Exhibit 1
$20,000,000 7.50% Series B Junior Subordinated Notes
due June 30, 2037
GULF POWER COMPANY
UNDERWRITING AGREEMENT
July 28, 1997
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representative (in such capacity,
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $20,000,000 aggregate principal amount of the Series B 7.50%
Junior Subordinated Notes due June 30, 2037 (the "Junior Subordinated Notes")
set forth in Schedule I.
The Company understands that the Underwriters propose to make
a public offering of the Junior Subordinated Notes as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The Junior
Subordinated Notes will be issued pursuant to an indenture, as heretofore
supplemented, dated as of January 1, 1997 (the "Base Indenture"), between the
Company and The Chase Manhattan Bank, as trustee (the "Debt Trustee"), and a
second supplemental indenture to the Base Indenture, dated as of August 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
Company represents and warrants 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 Junior Subordinated Notes and certain
other securities has been prepared and filed in accordance with the
provisions of the Securities Act of 1933, as amended (the "1933 Act"),
with the Securities and Exchange Commission (the "Commission"); such
registration statement, 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 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 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
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preliminary prospectus supplement dated July 25, 1997 relating to the
Junior Subordinated Notes, 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
Junior Subordinated Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance
with Section 3(f) hereof, including any documents incorporated by
reference therein as of the date of such filing, being hereinafter
called the "Final Supplemented Prospectus").
(b) The documents incorporated by reference in the
Registration Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the
Commission thereunder, and as of such time of filing, when read
together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply
in all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder and, when
read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the Company makes no warranty or representation to any Underwriter with
respect to: (A) any statements or omissions made in reliance upon and
in conformity with information furnished in writing to 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 Supplemented Prospectus, at
the time of filing thereof, complied in all material
respects with the applicable provisions of the 1933 Act
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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 Junior Subordinated Notes, 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 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 the Company makes no warranties
or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) (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 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
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change in the business, properties or financial
condition of the Company.
(g) The Company is a corporation duly organized and existing
under the laws of the State of Maine, is duly qualified to carry on its
business as a foreign corporation under the laws of the States of
Florida, Georgia and Mississippi, and has due corporate authority to
carry on the public utility business in which it is engaged and to own
and operate the properties used by it in such business, to enter into
and perform its obligations under this Agreement and the Indenture and
to issue and sell the Junior Subordinated Notes to the Underwriters.
(h) This Agreement has been duly authorized,
executed and delivered by the Company.
(i) 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 (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Enforceability
Exceptions"); the Indenture will conform in all material respects to
all statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(j) 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 Final
Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions, will be in the
form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to
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all statements relating thereto in the Final
Supplemented Prospectus.
(k) The Junior Subordinated Notes are subordinated and junior
in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of the Company.
(l) Neither the Company nor any of the Company's subsidiaries
is and, after giving effect to the offering and sale of the Junior
Subordinated Notes, 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").
(m) The execution, delivery and performance by the Company of
this Agreement, the Indenture and the Junior Subordinated Notes and the
consummation by the Company of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder
and thereunder shall have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the charter or bylaws of the Company, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to which
any of its properties may be subject (except for conflicts, breaches or
defaults which would not, individually or in the aggregate, be
materially adverse to the Company or materially adverse to the
transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
or any regulatory body or administrative agency or other governmental
body having jurisdiction over the Company, or any of its properties.
(n) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Junior Subordinated Notes or
the transactions by the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility
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Holding Company Act of 1935, as amended (the "1935 Act"); (C) the
qualification of the Indenture under the 1939 Act; (D) the approval of
the Florida Public Service Commission (the "Florida Commission"); and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws.
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 Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
principal amount of Junior Subordinated Notes set forth in Schedule I opposite
the name of such Underwriter (plus any additional amount of Junior Subordinated
Notes that such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof) at a price equal to 96.85% of the principal
amount thereof; except that such price will be increased to 98% of the principal
amount of the Junior Subordinated Notes sold to certain institutions.
(b) Payment for and delivery of certificates for the Junior
Subordinated Notes 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 August 1, 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 and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer in federal funds at the Closing Date against delivery
of the Junior Subordinated Notes to the Representative for the respective
accounts of the Underwriters. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Junior Subordinated Notes
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 principal amount of the Junior Subordinated Notes to be purchased
by any Underwriter whose payment has not been received by the Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The delivery of the Junior Subordinated Notes shall be made in
fully registered form, registered in the name of CEDE & CO., to the offices of
The Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
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SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants with each Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver
to the Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the 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 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 Company 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 Junior Subordinated Notes in such quantities as the Underwriters
may from time to time reasonably request. If, during the period (not
exceeding nine months) when the delivery of a prospectus shall be
required by law in connection with the sale of any Junior Subordinated
Notes 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
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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 Junior Subordinated Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the 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
Junior Subordinated Notes after the expiration of the period specified
in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the Company
will continue to prepare and file with the Commission on a timely basis
all documents or amendments required under the 1934 Act and the rules
and regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies thereof
prior to such filing to the Representative and Dewey Ballantine.
(c) The Company will endeavor, in cooperation with the
Underwriters, to qualify 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 the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with
such qualification deemed by the Company to be unduly burdensome.
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(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) During a period of 15 days from the date of this
Agreement, the Company will not, without the Representative's prior
written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Junior
Subordinated Notes or any security convertible into or exchangeable
into or exercisable for the Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes
(except for the Junior Subordinated Notes issued pursuant to this
Agreement).
(f) As soon as practicable after the date of this Agreement,
and in any event within the time prescribed by Rule 424 under the 1933
Act, to file the Final Supplemented Prospectus with the Commission and
to advise the Representative of such filing and to confirm such advice
in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Junior
Subordinated Notes to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of 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
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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)
any fees payable in connection with the rating of the Junior Subordinated Notes,
(x) the cost and charges of any transfer agent or registrar, and (xi) the cost
of qualifying the Junior Subordinated Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Junior Subordinated Notes 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 Junior Subordinated Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date. If
filing of the 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).
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(c) On the Closing Date the Representative shall
have received:
(1) The opinion, dated the Closing Date, of Beggs &
Lane, counsel for the Company, substantially in the form attached
hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman
Sanders LLP, counsel for the Company, substantially in the form
attached hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath,
Swaine & Moore, counsel to the Debt Trustee, substantially in the form
attached hereto as Schedule III.
(4) The favorable opinion, dated as of the Closing
Date, of Dewey Ballantine, counsel for the Underwriters, substantially
in the form attached hereto as Schedule IV.
(5) At the Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Final
Supplemented Prospectus, any material adverse change in the business,
properties or financial condition of the Company, whether or not
arising in the ordinary course of business, and the Representative
shall have received a certificate of the President or any Vice
President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied on or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the Commission.
(6) On the 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
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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 Final
Supplemented 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 Final Supplemented 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 Final Supplemented 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 Final
Supplemented Prospectus for which such amounts are available at the
time this Agreement becomes effective; (v) reading the unaudited
financial statements from which the amounts and ratios described in
(iv) were derived and agreeing the amounts therein to the Company's
accounting records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
regarding whether (a) the unaudited amounts and ratios referred to in
(iv) above and the unaudited financial statements referred to in (v)
above are stated on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated by
reference in the Final Supplemented 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 Final Supplemented Prospectus, except in each case
for changes or decreases which (I) the Final Supplemented
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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 Final Supplemented 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.
(7) 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
issuance and sale of the Junior Subordinated Notes as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Junior Subordinated Notes as herein contemplated shall be
satisfactory in form and
14
substance to the Representative and Dewey Ballantine,
counsel for the Underwriters.
(8) 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 1934 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
Junior Subordinated Notes.
(9) The Company shall have performed its obligations
when and as provided under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Sections 4, 7
and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF
THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
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 Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
1934 Act or otherwise, and to reimburse 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
15
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 Company shall furnish to the
Underwriters any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are incorporated
therein by reference, in any Preliminary Prospectus, the Registration Statement,
the Prospectus, 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 Company shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Junior Subordinated Notes to
any person if a copy of the Preliminary Prospectus, the Prospectus, the
Preliminary Supplemented Prospectus, or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus, 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 Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person
16
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
Company of the commencement thereof as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof, at its own expense. In
case the Company elects to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless the employment
of such counsel has been authorized in writing by the Company in connection with
defending such action. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any liability
or responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its officers
who have signed the Registration Statement and each other Underwriter and each
person, if any, who controls the Company 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
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus, 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 Company by, or through the Representative on behalf of, such
Underwriter for use therein.
17
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Junior Subordinated Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the Junior
Subordinated Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representative pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters, 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 Junior Subordinated
Notes and, upon such reimbursement, the Company shall be absolved from any
further liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail
on the Closing Date to purchase the Junior Subordinated
Notes that it or they are obligated to purchase under this
18
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 principal amount of Defaulted Securities
does not exceed 10% of the Junior Subordinated Notes, 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 principal amount of Defaulted Securities
exceeds 10% of the Junior Subordinated Notes, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 3333 Peachtree Road,
N.E., South Tower, Atlanta, Georgia 30326, Attention: Syndicate Department;
notices to the Company shall be delivered to 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
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
19
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Junior Subordinated Notes 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.
20
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: WAYNE BOSTON
Title: ASSISTANT SECRETARY
CONFIRMED AND ACCEPTED,
as of the date first above written
THE ROBINSON-HUMPHREY COMPANY, INC.
By: C. MACLAINE KENAN
Title: SENIOR VICE PRESIDENT
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of
Series B Junior
Subordinated Notes
The Robinson-Humphrey Company, Inc. $ 5,000,000
J.C. Bradford & Co. 5,000,000
Edward D. Jones & Co., L.P. 5,000,000
Interstate/Johnson Lane Corporation 1,000,000
Legg Mason Wood Walker, Incorporated 1,000,000
Morgan Keegan & Company, Inc. 1,000,000
Raymond James & Associates, Inc. 1,000,000
Sterne, Agee & Leach, Inc. 1,000,000
----------
TOTAL $20,000,000
Schedule II-A
[Letterhead of BEGGS & LANE]
___________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
Series B _.__% JUNIOR SUBORDINATED NOTES DUE JUNE 30, 2037
Dear Sirs:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance of $20,000,000
aggregate principal amount of its Series B ___% Junior Subordinated Notes due
June 30, 2037 (the "Notes") pursuant to a Subordinated Note Indenture dated as
of January 1, 1997, by and between the Company and The Chase Manhattan Bank, as
trustee, as heretofore supplemented and amended and as further supplemented by
the Second Supplemental Indenture dated as of __________ __, 199_ (collectively,
the "Indenture"); and (ii) the purchase by you of the Notes pursuant to the
terms of an Underwriting Agreement dated July __, 1997, among the Company 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 Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
January 10, 1997 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, 1996, 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 Notes, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture 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
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.
3. All orders, consents, or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes and conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
2
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 to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
7. The Company is not and, after giving effect to the offering and sale
of the Notes, will not be an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
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
3
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 the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the 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 forth herein, the laws of the States of Maine, Georgia 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
4
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
5
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
SERIES B _.__% JUNIOR SUBORDINATED NOTES DUE JUNE 30, 2037
Dear Sirs:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $20,000,000 aggregate principal
amount of its Series B ___% Junior Subordinated Notes due June 30, 2037 (the
"Notes") pursuant to a Subordinated Note Indenture dated as of January 1, 1997,
by and between the Company and The Chase Manhattan Bank, as trustee, as
heretofore supplemented and as further supplemented by the Second Supplemental
Indenture dated as of __________ __, 199_ (collectively, the "Indenture"); and
(ii) the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated July __, 1997, among the Company 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)(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 Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
January 10, 1997 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, 1996, 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 Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of
Florida and Mississippi law upon the opinion dated the date hereof rendered to
you by Beggs & Lane and relying as to matters of New York law upon the opinion
dated the date hereof rendered to you by Dewey Ballantine, 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 authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
2
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 to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of 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 the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the
3
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 the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the 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, Florida 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
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Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Company
Series B _.__% Junior Subordinated Notes due June 30, 2037
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 January 1, 1997
(the "Original Indenture"), between Gulf Power Company (the "Company") and the
Bank, as Trustee, as heretofore supplemented and amended, (b) the Second
Supplemental Indenture dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the
Indenture, has duly executed and delivered the Indenture, and, insofar
as the laws governing the trust powers of the Bank are concerned and
assuming due authorization, execution and delivery thereof by the
Company, the Indenture constitutes a legal, valid and binding agreement
of the Bank, enforceable against the Bank in accordance with its
terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect and 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 does 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 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
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Schedule IV
[Letterhead of DEWEY BALLANTINE]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
Series B _.__% Junior Subordinated Notes, due ____
Ladies and Gentlemen:
We have represented you in connection with (i) the Company's
issuance of $20,000,000 of its Series B ___% Junior Subordinated Notes (the
"Notes") pursuant to a Subordinated Note Indenture dated as of January 1, 1997,
by and between the Company and The Chase Manhattan Bank, as trustee, as
heretofore supplemented and amended and as further supplemented by the Second
Supplemental Indenture dated as of __________ __, 199_ (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated July __, 1997, among the Company 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)(4) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333-19271, 333-19271-01 and
333-19271-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated January 10, 1997, as supplemented by a final prospectus supplement 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, 1996, 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 Notes, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as
the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Florida and Mississippi upon the opinion of Beggs & Lane
dated the date hereof and addressed to you and as to all matters covered hereby
which are governed by or dependent upon the laws of the State of Georgia upon
the opinion of Troutman Sanders LLP dated the date hereof and addressed to you,
that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation 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 sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other
2
authorization or approval of any Florida or United States governmental body
(other than in connection or in compliance with the provisions of the securities
or "blue sky" laws of any jurisdiction, as to which we express no opinion) is
legally required for the issuance and sale of the Notes in accordance with the
terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the 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 to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives
3
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 the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the 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 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
4
to Section 5(c) of the Underwriting Agreement, insofar as such opinions relate
to matters of New York law, and Troutman Sanders LLP may rely on this opinion in
giving its opinion pursuant to Sections 102, 302 and 904 of the Indenture,
insofar as such opinion relates to matters of New York law.
Very truly yours,
DEWEY BALLANTINE
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