Exhibit 1
Gulf Power Capital Trust IV
(a Delaware Statutory Trust)
Flexible Trust Preferred Securities
(Five Year Initial Fixed Rate Period)
(Liquidation Amount $1,000 Per Preferred Security)
UNDERWRITING AGREEMENT
December 5, 2002
▇▇▇▇▇▇ Brothers Inc.
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Gulf Power Capital Trust IV (the "Trust"), a statutory trust
organized under the Statutory Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. (ss.) 3801 et
seq.), and Gulf Power Company, a Maine corporation (the "Company" and, together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
you and the other Underwriter named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representative (in such capacity,
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Trust and the purchase by the Underwriters, acting severally and
not jointly, of the respective numbers of Flexible Trust Preferred Securities
(Five Year Initial Fixed Rate Period) (Liquidation Amount $1,000 per Preferred
Security) of the Trust ("Preferred Securities") set forth in Schedule I. The
Preferred Securities will be guaranteed by the Company with respect to
distributions and payments upon liquidation, redemption and otherwise (the
"Guarantee") pursuant to the Guarantee Agreement (the "Guarantee Agreement"), to
be dated as of December 1 , 2002, between the Company and JPMorgan Chase Bank,
as trustee (the "Guarantee Trustee"). The Preferred Securities and the related
Guarantee are referred to herein as the "Securities".
The Offerors understand that the Underwriters propose to make
a public offering of the Preferred Securities as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities (the
"Common Securities") and will be used by the Trust to purchase $41,238,000
aggregate principal amount of Series E Junior Subordinated Notes due November
30, 2042 (the "Junior Subordinated Notes") to be issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to an
Amended and Restated Trust Agreement, to be dated as of December 1, 2002 (the
"Trust Agreement"), among the Company, as Depositor, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇
Boston (the "Administrative Trustees"), Chase Manhattan Bank USA, National
Association, a national banking association (the "Delaware Trustee"), JPMorgan
Chase Bank, a New York banking corporation (the "Property Trustee" and, together
with the Delaware Trustee and the Administrative Trustees, the "Trustees"), and
the holders from time to time of undivided beneficial interests in the assets of
the Trust. The Junior Subordinated Notes will be issued pursuant to an
indenture, dated as of January 1, 1997 (the "Base Indenture"), between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
trustee (the "Debt Trustee"), and a fifth supplemental indenture to the Base
Indenture, to be dated as of December 13, 2002 (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.
The Company and the Trust will enter into an Agreement as to
Expenses and Liabilities to be dated as of December 1, 2002 (the "Agreement as
to Expenses and Liabilities") pursuant to which the Company will guarantee on a
subordinated basis to each person or entity to whom the Trust may be indebted or
liable, the full payment of such obligations. The Company and the Trust will
enter into a Remarketing Agreement dated as of December 13, 2002 with ▇▇▇▇▇▇
Brothers Inc. (the "Remarketing Agreement"), as remarketing agent (the
"Remarketing Agent"), providing, among other things, that the Remarketing Agent
will follow certain remarketing procedures relating to the Preferred Securities.
The Company and the Trust will enter into a Calculation Agent Agreement , to be
dated as of December 13, 2002 with JPMorgan Chase Bank (the "Calculation Agent
Agreement"), as calculation agent (the "Calculation Agent"), providing, among
other things that the Calculation Agent will follow certain procedures relating
to the Preferred Securities.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Offerors jointly and
severally represent and warrant to each Underwriter as follows:
(a) A registration statement on Form S-3 (File Nos. 333-59942, ▇▇▇-▇▇▇▇▇-▇▇ and
333-59942-02), in respect of the Preferred Securities, the Guarantee, the
Junior Subordinated Notes and certain other securities (the "Registered
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, 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, 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
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 Registered Securities, in the form in which it
was included in the Registration Statement at the time it became effective,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the 1933 Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; the Prospectus as supplemented by
a preliminary prospectus supplement dated December 4, 2002 relating to the
Preferred Securities, the Guarantee and 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 Preferred Securities, the Guarantee and 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(e) 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 neither the Trust nor the
Company makes any warranty or representation to any Underwriter with
respect to: (A) any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust or the
Company by an Underwriter through you expressly for use in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus; or (B) any
information set forth in the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus under the caption "Description of the
Preferred Securities -- Book-Entry Only Issuance -- The Depository Trust
Company".
(c) The Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the applicable provisions of the 1933 Act
and the rules and regulations of the Commission thereunder and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Registration Statement, the Prospectus and, to the extent not used to
confirm sales of the Securities, the Preliminary Supplemented Prospectus,
comply, and the Final Supplemented Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus, when any such
post-effective amendments are declared effective or 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 Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the General Rules and Regulations of
the Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto, (ii)
as of the filing date thereof as to the Preliminary Supplemented Prospectus, and
(iii) as of the applicable filing date as to the Final Supplemented Prospectus
and any Prospectus as further amended or supplemented, contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that neither the Company nor the Trust
makes any warranties or representations with respect to (A) that part of the
Registration Statement which shall constitute the Statements of Eligibility
(Form T-1) under the 1939 Act, (B) statements or omissions made in the
Registration Statement, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Trust or the Company by an Underwriter expressly for
use therein or (C) any information set forth in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus under the caption "Description
of the Preferred Securities -- Book-Entry Only Issuance -- The Depository Trust
Company".
(e) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has been no material adverse change in
the business, properties or financial condition of the Company.
(g) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except as
otherwise stated therein, there has not been any material adverse
change or, to the best of the Company's knowledge, any development
involving a prospective material adverse change in or affecting the
business, properties or financial condition of the Trust (it being
understood that any such change involving only the Company shall not
constitute such a change with respect to the Trust).
(h) The Company is a corporation duly organized and existing under the laws
of the State of Maine, is duly qualified to carry on its business as a
foreign corporation under the laws of the States of Florida, Georgia
and Mississippi, and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform its
obligations under this Agreement, the Trust Agreement, the Indenture
and the Guarantee Agreement and to purchase, own, and hold the Common
Securities issued by the Trust and to issue and deliver the Junior
Subordinated Notes and the Guarantee.
(i) The Trust has been duly created and is validly existing and in good
standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Final Supplemented Prospectus and to enter into
and perform its obligations under this Agreement and the Trust Agreement;
the Trust is duly qualified to transact business as a foreign company and
is in good standing in any other jurisdiction in which such qualification
is necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the Trust; the
Trust is not a party to or otherwise bound by any agreement other than
those described in the Final Supplemented Prospectus; the Trust is and will
be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the Trust is
and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(j) The Common Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Final
Supplemented Prospectus, will be validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided
beneficial interests in the Trust and will conform in all material
respects to all statements relating thereto contained in the Final
Supplemented Prospectus; the issuance of the Common Securities is not
subject to preemptive or other similar rights; and, on the Closing Date
(as defined herein), all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(k) This Agreement has been duly authorized, executed and delivered by
each of the Offerors.
(l) The Trust Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the Company and
the Administrative Trustees, and assuming due authorization, execution and
delivery of the Trust Agreement by the Delaware Trustee and the Property
Trustee, the Trust Agreement will, on the Closing Date, be a valid and
binding obligation of the Company and the Administrative Trustees,
enforceable against the Company and the Administrative Trustees in
accordance with its terms, except to the extent that enforcement thereof
may be limited by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general principles of equity
(regardless of whether enforcement is considered in a proceeding at law or
in equity) (the "Enforceability Exceptions") and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus; and, on the Closing Date, the Trust Agreement will
have been duly qualified under the 1939 Act.
(m) The Guarantee Agreement, the Remarketing Agreement, the Calculation Agent
Agreement and the Agreement as to Expenses and Liabilities have been duly
authorized by the Company and, on the Closing Date, will have been duly
executed and delivered by the Company, and, assuming due authorization,
execution and delivery of the Guarantee Agreement, the Remarketing
Agreement, the Calculation Agent Agreement and the Agreement as to Expenses
and Liabilities by the other respective parties thereto, the Guarantee
Agreement, Remarketing Agreement, the Calculation Agent Agreement and the
Agreement as to Expenses and Liabilities will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms except to the
extent that enforcement thereof may be limited by the Enforceability
Exceptions, and each of the Guarantee, the Guarantee Agreement, Remarketing
Agreement, the Calculation Agent Agreement and the Agreement as to Expenses
and Liabilities will conform in all material respects to all statements
relating thereto contained in the Final Supplemented Prospectus; and, on
the Closing Date, the Guarantee Agreement will have been duly qualified
under the 1939 Act.
(n) The Preferred Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
non-assessable undivided beneficial interests in the assets of the Trust,
will be entitled to the benefits of the Trust Agreement and will conform in
all material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; the issuance of the Preferred Securities is
not subject to preemptive or other similar rights; (subject to the terms of
the Trust Agreement) holders of Preferred Securities will be entitled to
the same limitation of personal liability under Delaware law as extended to
stockholders of private corporations for profit.
(o) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by the Enforceability
Exceptions; the Indenture will conform in all material respects to all
statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(p) The issuance and delivery of the Junior Subordinated Notes have been
duly authorized by the Company and, on the Closing Date, the Junior
Subordinated Notes will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the 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.
(q) The Company's obligations under the Guarantee (i) are subordinate and
junior in right of payment to all liabilities of the Company, except
those obligations or liabilities made pari passu or subordinate by
their terms, (ii) are pari passu with the preferred stock issued by the
Company and (iii) are senior to all common stock of the Company.
(r) The Junior Subordinated Notes are subordinated and junior in right of
payment to all "Senior Indebtedness" (as defined in the Indenture) of
the Company.
(s) Each of the Administrative Trustees of the Trust is an officer of the
Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.
(t) Neither the Trust nor the Company nor any of the Company's other
subsidiaries is nor, after giving effect to the offering and sale of
the Preferred Securities, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(u) The execution, delivery and performance by the Offerors of this Agreement,
the Remarketing Agreement, the Calculation Agent Agreement, the Preferred
Securities and the Common Securities, by the Company of the Indenture, the
Junior Subordinated Notes, the Guarantee Agreement, the Trust Agreement,
the Guarantee and the Agreement as to Expenses and Liabilities and the
consummation by the Offerors of the transactions contemplated herein and
therein and compliance by the Offerors with their respective obligations
hereunder and thereunder shall have been duly authorized by all necessary
action (corporate or otherwise) on the part of the Offerors and do not and
will not result in any violation of the charter or bylaws of the Company,
or the Trust Agreement or related Certificate of Trust and do not and will
not conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Trust
or the Company under (A) any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which the Trust or the
Company is a party or by which either of them may be bound or to which any
of their properties may be subject (except for conflicts, breaches or
defaults which would not, individually or in the aggregate, be materially
adverse to the Trust or the Company or materially adverse to the
transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, or
any regulatory body or administrative agency or other governmental body
having jurisdiction over the Trust or the Company, or any of their
respective properties.
(v) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale of the Common Securities or the offering of the
Preferred Securities, the Junior Subordinated Notes or the Guarantee or
the transactions contemplated in this 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; (C) the qualification of the Trust Agreement,
the Guarantee Agreement and the Indenture under the 1939 Act; (D) the
approval of the Florida Public Service Commission (the "Florida
Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or "blue sky" laws.
(w) The financial statements incorporated by reference in the Registration
Statement, the Preliminary Supplemented Prospectus and the Final
Supplemented Prospectus, together with the related schedules and notes,
present fairly, in all material respects, the financial position, results
of operations and cash flows of the Company as of and for the dates
indicated; said financial statements have been prepared in conformity with
accounting principles generally accepted in the United States ("GAAP")
applied on a consistent basis (except that the unaudited financial
statements may be subject to normal year-end adjustments) throughout the
periods involved and necessarily include amounts that are based on the best
estimates and judgments of management. The selected financial data and the
summary financial information included in the Registration Statement, the
Preliminary Supplemented Prospectus and the Final Supplemented Prospectus
present fairly the information shown therein and have been compiled on a
basis consistent with that of the audited and unaudited financial
statements incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at the price per security
set forth in Schedule II hereto, the number of Preferred Securities set forth in
Schedule I opposite the name of such Underwriter.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price set forth on Schedule II, which is a fixed price
determined by agreement between the Representative and the Offerors. As
compensation to the Underwriters for their commitments hereunder and in view of
the fact that the proceeds of the sale of the Preferred Securities will be used
to purchase the Junior Subordinated Notes of the Company, the Company hereby
agrees to pay on the Closing Date (as defined below) to the Representative, for
the accounts of the several Underwriters, a commission per Preferred Security as
set forth on Schedule II for the Preferred Securities to be delivered by the
Trust hereunder on the Closing Date.
(b) Payment of the purchase price for, and delivery of certificates for, the
Preferred Securities shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Bank
of America Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ at 10:00
A.M., Eastern Standard Time, on December 13, 2002 or such other time, place or
date as shall be agreed upon by the Representative, the Trust and the Company
(such time and date of payment and delivery being herein called the "Closing
Date"). Payment shall be made to the Trust by wire transfer in federal funds at
the Closing Date, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Preferred Securities to be
purchased by them. Certificates for the Preferred Securities shall be in such
denominations and registered in such names as the Representative may request in
writing at least two business days before the Closing Date. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Preferred Securities which it has agreed to purchase. The Representative,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred Securities
to be purchased by any Underwriter whose payment has not been received by the
Closing Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
The certificate(s) for the Preferred Securities will be made
available for examination and packaging by the Representative not later than
12:00 Noon, New York time, on the last business day prior to the Closing Date.
On the Closing Date, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2(a)
hereof by wire transfer payable to the Representative in federal funds.
SECTION 3. COVENANTS OF THE OFFERORS. Each of the Offerors jointly and
severally covenants with each Underwriter as follows:
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(a) The Offerors, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as originally
filed and of all amendments thereto, heretofore or hereafter made,
including any post-effective amendment (in each case including all exhibits
filed therewith, and including unsigned copies of each consent and
certificate included therein or filed as an exhibit thereto, except
exhibits incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the Representative orally
of the issuance of any stop order under the 1933 Act with respect to the
Registration Statement, or the institution of any proceedings therefor, of
which the Company shall have received notice, and will use its best efforts
to prevent the issuance of any such stop order and to secure the prompt
removal thereof, if issued. The Offerors will deliver to the Underwriters
sufficient conformed copies of the Registration Statement, the Prospectus,
the Preliminary Supplemented Prospectus and the Final Supplemented
Prospectus and of all supplements and amendments thereto (in each case
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
▇▇▇▇ ▇▇▇.
(b) The Offerors will furnish the Underwriters with copies of each amendment
and supplement to the Preliminary Supplemented Prospectus and Final
Supplemented Prospectus relating to the offering of the Preferred
Securities in such quantities as the Underwriters may from time to time
reasonably request. If, during the period (not exceeding nine months) when
the delivery of a prospectus shall be required by law in connection with
the sale of any Preferred Securities by an Underwriter or dealer, any event
relating to or affecting the Company, or of which the Company shall be
advised in writing by the Underwriters, shall occur, which in the opinion
of the Company or of Underwriters' counsel should be set forth in a
supplement to or an amendment of the Preliminary Supplemented Prospectus or
Final Supplemented Prospectus, as the case may be, in order to make the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus not
misleading in the light of the circumstances when it is delivered, or if
for any other reason it shall be necessary during such period to amend or
supplement the Preliminary Supplemented Prospectus or Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by
reference in the Preliminary Prospectus or Prospectus in order to comply
with the 1933 Act or the 1934 Act, the Company forthwith will (i) notify
the Underwriters to suspend solicitation of purchases of the Preferred
Securities and (ii) at its expense, make any such filing or prepare and
furnish to the Underwriters a reasonable number of copies of a supplement
or supplements or an amendment or amendments to the Preliminary
Supplemented Prospectus or Final Supplemented Prospectus which will
supplement or amend the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus so that, as supplemented or amended, it will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Preliminary Supplemented Prospectus or
Final Supplemented Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is required
to deliver a prospectus in connection with the sale of any Preferred
Securities after the expiration of the period specified in the preceding
sentence, the Company, upon the request of 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 ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP.
(c) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities and, to the extent required or
advisable, the Guarantee and the Junior Subordinated Notes, for
offering and sale under the applicable securities laws of such states
and the other jurisdictions of the United States as the Representative
may designate; provided, however, that neither of the Offerors shall be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a consent to service of process
or to file annual reports or to comply with any other requirements in
connection with such qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earning statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the ▇▇▇▇ ▇▇▇) 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) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Representative of such filing and to confirm such advice in
writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses incident to
the performance of each Offeror's obligations under this Agreement, including
but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Preferred
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the qualification of the
Preferred Securities and, to the extent required or advisable, the Guarantee and
the Junior Subordinated Notes, under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Preliminary
Supplemented Prospectus, the Final Supplemented Prospectus, and any amendments
or supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses of
the Debt Trustee, including the fees and disbursements of counsel for the Debt
Trustee in connection with the Indenture and the Junior Subordinated Notes, (ix)
the fees and expenses of the Delaware Trustee, the Property Trustee and the
Guarantee Trustee, including the fees and disbursements of counsel for the
Delaware Trustee in connection with the Trust Agreement and the related
Certificate of Trust, (x) the fees and disbursements of Delaware counsel to the
Trust, (xi) any fees payable in connection with the rating of the Preferred
Securities and Junior Subordinated Notes, (xii) the cost and charges of any
transfer agent or registrar, (xiii) the fees and expenses incurred in connection
with the listing, if applicable, of the Preferred Securities and the Junior
Subordinated Notes on the New York Stock Exchange and (xiv) the cost of
qualifying the Preferred Securities with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Preferred Securities, including fees and disbursements of
their counsel, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Preferred
---------------------------------------
Securities are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings for
that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
or any supplement thereto, is required pursuant to Rule 424, the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus,
and any such supplement, shall have been filed in the manner and within
the time period required by Rule 424.
(b) Orders of the Florida Commission and the Commission permitting the
transactions contemplated hereby substantially in accordance with the
terms and conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the Company
(but all provisions of such order or orders heretofore entered, copies
of which have heretofore been delivered to the Representative, are
deemed acceptable to the Underwriters and the Company and all
provisions of such order or orders hereafter entered shall be deemed
acceptable to the Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to this Agreement
shall give notice to the other parties to the effect that such order
contains an unacceptable provision).
(c) On the Closing Date the Representative shall have received:
(1) The opinion, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇, a Registered
Limited Liability Partnership, general counsel for the Company,
substantially in the form attached hereto as Schedule III-A.
(2) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel
for the Company, substantially in the form attached
hereto as Schedule III-B.
(3) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., Delaware counsel to the Trust, substantially in the
form attached hereto as Schedule IV.
(4) The opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
P.A., Delaware counsel to the Delaware Trustee, substantially in the
form attached hereto as Schedule V.
(5) The opinion, dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇,
counsel to the Property Trustee, the Guarantee Trustee, the Debt
Trustee and the Calculation Agent, substantially in the form attached
hereto as Schedule VI.
(6) The favorable opinion, dated as of the Closing Date, of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, substantially in the form
attached hereto as Schedule VII.
(7) At the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or financial
condition of the Trust or the Company, whether or not arising in the
ordinary course of business, and the Representative shall have received
a certificate of the President or any Vice President of the Company and
a certificate of the Administrative Trustees of the Trust, and dated as
of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the Trust
and the Company have complied with all agreements and satisfied all
conditions on their respective parts to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge
of the Company, threatened by the Commission.
(8) A letter dated the Closing Date from Deloitte & Touche LLP to the
effect that: (A) they are independent public accountants with respect
to the Company within the meaning of the 1933 Act and the applicable
rules and regulations thereunder adopted by the Commission, (B) on the
basis of certain limited procedures performed 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) performing the
procedures specified by the American Institute of Certified Public
Accountants ("AICPA") for a review of interim financial information as
described in Statement on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if any, of the
Company incorporated in the Prospectus and of the latest available
unaudited financial statements of the Company, if any, for any calendar
quarter subsequent to the date of those incorporated in the Prospectus;
and (iii) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding such
unaudited financial statements or any specified unaudited amounts
derived therefrom (it being 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 Deloitte & Touche LLP make no representations as to
the sufficiency of such procedures for the Underwriters' purposes),
nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed
financial statements, if any, incorporated in the Final Supplemented
Prospectus, for them to be in conformity with generally accepted
accounting principles; (2) such unaudited condensed financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations thereunder;
(3) the unaudited amounts for Operating Revenues, Earnings Before
Interest and Income Taxes 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) set forth in the Final Supplemented Prospectus
do not agree with the amounts set forth in or derived from the
unaudited financial statements for the same period; (4) as of a
specified date not more than five business days prior to the date of
delivery of such letter, there has been any change in the capital stock
or long-term debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance sheet
incorporated in the Prospectus, except in each case for changes or
decreases which (i) the Prospectus discloses have occurred or may
occur, (ii) are occasioned by the declaration of dividends, (iii) are
occasioned by draw-downs under existing pollution control financing
arrangements, (iv) are occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (v) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory or
optional redemption provisions relating thereto, (vi) are occasioned by
the reclassification of current maturities of long-term debt or (vii)
are disclosed in such letter; and (5) the unaudited amounts for
Operating Revenues, Earnings Before Interest and Income Taxes 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 calendar quarter
subsequent to those set forth in (3) above, which if available shall be
set forth in such letter, do not agree with the amounts set forth in or
derived from the unaudited financial statements for the same period or
were not determined on a basis substantially consistent with that of
the corresponding audited amounts or ratios included or incorporated by
reference in the Prospectus.
(9) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and
sale of the Preferred Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Offerors, in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriters.
(10) On the Closing Date, the Representative shall have received a
certificate of the Company certifying that a Special Event (as defined
in the Final Supplemented Prospectus) shall not have occurred and be
continuing.
(11) 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 ▇▇▇▇
▇▇▇) shall be unsatisfactory in form to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP 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 marketability of the Preferred Securities.
(12) The Company and the Trust shall have performed their respective
obligations when and as provided under this Agreement.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representative by notice to the Offerors at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE OFFERORS.
---------------------------------------------
The obligations of the Offerors shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------
(a) The Offerors jointly and severally agree to indemnify and hold harmless each
of the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
1934 Act or otherwise, and to reimburse the Underwriters and such controlling
person or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus or, if the Offerors
shall furnish to the Underwriters any amendments or any supplements thereto, or
shall make any filings pursuant to Section 13 or 14 of the 1934 Act which are
incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus as so amended or supplemented, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue statement
or alleged untrue statement or omission or alleged omission which was made in
such Registration Statement, Preliminary Prospectus, Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus, if the Offerors shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Preferred Securities to any
person if a copy of the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented 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 Offerors on account of
its agreement contained in this Section 7, to notify the Offerors in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Offerors of any such action shall not release the Offerors from any liability
which it may have to such Underwriter or to such controlling person otherwise
than on account of the indemnity agreement contained in this Section 7. In case
any such action shall be brought against the Underwriters or any such person
controlling such Underwriters and such Underwriter shall notify the Offerors of
the commencement thereof as above provided, the Offerors shall be entitled to
participate in (and, to the extent that they shall wish, including the selection
of counsel, to direct) the defense thereof, at their own expense. In case the
Offerors elect to direct such defense and select such counsel, any Underwriter
or controlling person shall have the right to employ its own counsel, but, in
any such case, the fees and expenses of such counsel shall be at the expense of
such Underwriter or controlling person unless the employment of such counsel has
been authorized in writing by the Offerors in connection with defending such
action. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to, or an admission of,
fault, culpability or a failure to act, by or on behalf of any indemnified
party. In no event shall any indemnifying party have any liability or
responsibility in respect of the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
effected without its prior written consent.
(b) The Company agrees to indemnify the Trust against all loss, liability,
claim, damage and expense whatsoever, as due from the Trust under Section 7(a)
hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors and such of its officers who have signed the
Registration Statement, the Trust and each other Underwriter and each person, if
any, who controls the Offerors or any such other Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to the same
extent and upon the same terms as the indemnity agreement of the Offerors set
forth in Section 7(a) hereof, but only with respect to alleged untrue statements
or omissions made in the Registration Statement, the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus, or such documents as amended or supplemented, in reliance upon and
in conformity with information furnished in writing to the Offerors by, or
through the Representative on behalf of, such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
--------------------------------------------------------------
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers or Trustees of the
Offerors submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by, or on behalf of the Offerors and shall survive
delivery of the Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Representative may terminate this Agreement, by notice to the Offerors,
at any time at or prior to the Closing Date if (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, or there shall have
been a material disruption in settlement of securities generally (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, (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, crisis or emergency (including without limitation, acts of terrorism)
affecting the United States, in any such case provided for in clauses (i)
through (iv) with the result that, in the reasonable judgment of the
Representative, the marketability of the Preferred Securities shall have been
materially impaired.
(b) If this Agreement shall be terminated by the Underwriters pursuant to
subsection (a) above or because of any failure or refusal on the part of the
Offerors to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Offerors shall be unable to perform their
obligations under this Agreement, then in any such case, the Company will
reimburse the Underwriters, severally, for the reasonable fees and disbursements
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 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 Preferred Securities
and, upon such reimbursement, the Offerors shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. 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 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Debt
Capital Markets Power Group; notices to the Offerors shall be directed to the
Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Secretary, with a copy to Southern Company Services, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters, the Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred to in Section
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Trust and
the Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Preferred Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 12. 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 13. 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 Trust and the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Trust and the Company in
accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By:
--------------------------------------------------
Title:
-----------------------------------------------
GULF POWER CAPITAL TRUST IV
By: Gulf Power Company, as Depositor
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇ BROTHERS INC.
By:
-----------------------------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriter named in Schedule I
hereto.
SCHEDULE I
NAME OF UNDERWRITER NUMBER OF PREFERRED SECURITIES
------------------- ------------------------------
▇▇▇▇▇▇ Brothers Inc. 32,000
SunTrust Capital Markets, Inc. 8,000
------
TOTAL 40,000
SCHEDULE II
Initial public offering price per
Preferred Security (and purchase
price per security to be paid by
the several Underwriters): $999.68
Compensation per Preferred Security
to be paid by the Company to the
several Underwriters in respect of
their commitments: $10.00 per
Preferred Security
Schedule III-A
[Letterhead of ▇▇▇▇▇ & ▇▇▇▇]
___________ __, 200_
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GULF POWER CAPITAL TRUST IV
FLEXIBLE TRUST PREFERRED SECURITIES
(Five Year Initial Fixed Rate Period)
Ladies and Gentlemen:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) its formation of Gulf Power Capital Trust IV
(the "Trust"), a Delaware statutory trust, pursuant to the Amended and Restated
Trust Agreement dated as of __________ __, 200_ among the Company and the
trustees named therein (the "Trust Agreement"); (ii) the Trust's issuance and
sale of Flexible Trust Preferred Securities evidencing approximately a 97%
undivided interest in the assets of the Trust (the "Preferred Securities");
(iii) the Trust's issuance and sale of Common Securities evidencing
approximately a 3% undivided interest in the assets of the Trust; (iv) the
Company's issuance and sale to the Trust of approximately $__________ of its
Series E Junior Subordinated Notes due __________ (the "Notes") pursuant to a
Subordinated Note Indenture dated as of January 1, 1997, by and between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
trustee (the "Debt Trustee"), as supplemented by the Fifth Supplemental
Indenture dated as of ___________, 2002 (collectively, the "Indenture"); (v) the
Agreement as to Expenses and Liabilities dated as of __________, 2002, between
the Company and the Trust (the "Agreement as to Expenses and Liabilities"); (vi)
the Remarketing Agreement, dated as of _, 2002, among the Company, the Trust and
▇▇▇▇▇▇ Brothers Inc., as remarketing agent (the "Remarketing Agreement"); (vii)
the Calculation Agent Agreement dated as of _____, 2002 among the Company, the
Trust and JPMorgan Chase Bank (the "Calculation Agent Agreement"), as
calculation agent (the "Calculation Agent"); and (viii) its issuance of a
guarantee (the "Guarantee") of the Preferred Securities pursuant to a Guarantee
Agreement dated as of __________, 2002 (the "Guarantee Agreement") between the
Company and JPMorgan Chase Bank, as trustee. The Preferred Securities are being
sold to you today pursuant to the terms of an Underwriting Agreement dated
December __, 2002, among the Company, the Trust and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-59942, ▇▇▇-▇▇▇▇▇-▇▇ and
333-59942-02) pertaining to the Preferred Securities (the "Registration
Statement") filed under the Securities Act of 1933, as amended (the "Act"), and
the prospectus dated June 1, 2001, as supplemented by a final prospectus
supplement dated __________ 2002 (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, 2001 (the "Form 10-K"), the
Quarterly Reports on Form 10-Q of the Company for the quarters ended __________
and the Current Reports on Form 8-K of the Company dated __________ (the
"Exchange Act Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Trust Agreement, the Indenture, the Guarantee Agreement,
the Remarketing Agreement, the Underwriting Agreement, the Agreement as to
Expenses and Liabilities and the Calculation Agent 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 to matters of
Georgia law and the federal law of the United States of America upon the opinion
dated the date hereof rendered to you by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, as to matters of
New York law upon the opinion dated hereof rendered to you by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP and as to matters of Delaware law upon the opinion dated hereof rendered to
you by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., 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 in the States of
Florida, Georgia and Mississippi and has due corporate authority to carry on the
public utility business in which it is engaged and to own and operate the
properties used by it in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the Underwriting
Agreement have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the Company.
3. All orders, consents, or other authorizations or approvals of the Florida
Public Service Commission and the Commission legally required for the issuance
and delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and the delivery of the Notes and the Guarantee and the issuance and
sale of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Florida or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt Trustee and the
Calculation Agent, respectively, 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 and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity; and the Notes
conform as to legal matters in all material respects to the description thereof
in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Guarantee 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 Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
7. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery by the trustees
named therein, the Trust Agreement constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
subject to the qualifications that the enforceability of the Company's
obligations under the Trust Agreement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditor's rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the Trust Agreement
has been duly qualified under the Trust Indenture Act of 1939, as amended.
9. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
10. To the best of our knowledge, all of the issued and outstanding Common
Securities of the Trust are directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
11. The execution, delivery and performance by the Trust of the Underwriting
Agreement, the Trust Agreement, the Remarketing Agreement and the Calculation
Agent Agreement; the issuance by the Trust of the Preferred Securities and the
Common Securities; the consummation by the Trust of the transactions
contemplated thereby; and the compliance by the Trust with its obligations
thereunder do not and will not result in any violation of the Trust Agreement or
related Certificate of Trust, and do not and will not conflict with, or result
in, a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by which it may be bound
or to which any of its properties may be subject, except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise), of the Trust,
(B) any existing applicable law, rule or regulation applicable to the Trust
(other than the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) or (C) any judgment, order or decree known to us of any
government, governmental instrumentality, or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties; and to the best of our
knowledge, the Trust is not a party to or otherwise bound by any agreement other
than those which are exhibits (or included in exhibits) to the Registration
Statement.
12. The Common Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when issued and delivered by the
Trust to the Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued and (subject to the terms of the
Trust Agreement) fully paid and non-assessable beneficial interests in the
assets of the Trust; and the issuance of the Common Securities is not subject to
preemptive or other similar rights.
13. The Preferred Securities have been duly authorized by the Trust Agreement
and (subject to the terms of the Trust Agreement), when delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable beneficial interests in the assets of the
Trust; the holders of the Preferred Securities will (subject to the terms of the
Trust Agreement) be entitled to the same limitation of personal liability under
Delaware law as is extended to stockholders of private corporations for profit
organized under the general corporation law of the State of Delaware; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights; and the Preferred Securities conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
14. The Agreement as to Expenses and Liabilities has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Agreement as to Expenses and Liabilities may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
15. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6, 10, 14 and 15 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 your counsel
and with representatives of Deloitte & Touche 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 ____________, 2002 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 Form 10-K (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) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, 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 Preferred
Securities - Book-Entry Only Issuance - The Depository Trust Company."
We are members of the Florida Bar and we do not express any
opinion herein concerning any law other than the law of the States of Maine,
Florida and Mississippi and, to the extent set forth herein, the laws of the
States of Delaware, Georgia and New York and 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
may rely on this opinion in giving their opinions pursuant to Section 5(c) of
the Underwriting Agreement insofar as such opinion relates to matters of Maine,
Florida and Mississippi law.
Yours very truly,
▇▇▇▇▇ & ▇▇▇▇
Schedule III-B
[Letterhead of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP]
__________ __, 2002
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GULF POWER CAPITAL TRUST IV
FLEXIBLE TRUST PREFERRED SECURITIES
(Five Year Initial Fixed Rate Period)
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) its formation of Gulf Power Capital Trust IV, a Delaware
statutory trust (the "Trust"), pursuant to the Amended and Restated Trust
Agreement dated __________, 2002 among the Company and the trustees named
therein (the "Trust Agreement"); (ii) the Trust's issuance and sale of Flexible
Trust Preferred Securities evidencing approximately a 97% undivided interest in
the assets of the Trust (the "Preferred Securities"); (iii) the Trust's issuance
and sale of Common Securities evidencing approximately a 3% undivided interest
in the assets of the Trust; (iv) the Company's issuance and sale to the Trust of
$__________ aggregate principal amount of its Series E Junior Subordinated Notes
due __________, (the "Notes") pursuant to a Subordinated Note Indenture dated as
of January 1, 1997, by and between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as Trustee (the "Debt Trustee"), as
supplemented by the Fifth Supplemental Indenture dated as of _____, 2002
(collectively, the "Indenture"); (v) the Agreement as to Expenses and
Liabilities dated as of __________, 2002, between the Company and the Trust (the
"Agreement as to Expenses and Liabilities"); (vi) the Remarketing Agreement,
dated as of __________, 2002, among the Company, the Trust and ▇▇▇▇▇▇ Brothers
Inc., as remarketing agent (the "Remarketing Agreement"); (vii) the Calculation
Agent Agreement dated as of __________, 2002 among the Company, the Trust and
JPMorgan Chase Bank "(Calculation Agent Agreement"), as calculation agent (the
"Calculation Agent"); and (viii) its issuance of a guarantee (the "Guarantee")
of the Preferred Securities pursuant to a Guarantee Agreement dated as of
__________, 2002 (the "Guarantee Agreement") between the Company and JPMorgan
Chase Bank, as trustee (the "Guarantee Trustee"). The Preferred Securities are
being sold to you today pursuant to the terms of an Underwriting Agreement dated
December ___, 2002 (the "Underwriting Agreement"), among the Company, the Trust
and the underwriters named in Schedule I thereto (the "Underwriters") for whom
you are acting as Representative. This opinion is being delivered to you as
Representative pursuant to Section 5(c)(2) of the Underwriting Agreement.
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 (File Nos. 333-59942, ▇▇▇-▇▇▇▇▇-▇▇ and
333-59942-02) pertaining to the Company and the Preferred Securities (the
"Registration Statement") filed under the Securities Act of 1933, as amended
(the "Act"), as it became effective under the Act and the prospectus of the
Company and the Trust dated _______ ___, 200_ as supplemented by a final
prospectus supplement dated __________, 2002 (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, 2001
(the "Form 10-K"), the Quarterly Reports on Form 10-Q of the Company for the
quarters ended __________ and the Current Reports on Form 8-K of the Company
dated __________ (the "Exchange Act Documents"), each as filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Trust Agreement, the Indenture, the Guarantee Agreement,
the Remarketing Agreement, the Underwriting Agreement, the Agreement as to
Expenses and Liabilities and the Calculation Agent 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, Maine and Mississippi law upon the opinion dated the date hereof
rendered to you by ▇▇▇▇▇ & ▇▇▇▇, a Registered Limited Liability Partnership
("▇▇▇▇▇ & Lane"), relying as to matters of New York law upon the opinion dated
the date hereof rendered to you by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP and relying as to
matters of Delaware law upon the opinion dated the date hereof rendered to you
by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., 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, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the Underwriting
Agreement have been duly authorized by all necessary corporate action, and the
Underwriting Agreement has been duly executed and delivered by the Company.
3. All orders, consents or other authorizations or approvals of the Florida
Public Service Commission and the Commission legally required for the issuance
and delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Florida or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt Trustee and the
Calculation Agent, respectively, 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 and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
and the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Guarantee 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 Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
7. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and, assuming due authorization, execution and delivery thereof by the
trustees named therein, the Trust Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Trust Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditor's rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
8. Each of the Indenture, the Guarantee Agreement and the Trust Agreement
has been duly qualified under the Trust Indenture Act of 1939, as amended.
9. Neither the Company nor the Trust is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
10. The statements and legal conclusions contained in the Final Supplemented
Prospectus under the caption "Certain Federal Income Tax Consequences" are
correct in all material respects.
11. To the best of our knowledge, all of the issued and outstanding Common
Securities of the Trust are directly owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
12. The execution, delivery and performance by the Trust of the Underwriting
Agreement and the Trust Agreement; the issuance by the Trust of the Preferred
Securities and the Common Securities; the consummation by the Trust of the
transactions contemplated thereby; and the compliance by the Trust with its
obligations thereunder do not and will not result in any violation of the Trust
Agreement or related Certificate of Trust, and do not and will not conflict
with, or result in, a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust under (A) any contract,
indenture, mortgage, loan agreement, note, lease or any other agreement or
instrument known to us to which the Trust is a party or by which it may be bound
or to which any of its properties may be subject, except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a
material adverse effect on the condition (financial or otherwise) of the Trust,
(B) any existing applicable law, rule or regulation applicable to the Trust
(other than the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) or (C) any judgment, order or decree known to us of any
government, governmental instrumentality, or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body having
jurisdiction over the Trust or any of its properties; and to the best of our
knowledge, the Trust is not a party to or otherwise bound by any agreement other
than those which, or the forms of which, are exhibits (or included in exhibits)
to the Registration Statement.
13. The Common Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when issued and delivered by the
Trust to the Company against payment therefor as described in the Final
Supplemented Prospectus, will be validly issued, fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; and the issuance of
the Common Securities is not subject to preemptive or other similar rights.
14. The Preferred Securities have been duly authorized by the Trust Agreement
and (subject to the terms of the Trust Agreement), when delivered to and paid
for by the Underwriters pursuant to the Underwriting Agreement, will be validly
issued, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust; the holders of the Preferred Securities will (subject to
the terms of the Trust Agreement) be entitled to the same limitation of personal
liability under Delaware law as is extended to stockholders of private
corporations for profit organized under the general corporation law of the State
of Delaware; the issuance of the Preferred Securities is not subject to
preemptive or other similar rights; and the Preferred Securities conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
15. The Agreement as to Expenses and Liabilities has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Agreement as to Expenses and Liabilities may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
16. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6, 9, 10 and 14 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
Deloitte & Touche 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 ___________, 2002, 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 Form 10-K (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) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, 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 Preferred
Securities - 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 Delaware and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent except that ▇▇▇▇▇ & ▇▇▇▇ may rely on this opinion in
giving its 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP may rely on this opinion in giving its opinion
pursuant to the Underwriting Agreement insofar as such opinion relates to
matters of Georgia law.
Yours very truly,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
5
Schedule IV
[Letterhead of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.]
__________ __, 200_
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Gulf Power Capital Trust IV Flexible Trust Preferred
Securities (Five Year Initial Fixed Rate Period)
Ladies and Gentlemen:
We have acted as special Delaware counsel for Gulf Power
Company, a Maine corporation (the "Company"), and Gulf Power Capital Trust IV, a
Delaware statutory trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you pursuant to Section 5(c)(3) of
the Underwriting Agreement, dated __________, 2002 (the "Underwriting
Agreement"), among the Company, the Trust, ▇▇▇▇▇▇ Brothers Inc. and the other
Underwriters listed in Schedule I thereto.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated April 25,
2001 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on April 25, 2001;
(b) The Certificate of Amendment pursuant to 3807(E) of
the Delaware Statutory Trust Act, filed with the Secretary of State on
July 9, 2001;
(c) The Trust Agreement of the Trust, dated as of April 25,
2001, between the Company and the trustee of the Trust named therein, as amended
and restated pursuant to an Amended and Restated Trust Agreement (including
Exhibits A and B thereto), dated as of _____, 2002, among the Company, the
trustees of the Trust named therein (the "Trustees"), and the holders, from time
to time, of the undivided beneficial interests in the assets of the Trust (the
"Trust Agreement");
(d) The Underwriting Agreement;
(e) The Prospectus, dated June 1, 2001 (the "Prospectus"), as
supplemented by the Prospectus Supplement dated _________, 2002 (the "Prospectus
Supplement"), relating to the Flexible Trust Preferred Securities of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities");
(f) A Certificate of Good Standing for the Trust,
dated _________, 2002, obtained from the Secretary of State;
and
(g) The Remarketing Agreement, dated _________, 2002, among
the Trust, the Company and ▇▇▇▇▇▇ Brothers Inc. (the "Remarketing Agreement"),
as remarketing agent (the "Remarketing Agent") and the Calculation Agent
Agreement dated as of _________, 2002 among the Company, the Trust and JPMorgan
Chase Bank (the "Calculation Agent Agreement"), as calculation agent (the
"Calculation Agent").
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (f) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (f) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due organization or due
formation or due creation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its organization or formation or creation, (iii) the
legal capacity of natural persons who are parties to the documents examined by
us, (iv) except to the extent provided in paragraph 2 below, the power and
authority of each of the parties to the documents examined by us to execute and
deliver, and to perform its obligations under, such documents, (v) except to the
extent provided in paragraph 4 below, the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Trust Security is to be issued by the Trust
(collectively, the "Trust Security Holders") of a Trust Securities Certificate
for such Trust Security and the payment for the Trust Security acquired by it,
in accordance with the Trust Agreement, the Prospectus and the Prospectus
Supplement, and (vii) the issuance and sale of the Trust Securities to the Trust
Security Holders in accordance with the Trust Agreement, the Prospectus and the
Prospectus Supplement. We have not participated in the preparation of the
Prospectus or the Prospectus Supplement.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Statutory Trust Act, 12
Del. C.ss.3801, et seq. (the "Statutory Trust Act"), and all filings required
under the laws of the State of Delaware
------- -- ---
with respect to the creation and valid existence of the Trust as a statutory
trust have been made.
2. Under the Statutory Trust Act and the Trust Agreement, the Trust has the
trust power and authority to (i) own property and conduct its business, all as
described in the Prospectus and the Prospectus Supplement, (ii) execute and
deliver, and to perform its obligations under, the Underwriting Agreement, the
Remarketing Agreement and the Calculation Agent Agreement, (iii) issue and
perform its obligations under the Trust Securities, (iv) perform its obligations
under the Trust Agreement.
3. The Trust Securities have been duly authorized by the Trust Agreement and
will be duly and validly issued undivided beneficial interests in the assets of
the Trust. Subject to the qualifications set forth in paragraph 6 below, the
Preferred Securities are fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. Under the Statutory Trust Act and the
Trust Agreement, the Trust Securities are not subject to any preemptive or other
similar rights.
4. Under the Statutory Trust Act and the Trust Agreement, the Underwriting
Agreement, the Remarketing Agreement and the Calculation Agent Agreement have
been duly authorized by all necessary trust action on the part of the Trust.
5. No authorization, approval, consent or order of any Delaware court or
Delaware governmental authority or Delaware agency is required to be obtained by
the Trust solely as a result of the issuance and sale of the Preferred
Securities.
6. The Persons to whom Preferred Securities are to be issued by the Trust
(collectively, the "Preferred Security Holders"), as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Preferred Securities Certificates
and the issuance of replacement Preferred Securities Certificates and (ii)
provide security or indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the Trust
Agreement.
7. The Trust Agreement constitutes a valid and binding obligation of the
Company, and is enforceable against the Company, in accordance with its terms.
8. The issuance and sale by the Trust of the Trust Securities, the execution,
delivery and performance by the Trust of the Underwriting Agreement, the
Remarketing Agreement and the Calculation Agent Agreement, the consummation by
the Trust of the transactions contemplated by the Underwriting Agreement, the
Trust Agreement and the Remarketing Agreement and the Calculation Agent
Agreement and compliance by the Trust with its obligations thereunder do not
violate (i) any of the provisions of the Certificate or the Trust Agreement or
(ii) any applicable Delaware law or Delaware administrative regulation.
9. We have reviewed the statements in the Prospectus under the caption "The
Trusts" and the statements in the Prospectus Supplement under the caption "Gulf
Power Capital Trust IV" and, insofar as they contain statements of Delaware law,
such statements are fairly presented.
The opinion expressed in paragraph 7 above is subject as to
enforcement, to the effect upon the Trust Agreement of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether considered and applied
in a proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions related to indemnification. In
addition, in connection with the opinion expressed in paragraph 7 above, to the
extent that Section 11.05 of the Trust Agreement provides that the Trust
Agreement is governed by New York law, we express no opinion concerning Section
11.05 of the Trust Agreement or the effect of Section 11.05 of the Trust
Agreement on the Trust Agreement.
We consent to your relying as to matters of Delaware law upon
this opinion in connection with the Underwriting Agreement. We consent to the
law firms of ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP relying
as to matters of Delaware law upon this opinion in connection with opinions to
be rendered by them pursuant to the Underwriting Agreement. Except as stated
above, without our prior written consent, this opinion may not be furnished or
quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.
Schedule V
[Letterhead of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.]
__________ __, 200_
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gulf Power Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gulf Power Capital Trust IV
c/o Gulf Power Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Gulf Power Capital Trust IV Flexible Trust Preferred
Securities (Five Year Initial Fixed Rate Period)
Ladies and Gentlemen:
We have acted as counsel to Chase Manhattan Bank USA, National
Association, a national banking association ("Chase USA"), in connection with
the formation of Gulf Power Capital Trust IV, a statutory trust existing under
the laws of the State of Delaware (the "Trust") pursuant to the Trust Agreement,
dated as of April 25, 2001, by and between Chase USA, not in its individual
capacity but solely as trustee (the "Trustee"), and Gulf Power Company (the
"Company"), as amended and restated pursuant to an Amended and Restated Trust
Agreement dated as of ____________, 2002, among the Company, the Trustee, the
other trustees named therein and the holders from time to time of the undivided
beneficial interests in the assets of the Trust (the "Trust Agreement"). This
opinion is being delivered to you pursuant to Section 5(c)(4) of the
Underwriting Agreement, dated ___________ __, 2002 (the "Underwriting
Agreement"), among ▇▇▇▇▇▇ Brothers Inc., the several Underwriters named in
Schedule I thereto, Gulf Power Company and the Trust, pursuant to which the
$___,000,000 Flexible Trust Preferred Securities of the Trust will be sold. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Underwriting Agreement.
We have examined an original or a copy of the Trust Agreement.
We have also examined originals or copies of such other documents and such
corporate records, certificates and other statements of governmental officials
and corporate officers and other representatives of the corporations or entities
referred to herein as we have deemed necessary or appropriate for the purposes
of the opinions expressed herein. Moreover, as to certain facts material to the
opinions expressed herein, we have relied upon the representations and
warranties contained in the documents referred to in this paragraph.
Based upon the foregoing and upon an examination of such
questions of law as we have deemed necessary or appropriate, and subject to the
assumptions, exceptions and qualifications set forth below, we advise you that,
in our opinion:
1. Chase USA is a national banking association with trust powers, duly formed,
validly existing in good standing under the laws of the United States and has
the power and authority to execute, deliver and perform its obligations under
the Trust Agreement.
2. The Trust Agreement has been duly authorized, executed and delivered by Chase
USA and constitutes a legal, valid and binding obligation of Chase USA,
enforceable against Chase USA, in accordance with its terms.
3. The execution and delivery of, and performance of the terms of, the Trust
Agreement by Chase USA, does not conflict with or constitute a breach of, or
default under, the charter or by-laws of Chase USA.
4. No consent, approval or authorization of, or registration, declaration or
filing with, any court or governmental agency or body having jurisdiction in the
premises is required under Delaware law for the execution, delivery or
performance by Chase USA of the Trust Agreement.
The foregoing opinions are subject to the following
exceptions, qualifications and assumptions:
(A) We are admitted to practice law in the State of Delaware
and we do not hold ourselves out as being experts on the law of any other
jurisdiction. The foregoing opinions are limited to the laws of the State of
Delaware and the federal laws of the United States of America governing the
banking and trust powers of Chase USA (except that we express no opinion with
respect to (i) state securities or "blue sky" laws and (ii) federal securities
laws, including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the Trust Indenture Act of 1939, as
amended, the Investment Company Act of 1940, as amended, and laws, rules and
regulations relating to money laundering and terrorist groups (including any
requirements under the USA Patriot Act of 2001, as amended)), and we have not
considered and express no opinion on the laws, rules and regulations of any
other jurisdiction.
(B) The foregoing opinions regarding enforceability are
subject to (i) applicable bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and similar laws relating to
and affecting the rights and remedies of creditors generally, (ii) principles of
equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of federal or state securities laws on the enforceability of
provisions relating to indemnification or contribution.
(C) We have assumed the due authorization, execution and
delivery by each of the parties thereto, other than Chase USA, of the Trust
Agreement, and that each of such parties has the full power, authority and legal
right to execute, deliver and perform such document.
(D) We have assumed that all signatures (other than those of
Chase USA) on documents examined by us are genuine, that all documents submitted
to us as originals are authentic, and that all documents submitted to us as
copies or specimens conform with the originals, which facts we have not
independently verified.
This opinion may be relied upon by you in connection with the
matters set forth herein, and without our prior written consent, may not be
furnished or quoted to, or relied upon by, any other person or entity for any
purpose.
Very truly yours,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & FINGER, P.A.
Schedule VI
[Letterhead of Cravath, Swaine & ▇▇▇▇▇]
__________ __, 200_
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gulf Power Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gulf Power Capital Trust IV
c/o Gulf Power Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gulf Power Capital Trust IV
Flexible Trust Preferred Securities
(Five Year Initial Fixed Rate Period)
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Subordinated Note Indenture, dated as of January 1, 1997, as heretofore
supplemented (the "Original Indenture"), between Gulf Power Company (the
"Company") and the Bank, as Trustee, (b) the Fifth Supplemental Indenture dated
as of ______, 2002 (together with the Original Indenture, herein called the
"Indenture"), between the Company and the Bank, as Trustee, (c) the Guarantee
Agreement dated as of ___________, 2002 (the "Guarantee Agreement"), between the
Company, as Guarantor and the Bank, as Trustee, (d) the Amended and Restated
Trust Agreement, dated as of __________, 2002 (the "Trust Agreement") among the
Company, the Bank, as Property Trustee, Chase Manhattan Bank USA, National
Association, as Delaware Trustee, and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ Boston, as
Administrative Trustees and (d) the Calculation Agent Agreement dated as of
__________, 2002 among the Company, the Trust and JPMorgan Chase Bank (the
"Calculation Agent Agreement"), as calculation agent (the "Calculation Agent").
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, the Guarantee
Agreement, the Trust Agreement and the Calculation Agent Agreement and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws of the State
of New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture, the Guarantee
Agreement, the Trust Agreement and the Calculation Agent Agreement, has duly
executed and delivered the Indenture, the Guarantee Agreement, the Trust
Agreement and the Calculation Agent Agreement, and, insofar as the laws
governing the trust powers of the Bank are concerned and assuming due
authorization, execution and delivery thereof by the other parties thereto, each
of the Indenture, the Guarantee Agreement, the Trust Agreement and the
Calculation Agent Agreement constitutes a legal, valid and binding agreement of
the Bank, enforceable against the Bank in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity (including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether such enforceability is considered in a proceeding in
equity or at law.
iii) the execution, delivery and performance by the Bank of
the Indenture, the Guarantee Agreement, the Trust Agreement and the Calculation
Agent Agreement do not conflict with or constitute a breach of the charter or
bylaws of the Bank.
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State of
New York having jurisdiction over the trust powers of the Bank is required in
connection with the execution and delivery by the Bank of the Indenture, the
Guarantee Agreement, the Trust Agreement or the Calculation Agent Agreement or
the performance by the Bank of its duties thereunder, except such as have been
obtained, taken or made.
We are admitted to practice 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 & ▇▇▇▇▇
Schedule VII
[Letterhead of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇]
__________ __, 200_
▇▇▇▇▇▇ Brothers Inc.,
as Representative
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
GULF POWER CAPITAL TRUST IV
Flexible Trust Preferred Securities
(Five Year Initial Fixed Rate Period)
(Liquidation Amount $1,000 Per Preferred Security)
Ladies and Gentlemen:
In connection with (i) the formation by Gulf Power Company
(the "Company") of Gulf Power Capital Trust IV (the "Trust"), a Delaware
statutory trust, pursuant to the Amended and Restated Trust Agreement dated
___________, 2002 among the Company and the trustees named therein (the "Trust
Agreement"); (ii) the Trust's issuance and sale of Trust Preferred Securities
(__________ Year Initial Fixed Rate Period) (Liquidation Amount $1,000 Per
Preferred Security) evidencing approximately a 97% undivided interest in the
assets of the Trust (the "Preferred Securities"); (iii) the Trust's issuance and
sale of Common Securities evidencing approximately a 3% undivided interest in
the assets of the Trust; (iv) the Company's issuance and sale to the Trust of
$__________ of its Series E Junior Subordinated Notes (the "Notes") pursuant to
a Subordinated Note Indenture dated as of January 1, 1997, by and between the
Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
trustee (the "Debt Trustee"), as heretofore supplemented and as further
supplemented by the Fifth Supplemental Indenture dated as of __________ __, 2002
(collectively, the "Indenture"); (v) the Agreement as to Expenses and
Liabilities dated as of __________, 2002, between the Company and the Trust (the
"Agreement as to Expenses and Liabilities); (vi) the Company's issuance of a
guarantee (the "Guarantee") of the Preferred Securities pursuant to a Guarantee
Agreement dated as of __________ 2002 (the "Guarantee Agreement") between the
Company and JPMorgan Chase Bank, as trustee (the "Guarantee Trustee"); (vii) the
Calculation Agent Agreement dated as of __________, 2002 (the "Calculation Agent
Agreement"), among the Company, the Trust and JPMorgan Chase Bank, as
calculation agent (the "Calculation Agent"); and (viii) the Remarketing
Agreement, dated as of ___________, 2002, among the Company, the Trust and
▇▇▇▇▇▇ Brothers Inc., as remarketing agent (the "Remarketing Agreement"), we
have acted as counsel to you and the other underwriters named in the Schedule I
(the "Underwriters") to the Underwriting Agreement dated ___________, 2002,
among the Company, the Trust and the Underwriters for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(6) thereof.
All capitalized terms used herein and 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 (No. 333- _______) pertaining to the
Preferred Securities (the "Registration Statement"), filed under the Securities
Act of 1933, as amended (the "Act"), and the prospectus dated June 1, 2001, as
supplemented by a final supplemental prospectus dated , which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2001 (the "Form 10-K"), the Quarterly Reports
on Form 10-Q of the Company for the quarters ended __________ and the Current
Reports on Form 8-K of the Company, dated __________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Preferred Securities and the Notes, of which we
have examined specimens), and we have made such other and further investigations
as we deemed necessary to express the opinions hereinafter set forth. In such
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such latter documents.
The Trust Agreement, the Indenture, the Guarantee Agreement,
the Remarketing Agreement, the Underwriting Agreement, the Agreement as to
Expenses and Liabilities and the Calculation Agent 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, Maine and Mississippi upon the opinion of ▇▇▇▇▇ &
Lane dated the date hereof and addressed to you and a form of which is attached
as Schedule III-A to the Underwriting Agreement, relying as to matters covered
hereby which are governed by or dependent upon the laws of the State of Georgia
upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP dated the date hereof and addressed to
you and a form of which is attached as Schedule III-B to the Underwriting
Agreement, and relying as to all matters covered hereby which are governed by or
dependent upon the laws of the State of Delaware upon the opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., dated the date hereof and addressed to you and a form of
which is attached as Schedule IV to the Underwriting Agreement, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation 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 delivery of the Notes and the Guarantee and the issuance and sale of the
Preferred Securities have been obtained; such orders are sufficient for the
issuance and delivery of the Notes and the Guarantee and the issuance and sale
of the Preferred Securities; the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities conform in all
material respects with the terms of such orders; and no other order, consent or
other authorization or approval of any Florida or United States governmental
body (other than in connection or in compliance with the provisions of the
securities or "blue sky" laws of any jurisdiction, as to which we express no
opinion) is legally required for the issuance and delivery of the Notes and the
Guarantee and the issuance and sale of the Preferred Securities in accordance
with the terms of the Underwriting Agreement.
4. Each of the Indenture and the Calculation Agent Agreement has been duly
authorized, executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt Trustee and the
Calculation Agent, respectively 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 and the Calculation Agent Agreement
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the Indenture conforms as to legal
matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and, when
authenticated by the Debt Trustee in the manner provided in the Indenture and
delivered against payment therefor, will constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms, subject to the qualifications that the enforceability of the
Company's obligations under the Notes may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law);
the Notes conform as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
6. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Guarantee 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 Guarantee Agreement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Guarantee Agreement conforms as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
7. Each of the Indenture, the Guarantee Agreement and the Trust Indenture
has been duly qualified under the Trust Indenture Act of 1939, as amended.
8. The Preferred Securities have been duly authorized by the Trust Agreement and
(subject to the terms of the Trust Agreement), when delivered to and paid for by
the Underwriters pursuant to the Underwriting Agreement, will be validly issued,
fully paid and nonassessable beneficial interests in the assets of the Trust;
and the Preferred Securities conform as to legal matters in all material
respects to the description thereof in the Final Supplemented Prospectus.
9. The Agreement as to Expenses and Liabilities has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable against the Company in accordance
with its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Agreement as to Expenses and Liabilities may be
limited by bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4,
5, 6 and 8 above. In the course of the preparation by the Company of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents, we participated in conferences with certain officers and employees of
the Company, with representatives of Deloitte & Touche 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 ___________, 2002
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 Form 10-K (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) contained,
as of its date, or contains, on the date hereof, any untrue statement therein of
a material fact or omitted, as of its date, or omits, on the date hereof, 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 or with respect to information set forth in the Final
Supplemented Prospectus under the caption "Description of the Preferred
Securities - 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 laws of the States of Delaware, Georgia, Florida, Maine and
Mississippi.
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 ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this
opinion in giving their opinions pursuant to Section 5(c) of the Underwriting
Agreement and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP may rely on this opinion in giving their
opinion pursuant to Sections 102, 302 and 904 of the Indenture, insofar as such
opinions relate to matters of New York law.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP