foreign corporation 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 and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by
the Company of the Underwriting Agreement have been duly
authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered
by the Company.
3. All orders, consents, or other authorizations
or approvals of the Florida Public Service Commission and
the Commission legally required for the issuance and
delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities have been obtained; such
orders are sufficient for the issuance and delivery of the
Notes and the Guarantee and the issuance and sale of the
Preferred Securities; the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities conform in all material respects with the terms
of such orders; and no other order, consent or other
authorization or approval of any Florida or United States
governmental body (other than in connection or in compliance
with the provisions of the securities or "blue sky" laws of
any jurisdiction, as to which we express no opinion) is
legally required for the issuance and delivery of the Notes
and the Guarantee and the issuance and sale of the Preferred
Securities in accordance with the terms of the Underwriting
Agreement.
4. The Indenture has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt
Trustee, constitutes a valid and legally binding instrument
of the Company, enforceable against the Company in
accordance with its terms, subject to the qualifications
that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and
executed by the Company and, when authenticated by the Debt
Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid
and binding obligations of the Company enforceable against
the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's
obligations under the Notes may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally
and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity
or at law); the Notes conform as to legal matters in all
material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Guarantee Agreement has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the
enforceability of the Company's obligations under the
Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally or
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and the Guarantee Agreement conforms as to legal
matters in all material respects to the description thereof
in the Final Supplemented Prospectus.
7. Each of the Indenture, the Guarantee
Agreement and the Trust Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly
authorized by the Trust Agreement and (subject to the terms
of the Trust Agreement), when delivered to and paid for the
Underwriters pursuant to the Underwriting Agreement, will be
validly issued, fully paid and nonassessable beneficial
interests in the assets of the Trust; and the Preferred
Securities conform as to legal matters in all material
respects to the description thereof in the Final
Supplemented Prospectus.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set
forth in paragraphs 4, 5, 6 and 8 above. In the course of
the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with
certain officers and employees of the Company, with
representatives of Arthur Andersen LLP and with counsel to
the Company. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in
connection with the preparation of the Registration
Statement and the Final Supplemented Prospectus and our
participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of
its effective date, and the Final Supplemented Prospectus,
as of ___________, complied as to form in all material
respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of
filing with the Commission, complied as to form in all
material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express
no opinion as to the financial statements or other financial
or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented
Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that
the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to
the financial statements or other financial or statistical
data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents.
We are members of the State Bar of New York and we
do not express any opinion herein concerning any law other
than the law of the State of New York and the federal law of
the United States, and to the extent set forth herein, the
laws of the States of Delaware, Maine, Mississippi, Georgia
and Florida.
This opinion is rendered solely to you in
connection with the above matter. This opinion may not be
relied upon by you for any other purpose or relied upon by
or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP
may rely on this opinion in giving their opinions pursuant
to Section 5(c) of the Underwriting Agreement, insofar as
such opinions relate to matters of New York law.
Very truly yours,
DEWEY BALLANTINE