Exhibit 1.1
due August 15, 2004
GULF POWER COMPANY
UNDERWRITING AGREEMENT
August 17, 1999
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
as Representative of the Underwriters
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with the Underwriters named in Schedule
I hereto (the "Underwriters", which term shall include any underwriter
substituted as hereinafter provided in Section 10 hereof) for whom you are
acting as representative (the "Representative"), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally but not jointly,
of $50,000,000 principal amount of the Series B 7.05% Senior Notes due August
15, 2004 (the "Senior Notes") as set forth in Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998, as heretofore
supplemented (the "Base Indenture"), between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), as supplemented by a second supplemental
indenture to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos.
333-42033, 333-42033-01 and 333-42033-02), in respect of the Senior Notes
and certain other securities has been prepared and filed in accordance with
the provisions of the Securities Act of 1933, as amended (the "1933 Act"),
with the Securities and Exchange Commission (the "Commission"); such
registration statement, as amended, and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in such form
(except that copies of the registration statement, as amended, and any
post-effective amendment delivered to the Underwriters need not include
exhibits but shall include all documents incorporated by reference
therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter called
a "Preliminary Prospectus"); such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called the
"Registration Statement"; the prospectus relating to the Senior Notes, in
the form in which it was included in the Registration Statement at the time
it became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the 1934
Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(f) hereof, including any documents incorporated by reference
therein as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration
Statement or Prospectus, when they were filed with the Commission, complied
in all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder, and as of such time
of filing, when read together with the Prospectus, none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated
by reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply in
all material respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and, when read
together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the Company makes no warranty
or representation to the Underwriters with respect to: (A) any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Representative expressly for use
in the Final Supplemented Prospectus; or (B) any information set forth in
the Final Supplemented Prospectus under the caption "Description of the
Series B Senior Notes - Book-Entry Only Issuance -- The Depository Trust
Company."
(c) The Registration Statement and the Prospectus, as of the effective
date of the Registration Statement, complied, 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 did not and will not, (i) as of the applicable effective date as to the
Registration Statement and any amendment thereto and (ii) as of the
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 or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company
by the Representative expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the caption "Description
of the Series B Senior Notes - Book-Entry Only Issuance -- The Depository
Trust Company."
(d) With respect to the Registration Statement, the conditions for use
of Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in the
business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the
laws of the State of Maine, is duly qualified to carry on its business as a
foreign corporation under the laws of the States of Florida, Georgia and
Mississippi, and has due corporate authority to carry on the public utility
business in which it is engaged and to own and operate the properties used
by it in such business, to enter into and perform its obligations under
this Agreement and the Indenture and to issue and sell the Senior Notes to
the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by
the Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company,
and, assuming due authorization, execution and delivery of the Indenture by
the Trustee, the Indenture will, on the Closing Date, constitute a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will
have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes will
have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment therefor
as described in the Final Supplemented Prospectus, will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability Exceptions, will
be in the form contemplated by, and entitled to the benefits of, the
Indenture and will conform in all material respects to all statements
relating thereto in the Final Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by the
Company of the transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder shall have
been duly authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the charter or
bylaws of the Company, and do not and will not conflict with, or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by which it may
be bound or to which any of its properties may be subject (except for
conflicts, breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse to
the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative
agency or other governmental body having jurisdiction over the
Company, or any of its properties.
(k) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Senior Notes or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under the 1933
Act or the rules and regulations thereunder; (B) such as may be
required under the Public Utility Holding Company Act of 1935, as
amended (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 THE UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, the principal
amount of Senior Notes set forth in Schedule I to this
Agreement opposite the name of such Underwriter (plus any
additional amount that such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof)
at a price equal to 99.708% of the principal amount thereof.
(b) Payment for and delivery of certificates for the
Senior Notes shall be made at the offices of Troutman
Sanders LLP, 600 Peachtree Street, N.E., Suite 5200,
Atlanta, Georgia at 10:00 A.M., Atlanta time, on August 24,
1999 (unless postponed in accordance with the provisions of
Section 10) or such other time, place or date as shall be
agreed upon by the Underwriters and the Company (such time
and date of payment and delivery being herein called the
"Closing Date"). Payment shall be made to the Company by
wire transfer in federal funds at the Closing Date against
delivery of the Senior Notes to the Underwriters.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to
the offices of The Depository Trust Company in New York, New
York or its designee, and the Representative shall accept
such delivery.
The certificate(s) for the Senior Notes will be made
available for examination by the Representative not later
than 12:00 Noon, New York time, on the last business day
prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally filed
and of all amendments thereto, heretofore or hereafter made, including any
post-effective amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by reference,
unless specifically requested). As soon as the Company is advised thereof, it
will advise the Representative orally of the issuance of any stop order under
the 1933 Act with respect to the Registration Statement, or the institution of
any proceedings therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such stop order and to
secure the prompt removal thereof, if issued. The Company will deliver to the
Representative sufficient conformed copies of the Registration Statement, the
Prospectus and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for distribution to the
Underwriters and, from time to time, as many copies of the Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably request for the
purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each amendment
and supplement to the Final Supplemented Prospectus relating to the offering of
the Senior Notes in such quantities as the Underwriters may from time to time
reasonably request. If, during the period (not exceeding nine months) when the
delivery of a prospectus shall be required by law in connection with the sale of
any Senior Notes by an Underwriter, any event relating to or affecting the
Company, or of which the Company shall be advised in writing by the
Representative, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it is
delivered, or if for any other reason it shall be necessary during such period
to amend or supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary Prospectus or
Prospectus in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation of purchases
of the Senior Notes and (ii) at its expense, make any such filing or prepare and
furnish to the Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final Supplemented Prospectus
which will supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Final
Supplemented Prospectus is delivered, not misleading or which will effect any
other necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Senior Notes after the expiration
of the period specified in the preceding sentence, the Company, upon the request
of such Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required under the
1934 Act and the rules and regulations thereunder; provided, that the Company
shall not file such documents or amendments without also furnishing copies
thereof prior to such filing to the Representative and Dewey Ballantine LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Representative may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) During a period of 15 days from the date of this Agreement, the Company
will not, without the Representative's prior written consent, directly
or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any Senior Notes or any security convertible
into or exchangeable into or exercisable for the Senior Notes or any
debt securities substantially similar to the Senior Notes (except for
the Senior Notes issued pursuant to this Agreement).
(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
incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing
of the Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificate(s)
for the Senior Notes, (iii) the fees and disbursements of the Company's
counsel and accountants, (iv) the qualification of the Senior Notes under
securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any blue sky survey (such fees and disbursements of counsel
shall not exceed $3,500), (v) the printing and delivery to the Underwriters
of copies of the Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Final Supplemented Prospectus,
and any amendments or supplements thereto, (vi) the printing and delivery
to the Underwriters of copies of any blue sky survey, (vii) the fee of the
National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable,
(viii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture
and the Senior Notes, (ix) any fees payable in connection with the rating
of the Senior Notes, (x) the cost and charges of any transfer agent or
registrar and (xi) the cost of qualifying the Senior Notes with The
Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by it in connection with its
offering of the Senior Notes including fees and disbursements of its counsel,
Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the Company
threatened by, the Commission on such date. If filing of the Final
Supplemented Prospectus, or any supplement thereto, is required pursuant to
Rule 424, the Final Supplemented Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424.
(b) Any required orders of the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall contain no
provision unacceptable to the Underwriters or the Company (but all
provisions of such order or orders heretofore entered, copies of which have
heretofore been delivered to the Representative, are deemed acceptable to
the Underwriters and the Company and all provisions of such order or orders
hereafter entered shall be deemed acceptable to the Underwriters and the
Company unless within 24 hours after receiving a copy of any such order any
party to this Agreement shall give notice to the other parties to the
effect that such order contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of Beggs & Lane, a
Registered Limited Liability Partnership ("Beggs & Lane"), general
counsel for the Company, substantially in the form attached hereto as
Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore, counsel to the Trustee, substantially in the form attached
hereto as Schedule III.
(4) The opinion, dated as of the Closing Date, of Dewey
Ballantine LLP, 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 Underwriters 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 Underwriters 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 Final Supplemented 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 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 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 Prospectus,
except in each case for changes or decreases which (I) the Final
Supplemented Prospectus discloses have occurred or may occur, (II) are
occasioned by the declaration of dividends, (III) are occasioned by
draw-downs under existing pollution control financing arrangements,
(IV) are occasioned by draw-downs and regularly scheduled payments of
capitalized lease obligations, (V) are occasioned by the purchase or
redemption of bonds or stock to satisfy mandatory or optional
redemption provisions relating thereto, 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 the latest calendar quarter 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 Underwriters' purposes.
(7) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as it may reasonably
require for the purpose of enabling it to pass upon the issuance and
sale of the Senior Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Representative and Dewey Ballantine LLP, counsel for the Underwriters.
(8) That no amendment or supplement to the Registration Statement
or the Final Supplemented Prospectus filed subsequent to the date of
this Agreement (including any filing made by the Company pursuant to
Section 13 or 14 of the 1934 Act) shall be unsatisfactory in form to
Dewey Ballantine LLP or shall contain information (other than with
respect to an amendment or supplement relating solely to the activity
of any Underwriter) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of the
Senior 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 Underwriters by notice to the Company at any time
prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in
Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Representative. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, 1934 Act or otherwise, and to
reimburse any such Underwriter and such controlling person or persons,
if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus
or the Final Supplemented Prospectus or, if the Company shall furnish
to the Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final
Supplemented Prospectus as so amended or supplemented, or arise out of
or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by the Representative for use therein and except that
this indemnity with respect to the Preliminary Prospectus, the
Prospectus or the Final Supplemented Prospectus, if the Company shall
have furnished any amendment or supplement thereto, shall not inure to
the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or
actions arising from the sale of the Senior Notes to any person if a
copy of the Preliminary Prospectus, the Prospectus or the Final
Supplemented Prospectus (exclusive of documents incorporated therein
by reference pursuant to Item 12 of Form S-3), as the same may then be
amended or supplemented, shall not have been sent or given by or on
behalf of such Underwriter to such person with or prior to the written
confirmation of the sale involved and the untrue statement or alleged
untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented
Prospectus as supplemented or amended at the time of such
confirmation. Each Underwriter agrees, within ten days after the
receipt by it of notice of the commencement of any action in respect
of which indemnity may be sought by it, or by any person controlling
it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement
thereof but the omission of such Underwriter so to notify the Company
of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person
otherwise than on account of the indemnity agreement contained in this
Section 7. In case any such action shall be brought against an
Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as
above provided, the Company shall be entitled to participate in (and,
to the extent that it shall wish, including the selection of counsel,
to direct) the defense thereof, at its own expense. In case the
Company elects to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to employ its
own counsel, but, in any such case, the fees and expenses of such
counsel shall be at the expense of such Underwriter or such
controlling person unless the employment of such counsel has been
authorized in writing by the Company in connection with defending such
action. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification may be
sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include any statement as to, or an admission
of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise
of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its
officers who have signed the Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20(a) of the 1934 Act to the same extent and
upon the same terms as the indemnity agreement of the Company set
forth in Section 7(a) hereof, but only with respect to alleged untrue
statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented
Prospectus, or such documents as amended or supplemented, in reliance
upon and in conformity with information furnished in writing to the
Company by the Representative for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREE-
MENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Date if (i)
trading in securities on the New York Stock Exchange shall have been
generally suspended, (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 Senior Notes shall have
been materially impaired.
(b) If this Agreement shall be terminated by the
Representative pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters for the reasonable fees and
disbursements of Dewey Ballantine LLP and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Senior Notes and, upon
such reimbursement, the Company shall be absolved from any further liability
hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY AN UNDERWRITER
If an Underwriter shall fail on the Closing Date to purchase
the Senior Notes that it is obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for the non-defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representative shall not have completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the Senior Notes, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters (or in such
other proportions as the Representative may specify), or
(b) if the principal amount of Defaulted Securities exceeds
10% of the Senior Notes, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Bear, Stearns & Co.
Inc., Fixed Income Capital Markets, 245 Park Avenue, 4th Floor, New York,
New York 10167; notices to the Company shall be mailed to One Energy Place,
Pensacola, Florida 32520-0102, 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 than the Underwriters and the Company and their
respective successors and the controlling persons and officers and
directors referred to in Section 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the
Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Senior Notes from any of the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any
one or more of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: _____________________________
Name:____________________________
Title: ____________________________
CONFIRMED AND ACCEPTED,
as of the date first above written
BEAR, STEARNS & CO. INC.
as Representative of the Underwriters named in Schedule I hereto
By:___________________________
Name:________________________
Title:_________________________
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of
Senior Notes
Bear, Stearns & Co. Inc. $25,000,000
Banc One Capital Markets, Inc. $25,000,000
----------
TOTAL $50,000,000
Schedule II-A
[Letterhead of Beggs & Lane]
___________ __, 199_
Bear, Stearns & Co. Inc.
Banc One Capital Markets, Inc.
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
GULF POWER COMPANY
Series B 7.05% Senior Notes
Due August 15, 2004
Ladies and Gentlemen:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance of $______ aggregate
principal amount of its Series B 7.05% Senior Notes due August 15, 2004 (the
"Notes") pursuant to a Senior Note Indenture dated as of January 1, 1998, by and
between the Company and The Chase Manhattan Bank, as trustee (the "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 _______, 1999, among the Company and you (the "Underwriters")
(the "Underwriting Agreement"). This opinion is being delivered to you pursuant
to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-42033, 333-42033-01 and
333-42033-02) pertaining to the Notes (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 __________________, 199_, 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 have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Securities Act of 1933,
as amended; the Securities Exchange Act of 1934, as amended; the Trust Indenture
Act of 1939, as amended and to the applicable rules and regulations of the
Commission under said Acts and in expressing the opinions stated herein, with
respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Georgia law and the federal law of the United States upon the opinion dated the
date hereof rendered to you by Troutman Sanders LLP, and relying as to matters
of New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly 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 conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; 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").
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 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 of the
Company's Annual Report on Form 10-K for the year ended December 31, 1998
(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 and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series B Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
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, to the extent set forth herein, the laws of the
States of Maine, Georgia and New York and the federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinion relates to matters of Florida and Mississippi
law.
Yours very truly,
BEGGS & LANE
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
Bear, Stearns & Co. Inc.
Banc One Capital Markets, Inc.
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
GULF POWER COMPANY
Series B 7.05% SENIOR NOTES
Due August 15, 2004
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $__________ aggregate principal
amount of its Series B 7.05% Senior Notes due August 15, 2004 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and The Chase Manhattan Bank, as trustee (the "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 __, 1999, among the Company and you (the "Underwriting
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(2)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-42033, 333-42033-01 and
333-42033-02) pertaining to the Notes (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 _____________, 199_, 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, a Registered Limited Liability Partnership ("Beggs &
Lane"), and relying as to matters of New York law upon the opinion dated the
date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of 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 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 of the
Company's Annual Report on Form 10-K for the year ended December 31, 1998
(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 and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series B Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Maine, Florida, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Beggs & Lane may rely on this opinion in
giving their opinion pursuant to the Underwriting Agreement insofar as such
opinion relates to matters of Georgia law and the federal law of the United
States and Dewey Ballantine LLP may rely on this opinion in giving their opinion
pursuant to the Underwriting Agreement insofar as such opinion relates to
matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
Bear, Stearns & Co. Inc.
Banc One Capital Markets, Inc.
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Company
Series B 7.05% Senior Notes due August 15, 2004
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of January 1,
1998 as heretofore supplemented (the "Original Indenture"), between Gulf Power
Company (the "Company") and the Bank, as Trustee, and (b) the 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 to general
principles of equity (including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing), regardless of whether considered
in a proceeding in equity or at law;
iii) the execution, delivery and performance by the
Bank of the Indenture do not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
iv) no approval, authorization or other action by,
or filing with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the trust powers of the Bank is
required in connection with the execution and delivery by the Bank of the
Indenture or the performance by the Bank of its duties thereunder, except such
as have been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 199_
Bear, Stearns & Co. Inc.
Banc One Capital Markets, Inc.
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
GULF POWER COMPANY
Series B 7.05% Senior Notes
due August 15, 2004
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Gulf Power Company (the "Company") of $____________ of
its Series B 7.05% Senior Notes (the "Notes") pursuant to a Senior Note
Indenture dated as of January 1, 1998, by and between the Company and The Chase
Manhattan Bank, as trustee (the "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 ________________,
1999, among the Company and the Underwriters (the "Underwriting Agreement").
This opinion is being delivered to you pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-42033, 333-42033-01 and
333-42033-02) pertaining to the Notes (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
_________, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended ________________,
199_, the Quarterly Reports on Form 10-Q of the Company for the quarters ended
_________ 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,
a Registered Limited Liability Partnership ("Beggs & Lane"), dated the date
hereof and addressed to you and as to all matters covered hereby which are
governed by or dependent upon the 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 authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of 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
of the Company's Annual Report on Form 10-K for the year ended December 31, 1998
(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 and with respect to
information set forth in the Final Supplemented Prospectus under the caption
"Description of the Series B Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company."
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Maine, Florida, Mississippi and Georgia.
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 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Troutman Sanders LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP