SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 17, 1996
GULF POWER COMPANY
(Exact name of registrant as specified in its charter)
Maine 0-2429 59-0276810
(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
500 Bayfront Parkway, Pensacola, Florida 32501
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (904) 444-6111
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On January 17, 1996, Gulf Power Company (the "Company") entered
into a Purchase Contract covering the issue and sale of $30,000,000 aggregate
principal amount of First Mortgage Bonds, 6 7/8% Series due January 1, 2026.
Said First Mortgage Bonds were registered under the Securities Act of 1933, as
amended, pursuant to the Company's shelf registration statement (Registration
Statement No. 33-50165). Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(c) Exhibits.
1 Form of Proposal for Purchase of First Mortgage
Bonds, dated January 17, 1996, between the Company
and the Purchaser named therein, with Purchase
Contract attached thereto.
4 Supplemental Indenture, dated as of January 1,
1996, between the Company and The Chase Manhattan
Bank (National Association), as Trustee.
12 Computation of ratio of earnings to fixed charges.
23 (a) Consent of Beggs & Lane.
23 (b) Consent of Arthur Andersen LLP.
26 (a) Notice of Invitation for Proposals.
26 (b) Terms and Conditions Relating to Proposals.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: January 23, 1996 GULF POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
FIRST UNION CAPITAL MARKETS CORP.
_________________________________
Name of Bidder
FORM OF PROPOSAL
For Purchase of
GULF POWER COMPANY
FIRST MORTGAGE BONDS
Dated: 1/17/96
GULF POWER COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Dear Ladies and Gentlemen:
Referring to the terms and conditions dated January 9, 1996 (the "Terms
and Conditions"), relating to proposals for the purchase of First Mortgage
Bonds (the "Bonds") of Gulf Power Company (the "Company"), and the notice
dated the date hereof (the "Notice") given by the Company pursuant thereto,
the persons, firms and corporations named in Exhibit A attached hereto (the
"Bidders") have submitted and confirm herewith the following proposal for the
purchase of $30,000,000 principal amount of the Bonds, as designated by the
Company in the Notice (the "Designated Principal Amount"):
1. The interest rate of the Bonds shall be 6 7/8% per annum. The
interest rate must be an integral multiple of .01% or 1/8 of 1%.
2. The price to be paid to the Company for the Bonds shall be
98.768422% of the Designated Principal Amount thereof, plus accrued
interest from the first day of the calendar month during which the Bonds
are issued to the date of payment and delivery, each of the Bidders
hereby offering, severally and not jointly, to purchase from the
Company, at said price and upon the terms and conditions set forth in
the form of purchase contract attached hereto as Exhibit B (the
"Purchase Contract"), the principal amount of Bonds set forth opposite
its name in Exhibit A attached hereto, or the principal amount of Bonds
to be set forth opposite its name in Exhibit A attached hereto as
provided in Section 3 of the Terms and Conditions, which together
aggregate the Designated Principal Amount of the Bonds. Exhibit A
attached hereto, when completed, is hereinafter and in the Purchase
Contract called "Exhibit A to the Form of Proposal".
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3. In consideration of the agreement of the Company set forth in
the Terms and Conditions that, subject to the provisions thereof, the
Company will accept the proposal which results in the lowest "annual
cost of money" to it for the Bonds, each of the Bidders agrees (a) that
the offer of such Bidder included in this proposal shall be irrevocable
until three hours after the time fixed for the submission of proposals,
unless sooner rejected by the Company; (b) that, if this proposal shall
be accepted in writing by the Company, such Bidder, either in person or
by the Representative(s) on its behalf, will forthwith furnish to the
Company in writing the information referred to in Section 8 of the Terms
and Conditions; and (c) that, if this proposal shall be so accepted by
the Company, the Purchase Contract shall thereupon become effective
without any separate execution thereof and shall constitute the
agreement between the Company and the Bidders and, upon performance by
the Bidders, and the Representative(s), of their obligations under
Sections 3, 4 and 8 of the Terms and Conditions, all rights of the
Company and of the Bidders shall be determined solely in accordance with
the terms thereof, subject, however, to such modifications therein
(including Exhibit A to the Form of Proposal) as may be necessary and as
are contemplated by the Terms and Conditions.
4. This proposal must be accepted or rejected by the Company in
its entirety within three hours after the time fixed for the submission
thereof.
5. This proposal may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
Each of the Bidders acknowledges receipt of a copy of the prospectus in
respect of the Bonds furnished by the Company to the Bidders pursuant to the
last paragraph of Section 5 of the Terms and Conditions.
Very truly yours,
T. RICHARD KENDRICK IV
MANAGING DIRECTOR
On behalf of and as
Representative(s)
of the persons, firms and
corporations
named in Exhibit A hereto.
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FIRST UNION CAPITAL MARKETS CORP.
Address
ONE FIRST UNION PLAZA
DC-8
CHARLOTTE, NC 28288-0600
Accepted:
GULF POWER COMPANY
By: WAYNE BOSTON
Title: Assistant Secretary
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EXHIBIT A
The names of the Bidders and the respective principal amounts of the
Bonds which they severally offer to purchase are as follows:
Name Principal Amount
FIRST UNION CAPITAL MARKETS CORP. 30,000,000
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EXHIBIT B
GULF POWER COMPANY
PURCHASE CONTRACT
For Purchase of First Mortgage Bonds of the Company
AGREEMENT made between Gulf Power Company, a corporation organized and
existing under the laws of the State of Maine ("Company"), party of the first
part, and the several persons, firms and corporations (the "Purchasers") named
as Bidders in Exhibit A to the Form of Proposal to which this agreement is
attached as Exhibit B (the "Form of Proposal"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company proposes to issue and sell the Designated Principal
Amount (as defined in the Form of Proposal) of its First Mortgage Bonds (the
"Bonds"), to be issued under and secured by the Indenture dated as of
September 1, 1941, as supplemented and as to be supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank (National
Association), as Trustee (the "Trustee"), and to bear interest at the rate per
annum specified in paragraph 1 of the Form of Proposal; and
WHEREAS, the Purchasers have authorized the person or persons signing
the Form of Proposal (the "Representative") to execute the Form of Proposal on
behalf of the respective Purchasers and to act for the respective Purchasers
in the manner provided in this agreement; and
WHEREAS, the Company has prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"),
with the Securities and Exchange Commission (the "Commission"), a registration
statement and prospectus relating to the Bonds, and such registration
statement has become effective (such registration statement, as it became
effective, including the exhibits thereto and all documents incorporated by
reference in the prospectus at such time pursuant to Item 12 of Form S-3,
being herein called the "Registration Statement"); and
WHEREAS, the prospectus referred to in the last paragraph of the Form of
Proposal (such prospectus, including all documents incorporated therein by
reference pursuant to Item 12 of Form S-3 as of the time of the acceptance of
the Form of Proposal, being herein called the "Bidding Prospectus") is to be
supplemented by a prospectus supplement (the "Prospectus Supplement"),
including certain information relating to the Purchasers, the price and the
terms of offering, the interest rate, maturity date and redemption provisions
of the Bonds (the Bidding Prospectus as supplemented by the Prospectus
Supplement being herein called the "Prospectus").
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, it is agreed between the parties as follows:
1. Purchase and Sale: Upon the basis of the warranties and
representations and on the terms and subject to the conditions herein set
forth, the Company agrees to sell to the respective Purchasers, severally and
not jointly, and the respective Purchasers, severally and not jointly, agree
to purchase from the Company, at the price specified in paragraph 2 of the
Form of Proposal, plus accrued interest from the first day of the calendar
month during which the Bonds are issued to the date of payment and delivery,
the respective principal amounts of Bonds set opposite their names in Exhibit
A to the Form of Proposal, which together aggregate the Designated Principal
Amount of the Bonds.
2. Payment and Delivery: Payment for the Bonds shall be made to the
Company or its order in federal funds or in other funds which are, as shown by
written evidence satisfactory to the Company, immediately available at the
time of purchase, at the office of Dewey Ballantine, 1301 Avenue of the
Americas, New York, New York (or at such other place as may be agreed upon by
the Representative and the Company), upon the delivery of the Bonds to the
Representative for the respective accounts of the Purchasers against receipt
therefor signed by the Representative on behalf of itself and as agent for the
other Purchasers. Such payment and delivery shall be made at 10 a.m. New York
Time on the eighth day (which shall be a full business day) after this
agreement becomes effective (or at such other time or on such other day as may
be agreed upon by the Representative and the Company), unless postponed in
accordance with the provisions of Section 7 hereof. The time at which payment
and delivery are to be made is herein sometimes called the "time of purchase".
Delivery of definitive Bonds is expected to be made in registered form
without coupons in denominations of $1,000 and multiples thereof, registered
in such name or names as the Representative may request not later than 10 a.m.
New York Time on the third business day prior to the time of purchase, or, if
no such request is received, in the names of the respective Purchasers in
denominations selected by the Company. If the Representative shall request
that any of the Bonds be registered in a name or names other than that of the
Purchaser agreeing to purchase such Bonds, such Purchaser shall pay any
transfer taxes resulting from such request. The Company agrees to make the
Bonds available for inspection by the Representative at the office of the
Trustee at least 20 hours prior to the time of purchase. In the event that it
becomes necessary to make initial delivery of the Bonds in temporary form,
such Bonds will be exchangeable at said office of the Trustee, upon request,
for definitive fully registered Bonds of authorized denominations without
charge to the holders thereof as soon as is reasonably practicable.
3. Conditions of Purchasers' Obligations: The several obligations of
the Purchasers hereunder are subject to the accuracy of the warranties and
representations on the part of the Company herein contained and to the
following other conditions:
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(a) That all legal proceedings to be taken by the Company in
connection with the issue and sale of the Bonds and the legal opinions
provided for in Sections 3(b)(1) and (2) hereof shall be satisfactory in
form and substance to Dewey Ballantine, counsel to the Purchasers.
(b) That, at the time of purchase, the Representative shall be
furnished the following opinions and letter and copies or signed
counterparts thereof for each of the Purchasers, with such changes
therein as may be agreed upon by the Company and the Representative with
the approval of Dewey Ballantine:
(1) Opinion of Beggs & Lane, of Pensacola, Florida,
general counsel for the Company, substantially in the form
attached hereto as Exhibit 1.
(2) Opinion of Troutman Sanders LLP, of Atlanta, Georgia,
counsel to the Company, substantially in the form attached hereto
as Exhibit 2.
(3) Opinion of Dewey Ballantine, of New York, New York,
substantially in the form attached hereto as Exhibit 3.
(4) Letter dated the date of payment and delivery from
Arthur Andersen LLP to the effect that: (A) they are independent
public accountants with respect to the Company within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder; (B) in their opinion, the financial
statements and schedules audited by them and incorporated by
reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the related published rules and
regulations; (C) they have performed certain limited procedures
through a specified date not more than five business days prior to
the date of such letter, namely (i) reading the minute books of
the Company; (ii) reading the unaudited financial statements, if
any, of the Company incorporated in the Prospectus and agreeing
the amounts therein with the Company's accounting records; (iii)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited financial statements, if any, incorporated
in the Prospectus (a) are in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements incorporated in the
Prospectus and (b) comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations; (iv) reading the
unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
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unaudited Ratio of Earnings to Fixed Charges set forth in the
Prospectus, which amounts shall include such amounts for the
latest period subsequent to that covered by the financial
statements incorporated by reference in the Prospectus for which
such amounts are available at the time this agreement becomes
effective; (v) reading the unaudited financial statements from
which the amounts and ratios described in (iv) were derived and
agreeing the amounts therein to the Company's accounting records;
(vi) making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding
whether (a) the unaudited amounts and ratios referred to in (iv)
above and the unaudited financial statements referred to in (v)
above are stated on a basis substantially consistent with that of
the corresponding audited amounts or ratios included or
incorporated by reference in the Prospectus and (b) as of a
specified date not more than five business days prior to the date
of delivery of such letter, there has been any change in the
capital stock or long-term debt of the Company or any decrease in
net assets as compared with amounts shown in the latest audited
balance sheet incorporated in the Prospectus, except in each case
for changes or decreases which (I) the Prospectus discloses have
occurred or may occur, (II) are occasioned by the declaration of
dividends, (III) are occasioned by draw-downs under existing
pollution control financing arrangements, (IV) are occasioned by
draw-downs and regularly scheduled payments of capitalized lease
obligations, (V) are occasioned by the purchase or redemption of
bonds or stock to satisfy mandatory or optional redemption
provisions relating thereto, or (VI) are disclosed in such letter;
(vii) reading the unaudited amounts for Operating Revenues, Income
Before Interest Charges and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed
Charges for any period subsequent to those set forth in (iv)
above, which if available shall be set forth in such letter;
(viii) reading the unaudited financial statements from which the
amounts and ratios described in (vii) above were derived and which
will be attached to such letter and agreeing the amounts therein
to the Company's accounting records; and (ix) making inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
amounts and ratios referred to in (vii) above and the unaudited
financial statements referred to in (viii) above are stated on a
basis substantially consistent with that of the corresponding
audited amounts or ratios included or incorporated by reference in
the Prospectus; and (D) reporting their findings as a result of
performing the limited procedures set forth in (C) above. It is
understood that the foregoing procedures do not constitute an
audit performed in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
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accordingly that Arthur Andersen LLP make no representations as to
the sufficiency of such procedures for the several Purchasers'
purposes.
(c) That no amendment or supplement (including the Prospectus
Supplement) to the registration statement or prospectus filed subsequent
to the time this agreement becomes effective (including any filing made
by the Company pursuant to Section 13 or 14 of the Exchange Act) shall
be unsatisfactory in form to Dewey Ballantine or shall contain
information (other than with respect to an amendment or supplement
relating solely to the activity of any Purchaser or Purchasers) which,
in the reasonable judgment of the Representative, shall materially
impair the marketability of the Bonds.
(d) That, at or before 8 p.m. New York Time on the first business
day after the date this agreement becomes effective, or at such later
time and date as the Representative may from time to time consent to in
writing or by telephone, confirmed in writing, an appropriate order or
orders of the Florida Public Service Commission and of the Commission
under the Public Utility Holding Company Act of 1935, as amended,
necessary to permit the issue and sale of the Bonds shall be in effect;
and that, prior to the time of purchase, no stop order with respect to
the effectiveness of the Registration Statement shall have been issued
under the Securities Act by the Commission or proceedings therefor
initiated or threatened.
(e) That, prior to the time of purchase, there shall have been no
material adverse change in the business, properties or financial
condition of the Company from that set forth in or contemplated by the
Prospectus, and that the Company shall, at the time of purchase, have
delivered to the Representative a certificate to such effect of an
executive officer of the Company. For the purpose of this condition,
the sale by the Company of, or its failure to sell, any issue of other
securities shall not be deemed to be such a change.
(f) That the Company shall have performed such of its obligations
under this agreement as are to be performed at or prior to the time of
purchase by the terms hereof.
4. Certain Covenants of the Company: In further consideration of the
agreements of the Purchasers herein contained, the Company covenants as
follows:
(a) As soon as practicable after this agreement becomes
effective, and in any event within the time prescribed by Rule 424 under
the Securities Act, to file the Prospectus Supplement with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
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(b) As soon as the Company is advised thereof, to advise the
Representative and confirm the advice in writing of any request made by
the Commission for amendments to the Registration Statement or
Prospectus, including any amendment to any of the documents incorporated
therein by reference pursuant to Item 12 of Form S-3, or of the issuance
of a stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat of any proceedings for that
purpose and, if such a stop order should be issued by the Commission, to
make every reasonable effort to obtain the lifting or removal thereof as
soon as possible.
(c) To deliver to the Purchasers, without charge, as soon as
practicable on or after the date this agreement becomes effective, and
from time to time thereafter during such period of time (not exceeding
nine months) after this agreement becomes effective as the Purchasers
are required by law to deliver a prospectus, as many copies of the
Prospectus (as supplemented or amended if the Company shall have made
any supplements or amendments thereto) as the Representative may
reasonably request; and, in case any Purchaser is required by law to
deliver a prospectus after the expiration of nine months after the date
this agreement becomes effective, to furnish to such Purchaser, upon
request of the Representative, at the expense of such Purchaser, a
reasonable quantity of a supplemental prospectus or of supplements to
the Prospectus complying with Section 10(a)(3) of the Securities Act.
(d) During such period of time after the date this agreement
becomes effective as the Purchasers are required by law to deliver a
prospectus, to file timely all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the Exchange Act.
(e) To furnish to the Representative, or if such Representative
consists of two or more persons to one of such persons, one copy,
certified by an officer of the Company, of the registration statement as
initially filed with the Commission, all amendments thereto and all
documents incorporated by reference in the Prospectus pursuant to Item
12 of Form S-3 as of the time of purchase (in each case, exclusive of
exhibits), and to furnish to the Representative sufficient plain copies
of said registration statement and all amendments thereto (exclusive of
exhibits) for distribution of two each, and all said documents
incorporated therein as of the time of purchase (exclusive of exhibits)
for distribution of one each, to the other Purchasers.
(f) In the event that the Purchasers constitute "underwriters"
within the meaning of Section 2(11) of the Securities Act, then, for
such period of time (not exceeding nine months) after the date this
agreement becomes effective as they are required by law to deliver a
prospectus, if any event shall have occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus is
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delivered to a purchaser, not misleading, forthwith to amend or
supplement the Prospectus by either (i) preparing and furnishing, at its
own expense, to the Purchasers and to dealers (whose names and addresses
are furnished to the Company by the Representative) to whom Bonds may
have been sold by the Representative on behalf of the Purchasers and,
upon request, to any other dealers making such request, either
amendments to the Prospectus or supplements thereto, or (ii) making an
appropriate filing pursuant to Section 13 or 14 of the Exchange Act
which would supplement or amend the Prospectus, so that the statements
in the Prospectus as so amended or supplemented will not, in the light
of the circumstances when the Prospectus is delivered to a purchaser, be
misleading.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earning statement (which need not be
audited) covering a period of at least twelve months beginning with the
first day of the month immediately following the effective date of the
Registration Statement as defined in Rule 158(c) under the Securities
Act, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(h) To use its best efforts to qualify the Bonds for offer and
sale under the securities or blue sky laws of such jurisdictions as the
Representative may designate within six months after the date this
agreement becomes effective and to pay filing fees and disbursements in
connection therewith in an amount not exceeding $3,500 in the aggregate
(including filing fees and disbursements paid or incurred prior to the
date this agreement becomes effective), provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
file a consent to service of process or to file annual reports or to
comply with any other requirements deemed by the Company to be unduly
burdensome.
(i) To pay expenses, fees and taxes (other than transfer taxes)
in connection with (1) the preparation and filing of the Registration
Statement and Prospectus, (2) the preparation, execution, filing and
recording of the new supplemental indenture pursuant to which the Bonds
are to be issued, (3) the issue and delivery of the Bonds to the
Purchasers, and (4) the furnishing of the opinions, letter and
certificate referred to in Section 3 hereof, except that the Company
shall be required to pay the fees and disbursements (other than filing
fees and disbursements referred to in paragraph (h) of this Section 4)
of Dewey Ballantine only in an event provided in paragraph (j) of this
Section 4, the Purchasers hereby agreeing to pay such fees and
disbursements in any other event and, if such fees should be less than
the amount stated by such counsel to the Representative, to repay the
Company the amount of any reduction.
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(j) If the Purchasers shall not take up and pay for the Bonds due
to the failure of the Company to comply with any of the conditions
specified in Section 3 hereof, or if this agreement shall be terminated
in accordance with the provisions of Section 7 or 8 hereof, to pay the
reasonable fees and disbursements of Dewey Ballantine, and, if the
Purchasers shall not take up and pay for the Bonds due to the failure of
the Company to comply with any of the conditions specified in Section 3
hereof, to reimburse the Purchasers for their reasonable out-of-pocket
expenses, in an amount not exceeding a total of $10,000, incurred in
connection with the financing contemplated by this agreement.
(k) On and after the date this agreement becomes effective and
through the time of purchase, without the prior written consent of the
Representative, not to issue or sell any first mortgage bonds (other
than the Bonds) or any other long-term debt of the Company having terms
and provisions substantially similar to the Bonds.
5. Warranties of and Indemnity by the Company:
(a) The Company warrants and represents to each of the Purchasers
that:
(i) The Registration Statement, when it became effective,
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading and the Bidding
Prospectus, on said date, did not contain any untrue statement of
a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; when the Prospectus
Supplement is filed with the Commission, and at the time of
purchase, the Registration Statement and the Prospectus, as they
may be amended or supplemented, will comply, or be deemed to
comply, in all material respects with the provisions of the
Securities Act and the rules and regulations of the Commission
thereunder, the Registration Statement, as it may be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and the Prospectus, as it may be amended or
supplemented, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, and all documents incorporated
therein by reference pursuant to Item 12 of Form S-3 as of such
dates complied or will comply in all material respects with the
applicable provisions of the Exchange Act and the rules and
regulations of the Commission thereunder, and, on said dates, when
read together with the Prospectus, or the Prospectus as it may be
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otherwise amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to any
Purchaser with respect to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representative on behalf
of, any Purchaser for use in the Registration Statement or the
Prospectus, or to any statements in or omissions from that part of
the Registration Statement that shall constitute the Statement of
Eligibility under the Trust Indenture Act of 1939, as amended, of
the Trustee under the Indenture.
(ii) The consummation of the transactions herein
contemplated and the performance by the Company of the terms of
this agreement will not violate any of the terms, conditions or
provisions of, or constitute a default under, any indenture or
other contract or agreement to which the Company is now a party or
the articles of incorporation or by-laws of the Company or any
order of any court or administrative agency entered in any
proceedings to which the Company is now a party.
(b) The Company agrees to indemnify and hold harmless each of the
Purchasers and each person, if any, who controls any such Purchaser
within the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act or
otherwise, and to reimburse the Purchasers and such controlling person
or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a preliminary prospectus (if used prior to the effective
date of the Registration Statement), or in the Bidding Prospectus (if
used prior to the date this agreement becomes effective), or in the
Registration Statement, or in the Prospectus or, if the Company shall
furnish to the Purchasers any amendments or any supplements to the
Prospectus, or shall make any filings pursuant to Section 13 or 14 of
the Exchange Act which are incorporated therein by reference, in the
Prospectus as so amended or supplemented (provided that, if such
Prospectus or such Prospectus as amended or supplemented is used after
the expiration of the period of time specified in Section 4(f) hereof,
it shall contain such amendments or supplements as the Company deems
necessary to comply with Section 10(a)(3) of the Securities Act), or
arise out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of or are
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based upon any such untrue statement or omission or alleged untrue
statement or omission which was made in such Registration Statement or
Prospectus in reliance upon and in conformity with information furnished
in writing to the Company by, or through the Representative on behalf
of, any Purchaser for use therein and except that this indemnity with
respect to a preliminary prospectus and the Bidding Prospectus, and with
respect to the Prospectus if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Purchaser (or of any person controlling such Purchaser) on account of
any losses, claims, damages, liabilities or actions arising from the
sale of Bonds to any person if a copy of the Prospectus (exclusive of
documents incorporated therein by reference pursuant to Item 12 of Form
S-3), as the same may then be amended or supplemented, shall not have
been sent or given by or on behalf of such Purchaser to such person with
or prior to the written confirmation of the sale involved. Each
Purchaser agrees, within ten days after the receipt by it of notice of
the commencement of any action in respect of which indemnity may be
sought by it, or by any person controlling it, from the Company on
account of its agreement contained in this Section 5(b), to notify the
Company in writing of the commencement thereof, but the omission of such
Purchaser so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Purchaser or to
such controlling person otherwise than on account of the indemnity
agreement contained in this Section 5(b). In case any such action shall
be brought against any Purchaser or any such person controlling such
Purchaser and such Purchaser shall notify the Company of the
commencement thereof, as above provided, the Company shall be entitled
to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof at its own expense.
In case the Company elects to direct such defense and select such
counsel, any Purchaser or controlling person shall have the right to
employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Purchaser or controlling
person unless the employment of such counsel has been authorized in
writing by the Company in connection with defending such action.
The Company's indemnity agreement contained in this Section 5(b),
and its covenants, warranties and representations contained in this
agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or controlling
person, and shall survive the delivery of and payment for the Bonds
hereunder.
6. Warranties of and Indemnity by Purchasers:
(a) Each Purchaser warrants and represents to the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and to each other Purchaser that the information furnished in
writing to the Company by, or through the Representative on behalf of,
-14-
<PAGE>
such Purchaser for use in the Registration Statement or the Prospectus
does not contain an untrue statement of a material fact and does not
omit to state a material fact in connection with such information
required to be stated therein or necessary to make such information not
misleading.
(b) Each Purchaser agrees to indemnify and hold harmless the
Company, its directors and such of its officers as shall have signed the
Registration Statement, and each other Purchaser and each person, if
any, who controls the Company or any such other Purchaser within the
meaning of Section 15 of the Securities Act, to the same extent and upon
the same terms as the indemnity agreement of the Company set forth in
Section 5(b) hereof, but only with respect to untrue statements or
omissions or alleged untrue statements or omissions made in the
Registration Statement or the Prospectus, or the Prospectus as amended
or supplemented, in reliance upon and in conformity with information
furnished in writing to the Company by, or through the Representative on
behalf of, such Purchaser for use therein.
The indemnity agreement on the part of each Purchaser contained in
this Section 6(b), and the warranties and representations of such
Purchaser contained in this agreement, shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Company or other Purchaser or controlling person, and shall survive the
delivery of and payment for the Bonds hereunder.
7. Substitution of Purchasers: If any Purchaser under this agreement
shall fail or refuse (whether for some reason sufficient to justify, in
accordance with the terms hereof, the termination of its obligations to
purchase or otherwise) to purchase the principal amount of the Bonds which it
has agreed to purchase, the Company shall immediately notify the
Representative, and the Representative may, within 24 hours of receipt of such
notice, procure some other responsible party or parties satisfactory to the
Company, who may include one or more of the remaining Purchasers, to purchase
or agree to purchase such principal amount of the Bonds on the terms herein
set forth; and, if the Representative shall fail to procure a satisfactory
party or parties to purchase or agree to purchase such principal amount of the
Bonds on such terms within such period after the receipt of such notice, then
the Company shall be entitled to an additional period of 24 hours within which
to procure another party or parties to purchase or agree to purchase such
principal amount of the Bonds on the terms herein set forth. In any such
case, either the Representative or the Company shall have the right to
postpone the time of purchase for a period not to exceed five full business
days from the date determined as provided in Section 2 hereof, in order that
the necessary changes in the Registration Statement and Prospectus and any
other documents and arrangements may be effected. If the Representative shall
fail to procure a satisfactory party or parties to purchase or agree to
purchase such principal amount of the Bonds, and if the Company also does not
procure another party or parties to purchase or agree to purchase such
-15-
<PAGE>
principal amount of the Bonds, as above provided, then this agreement shall
terminate. In the event of any such termination, the Company shall not be
under any liability to any Purchaser (except to the extent, if any, provided
in Section 4(j) hereof), nor shall any Purchaser (other than a Purchaser who
shall have failed or refused to purchase Bonds without some reason sufficient
to justify, in accordance with the terms hereof, its termination of its
obligations hereunder) be under any liability to the Company.
8. Termination of Agreement: This agreement may be terminated at any
time prior to the time of purchase by the Representative with the consent of
Purchasers who have agreed to purchase in the aggregate 50% or more of the
Designated Principal Amount of the Bonds, if, after this agreement becomes
effective and prior to the time of purchase, (i) trading in securities on the
New York Stock Exchange shall have been generally suspended, (ii) minimum or
maximum ranges for prices shall have been generally established on the New
York Stock Exchange by the Commission or by the New York Stock Exchange, (iii)
a general banking moratorium shall have been declared by federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of major hostilities in which the United States is involved, any declaration
of war by the United States Congress or any other substantial national or
international calamity or emergency affecting the United States, in any such
case provided for in clauses (i) through (iv) with the result that, in the
reasonable judgment of the Representative, the marketability of the Bonds
shall have been materially impaired.
If the Representative elects to terminate this agreement, as provided in
this Section 8, the Company and each other Purchaser shall be notified
promptly by the Representative by telephone, confirmed in writing. If this
agreement shall not be carried out by any Purchaser for any reason permitted
hereunder, or if the sale of the Bonds to the Purchasers as herein
contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this agreement and shall not be liable to any Purchaser or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this agreement (except that the Company shall remain liable to
the extent provided in Section 4(j) hereof) and the Purchasers (other than a
defaulting Purchaser) shall be under no liability to the Company nor be under
any liability under this agreement to one another.
9. Notices: All notices hereunder shall, unless otherwise expressly
permitted, be in writing and be delivered at or mailed to the following
addresses: if to the Purchasers or the Representative, to the Representative
at the address set forth following its signature in the Form of Proposal, and,
if to the Company, to the Company, attention Carol A. Falcone, c/o Southern
Company Services, Inc., One Wall Street, 42nd Floor, New York, N. Y. 10005,
and attention of A. E. Scarbrough, Vice President-Finance, 500 Bayfront
Parkway, Pensacola, Florida 32501.
-16-
<PAGE>
10. Parties in Interest: The agreement herein set forth has been and
is made solely for the benefit of the Purchasers and the Company, its
directors and such of its officers as shall have signed the Registration
Statement, and the controlling persons, if any, referred to in Sections 5 and
6 hereof, and their respective successors, assigns, executors and
administrators, and, subject to the provisions of Section 7 hereof, no other
person shall acquire or have any right under or by virtue of this agreement.
11. Definitions of Certain Terms: If there be two or more persons,
firms or corporations named in Exhibit A to the Form of Proposal, the term
"Purchasers", as used herein, shall be deemed to mean the several persons,
firms or corporations so named (including any substitute purchaser or
purchasers procured as provided by Section 7 hereof and the Representative
hereinafter mentioned, if so named), and the term "Representative", as used
herein, shall be deemed to mean the person or persons designated as
representative or representatives of the Purchasers by, or in the manner
authorized by, the Purchasers, who, by signing the Form of Proposal, represent
that it or they have been authorized by the Purchasers to execute the Form of
Proposal on their behalf and to act for them in the manner herein provided.
In the event that all the Purchasers execute the Form of Proposal and no one
or more of them are designated to act as representative or representatives,
then the term "Representative" shall be deemed to mean all the persons signing
the Form of Proposal. If the Representative consists of more than one person,
the Representative may act by any one thereof. All obligations of the
Purchasers hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Exhibit A to the Form of Proposal, the
term "Purchasers" and the term "Representative", as used herein, shall mean
such person, firm or corporation.
-17-
<PAGE>
EXHIBIT 1
[Letterhead of Beggs & Lane]
[Date]
as the several Purchasers under Purchase
Contract effective between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company") in
connection with the purchase by you pursuant to the Purchase Contract of $
principal amount of the Bonds, issued under the Indenture dated as of
September 1, 1941, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"), as supplemented and amended by
various indentures supplemental thereto including the Supplemental Indenture
dated as of (said Indenture, as so supplemented and amended,
being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by
the prospectus supplement dated (the "Prospectus"), filed
by the Company pursuant to Rule 424 of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Act, which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, _____, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended ___________________
and the Current Reports on Form 8-K of the Company dated ___________________
(the "Exchange Act Documents"), each as filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and the Indenture. In addition,
we have examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing (except the Bonds, of which we have examined a
<PAGE>
specimen), and we have made such other and further investigations as we deemed
necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Georgia law and with
respect to the Act, the Exchange Act, the Trust Indenture Act (as hereinafter
defined) and the Public Utility Holding Company Act of 1935, as amended, on
the opinion dated the date hereof rendered to you by Troutman Sanders LLP,
that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in the States of Florida, Georgia and Mississippi and has
due corporate authority to carry on the public utility business in which
it is engaged and to own and operate the properties used by it in such
business.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Indenture (other than the Supplemental Indenture dated as
of ______________, which is in proper form for recordation) has been
duly recorded in all counties in which the property specifically
described therein is located and the Indenture is effective to create
the lien intended to be created thereby.
4. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
-2-
<PAGE>
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
5. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
6. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
7. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
8. Except as otherwise stated under "Item 2-Properties" in the
Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, ____, the Company has good and marketable title in fee
simple to the Company's interests in the principal plants and other
important units of the Company's property therein described, and the
Indenture constitutes, as security for the Bonds, a direct first lien on
substantially all the fixed property and franchises owned by the
Company, used and useful in its public utility business, subject only to
excepted encumbrances, as therein defined, and upon the acquisition
hereafter by the Company of similar property in the States of Florida,
Georgia and Mississippi, will create such lien thereon, subject to liens
existing thereon at the time of acquisition and to the due recordation
of the Indenture in the counties in which such property is located, and
except as the enforceability of such lien may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and general principles of equity.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 5 above and in the
Prospectus in the third paragraph under the caption "Legal Opinions and
-3-
<PAGE>
Experts". In the course of the preparation by the Company of the Registration
Statement, the Prospectus and the Exchange Act Documents, we participated in
conferences with certain officers and employees of the Company, with other
counsel for the Company and with representatives of Arthur Andersen LLP.
Based upon our examination of the Registration Statement, the Prospectus and
the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Prospectus, as of , complied as to form in all
material respects with the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder and that
the Exchange Act Documents, as of their respective dates of filing with the
Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no opinion as
to the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such effective 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 Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the State Bar of Florida and we do not express any
opinion herein concerning any law other than the law of the States of Florida
and Mississippi and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
BEGGS & LANE
-4-
<PAGE>
EXHIBIT 2
[Letterhead of Troutman Sanders LLP]
[Date]
as the several Purchasers under Purchase
Contract effective between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company") in
connection with the purchase by you pursuant to the Purchase Contract of $
principal amount of the Bonds, issued under the Indenture dated as of
September 1, 1941, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"), as supplemented and amended by
various indentures supplemental thereto including the Supplemental Indenture
dated as of (said Indenture, as so supplemented and amended,
being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by
the prospectus supplement dated (the "Prospectus"), filed
by the Company pursuant to Rule 424 of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Act, which
pursuant to Form S-3 incorporates by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, _____, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended
______________________ and the Current Reports on Form 8-K of the Company
dated ___________________ (the "Exchange Act Documents"), each as filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and the
Indenture. In addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing (except the Bonds, of
<PAGE>
which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to enable us to express the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Florida and Mississippi
law upon the opinion of Beggs & Lane, referred to below, that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in the States of Florida, Georgia and Mississippi and has
due corporate authority to carry on the public utility business in which
it is engaged and to own and operate the properties used by it in such
business.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
-2-
<PAGE>
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
5. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
6. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
We are not passing upon matters relating to the lien of the Indenture on
property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the opinion, dated the date
hereof, of Beggs & Lane, general counsel to the Company.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 4 above. In the course of
the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with other counsel for the Company and
with representatives of Arthur Andersen LLP. Based upon our examination of
the Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the Exchange Act Documents and our participation
in the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Prospectus, as of
, complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents,
as of their respective dates of filing with the Commission, complied as to
form in all material respects with the relevant requirements of the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
except that in each case we express no opinion as to the financial statements
or other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents,
-3-
<PAGE>
and (ii) we have no reason to believe that the Registration Statement, as of
its effective date (including the Exchange Act Documents on file with the
Commission on such effective 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 Prospectus (including the Exchange Act Documents) contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case we express no opinion or belief with respect to the financial statements
or other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not express any
opinion herein concerning any law other than the law of the State of Georgia
and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
TROUTMAN SANDERS LLP
-4-
<PAGE>
EXHIBIT 3
[Letterhead of Dewey Ballantine]
[Date]
as the several Purchasers under Purchase
Contract effective , between
Gulf Power Company and said Purchasers (the
"Purchase Contract") for the purchase of Gulf
Power Company First Mortgage Bonds, % Series
due (the "Bonds")
c/o
Ladies and Gentlemen:
We have acted as your counsel in connection with the purchase by you
pursuant to the Purchase Contract of $ principal amount of the Bonds,
issued under the Indenture dated as of September 1, 1941, between Gulf Power
Company (the "Company") and The Chase Manhattan Bank (National Association),
as trustee (the "Trustee"), as supplemented and amended by various indentures
supplemental thereto including the Supplemental Indenture dated as of
(said Indenture, as so supplemented and amended, being hereinafter called the
"Indenture").
We have examined the Registration Statement on Form S-3 (File No. 33-
) filed by the Company under the Securities Act of 1933, as amended (the
"Act"), as it became effective under the Act (the "Registration Statement");
the Company's prospectus dated , as supplemented by the
prospectus supplement dated (the "Prospectus"), filed by the
Company pursuant to Rule 424 of the rules and regulations of the Securities
and Exchange Commission (the "Commission") under the Act, which pursuant to
Form S-3 incorporates by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, ____, the Quarterly Reports on
Form 10-Q of the Company for the quarters ended __________________ and the
Current Reports on Form 8-K of the Company dated ___________ (the "Exchange
Act Documents"), each as filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"); and the Indenture. In addition, we have
examined, and have relied as to matters of fact upon, the documents delivered
to you at the closing (except the Bonds, of which we have examined a
specimen), and we have made such other and further investigations as we deemed
necessary to enable us to express the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
<PAGE>
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
We are of the opinion, relying as to matters of Florida and Mississippi
law upon the opinion of Beggs & Lane, referred to below, and as to matters of
Georgia law upon the opinion of Troutman Sanders LLP, referred to below, that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the State of
Maine, is duly qualified to carry on its business as a foreign
corporation in the States of Florida, Georgia and Mississippi and has
due corporate authority to carry on the public utility business in which
it is engaged and to own and operate the properties used by it in such
business.
2. The Indenture has been duly authorized, executed and delivered
by the Company and duly qualified under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture and the Bonds may be limited
by (a) laws of the States of Florida, Georgia and Mississippi, where the
property covered thereby is located, affecting the remedies for the
enforcement of the security provided for in the Indenture, which laws do
not, in our opinion, make inadequate the remedies necessary for the
realization of the benefits of such security, (b) bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and (c) general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
3. The Bonds have been duly authorized, executed and issued by
the Company and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Contract and
subject to the qualifications set forth in paragraph 2 above, will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
and security of the Indenture equally and ratably with the first
mortgage bonds of the other series presently outstanding under the
Indenture.
4. The statements made in the Prospectus under the captions
"Description of New Bonds" and "Certain Terms of the New Bonds", insofar
as they purport to constitute summaries of the terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
-2-
<PAGE>
5. All orders, consents or other authorizations or approvals of
the Florida Public Service Commission and the Commission legally
required for the issuance of the Bonds have been obtained; the issuance
and the sale of the Bonds are in conformity with the terms of such
orders; and no other order, consent or other authorization or approval
of any governmental body (other than in connection or in compliance with
the provisions of the securities or "blue sky" laws of any jurisdiction,
as to which we express no opinion) is legally required for the issuance
of the Bonds by the Company or the carrying out by the Company of the
provisions of the Purchase Contract.
6. The Purchase Contract has been duly authorized, executed and
delivered by the Company.
All legal proceedings taken by the Company in connection with the
authorization and delivery of the Bonds, and the legal opinions dated the date
hereof rendered to you by Beggs & Lane and Troutman Sanders LLP, counsel for
the Company, pursuant to the Purchase Contract, are in form satisfactory to
us. Insofar as the opinions expressed herein relate to or are dependent upon
matters governed by the laws of the States of Florida, Georgia and
Mississippi, we have relied upon the aforesaid opinions of Beggs & Lane and
Troutman Sanders LLP.
We are not passing upon matters relating to the lien of the Indenture on
property now owned or hereafter acquired by the Company, the recordation or
filing of the Indenture or any related financing statements, the title of the
Company to its properties or the franchises of the Company. As to certain of
such matters there is being furnished to you the above-mentioned opinion of
Beggs & Lane.
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement, the
Prospectus or the Exchange Act Documents and take no responsibility therefor,
except as and to the extent set forth in paragraph 4 above. In the course of
the preparation by the Company of the Registration Statement, the Prospectus
and the Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with representatives of Arthur Andersen
LLP and with counsel for the Company. Based upon our examination of the
Registration Statement, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement and the Prospectus and our participation in the conferences referred
to above, (i) we are of the opinion that the Registration Statement, as of its
effective date, and the Prospectus, as of , complied as to form in
all material respects with the requirements of the Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents, as of their respective dates of filing with
the Commission, complied as to form in all material respects with the relevant
requirements of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no opinion as
-3-
<PAGE>
to the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Prospectus or
the Exchange Act Documents, and (ii) we have no reason to believe that the
Registration Statement, as of its effective date (including the Exchange Act
Documents on file with the Commission on such effective 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 Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to the
financial statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the Prospectus or the
Exchange Act Documents.
We are members of the Bar of the State of New York and we do not express
any opinion herein concerning any law other than the law of the State of New
York and the federal law of the United States.
This opinion is rendered to you in connection with the above described
transactions. This opinion may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other person, firm or
corporation without our prior written consent.
Very truly yours,
DEWEY BALLANTINE
-4-
<PAGE>
Exhibit 4
==================================================
GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK (National Association)
(Formerly The Chase Manhattan Bank, Successor by Merger to
The Chase National Bank of the City of New York)
As Trustee.
____________________
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
6 7/8% Series due January 1, 2026
____________________
Dated as of January 1, 1996
==================================================
This instrument was prepared by G. Edison Holland, Jr., Seventh
Floor, Blount Building, 3 West Garden Street, Pensacola, Florida
32501, and Thomas J. Hartland, Jr., 600 Peachtree Street, N.E.,
Suite 5200, Atlanta, Georgia 30308-2216.<PAGE>
SUPPLEMENTAL INDENTURE, dated as of January 1, 1996, made
and entered into by and between GULF POWER COMPANY, a corporation
organized and existing under the laws of the State of Maine
(hereinafter commonly referred to as the "Company"), and THE
CHASE MANHATTAN BANK (National Association), a corporation
organized and existing under the laws of the United States of
America, with its principal office in the Borough of Manhattan,
The City of New York, formerly The Chase Manhattan Bank,
successor by merger to The Chase National Bank of the City of New
York, as trustee (hereinafter commonly referred to as the
"Trustee"), as Trustee under the Indenture dated as of
September 1, 1941 between the Company and The Chase National Bank
of the City of New York, as trustee, and The Citizens & Peoples
National Bank of Pensacola, as trustee (hereinafter commonly
referred to as the "Co-Trustee"), the Trustee and the Co-Trustee
being hereinafter commonly referred to as the "Trustees",
securing bonds issued and to be issued as provided therein
(hereinafter sometimes referred to as the "Indenture").
WHEREAS the Company and the Trustees have executed and
delivered the Indenture for the purpose of securing an issue of
bonds of the 1971 Series described therein and such additional
bonds as may from time to time be issued under and in accordance
with the terms of the Indenture, the aggregate principal amount
of bonds to be secured thereby being not limited, and the
Indenture fully describes and sets forth the property conveyed
thereby and is of record in the Office of the Clerk of the
Circuit, Superior or Chancery Court of each county in the States
of Florida, Georgia and Mississippi in which this Supplemental
Indenture is to be recorded and is on file at the principal
office of the Trustee, above referred to; and
WHEREAS the Company and the Trustees, or the Trustee, as the
case may be, have executed and delivered various supplemental
indentures for the purpose, among others, of further securing
said bonds and of setting forth the terms and provisions relating
to the bonds of other series described therein, which
supplemental indentures describe and set forth additional
property conveyed thereby and are also of record in the Offices
of the Clerks of the Circuit, Superior or Chancery Courts of some
or all of the counties in the States of Florida, Georgia and
Mississippi in which this Supplemental Indenture is to be
recorded and are on file at the principal office of the Trustee,
above referred to; and
WHEREAS effective December 9, 1993, the Company and the
Trustee have accepted the resignation of the Co-Trustee pursuant
to Section 16.20 of the Indenture; and
WHEREAS the Indenture provides for the issuance of bonds
thereunder in one or more series and the Company, by appropriate
corporate action in conformity with the terms of the Indenture,
has duly determined to create a series of bonds under the
Indenture to be designated as "6 7/8% Series due January 1, 2026"<PAGE>
(hereinafter sometimes referred to as the "Forty-fourth Series"),
each of which bonds shall also bear the descriptive title "First
Mortgage Bond", the bonds of such series to bear interest at the
annual rate designated in the title thereof and to mature January
1, 2026; and
WHEREAS each of the bonds of the Forty-fourth Series is to
be substantially in the following form, to-wit:
[FORM OF BOND OF THE FORTY-FOURTH SERIES]
[FACE]
GULF POWER COMPANY
First Mortgage Bond, 6 7/8% Series Due January 1, 2026
No. $
Gulf Power Company, a Maine corporation (hereinafter called
the "Company"), for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of _________
Dollars on January 1, 2026, and to pay to the registered holder
hereof interest on said sum from the latest semi-annual interest
payment date to which interest has been paid on the bonds of this
series preceding the date hereof, unless the date hereof be an
interest payment date to which interest is being paid, in which
case from the date hereof, or unless the date hereof is prior to
July 1, 1996, in which case from January 1, 1996 (or, if this
bond is dated between the record date for any interest payment
date and such interest payment date, then from such interest
payment date, provided, however, that if the Company shall
default in payment of the interest due on such interest payment
date, then from the next preceding semi-annual interest payment
date to which interest has been paid on the bonds of this series,
or if such interest payment date is July 1, 1996, from January 1,
1996), at the rate per annum, until the principal hereof shall
have become due and payable, specified in the title of this bond,
payable on January 1 and July 1 in each year.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposes have
the same effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the
execution by the Trustee or its successor in trust under the
Indenture of the certificate endorsed hereon.
IN WITNESS WHEREOF, Gulf Power Company has caused this bond
to be executed in its name by its President or one of its Vice
Presidents by his signature or a facsimile thereof, and its
-2-<PAGE>
corporate seal or a facsimile thereof to be affixed hereto or
imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
Dated,
GULF POWER COMPANY,
By ____________________
President
Attest:
____________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee,
By ____________________
Authorized Officer
[REVERSE]
GULF POWER COMPANY
FIRST MORTGAGE BOND, 6 7/8% SERIES DUE JANUARY 1, 2026
The interest payable on any January 1 or July 1 will,
subject to certain exceptions provided in the Indenture
hereinafter mentioned, be paid to the person in whose name this
bond is registered at the close of business on the record date,
which shall be the December 15 or June 15, as the case may be,
next preceding such interest payment date, or, if such December
15 or June 15 shall be a legal holiday or a day on which banking
institutions in the Borough of Manhattan, The City of New York,
are authorized to close, the next preceding day which shall not
be a legal holiday or a day on which such institutions are so
-3-<PAGE>
authorized to close. The principal of and the premium, if any,
and interest on this bond shall be payable at the office or
agency of the Company in the Borough of Manhattan, The City of
New York, designated for that purpose, in any coin or currency of
the United States of America which at the time of payment is
legal tender for public and private debts.
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an
indenture of mortgage or deed of trust dated as of September 1,
1941, between the Company and The Chase National Bank of the City
of New York to which The Chase Manhattan Bank (now The Chase
Manhattan Bank (National Association)) is successor by merger
(hereinafter sometimes referred to as the "Trustee"), and The
Citizens & Peoples National Bank of Pensacola, as Trustees, and
indentures supplemental thereto, to which indenture and
indentures supplemental thereto (hereinafter referred to
collectively as the "Indenture") reference is hereby made for a
description of the property mortgaged and pledged, the nature and
extent of the security and the rights, duties and immunities
thereunder of the Trustee and the rights of the holders of said
bonds and of the Trustee and of the Company in respect of such
security, and the limitations on such rights. By the terms of
the Indenture the bonds to be secured thereby are issuable in
series which may vary as to date, amount, date of maturity, rate
of interest and in other respects as in the Indenture provided.
Prior to January 1, 2006, the bonds of this series may not
be redeemed by the Company at its option or by operation of the
improvement fund or the replacement provisions of the Indenture
or by the use of proceeds of released property.
On or after January 1, 2006, upon notice given by mailing
the same, by first class mail postage prepaid, not less than
thirty nor more than forty-five days prior to the date fixed for
redemption to each registered holder of a bond to be redeemed (in
whole or in part) at the last address of such holder appearing on
the registry books, any or all of the bonds of this series may be
redeemed by the Company, at its option, or by operation of
various provisions of the Indenture, at any time and from time to
time by the payment of the principal amount thereof and accrued
interest thereon to the date fixed for redemption, together (a),
if redeemed otherwise than by the operation of the improvement
fund or the replacement provisions of the Indenture and otherwise
than by the use of proceeds of released property, as more fully
set forth in the Indenture, with a premium equal to a percentage
of the principal amount thereof determined as set forth in the
tabulation below under the heading "Regular Redemption Premium",
and (b), if redeemed by the operation of the improvement fund or
the replacement provisions of the Indenture or by the use of
proceeds of released property, as more fully set forth in the
Indenture, without premium:
-4-<PAGE>
If redeemed during the twelve months' period
ending the last day of December,
Regular Redemption
Year Premium
2006 2.88%
2007 2.59%
2008 2.30%
2009 2.02%
2010 1.73%
2011 1.44%
2012 1.15%
2013 0.87%
2014 0.58%
2015 0.29%
and without premium if redeemed on or after January 1, 2016.
In case of certain defaults as specified in the Indenture,
the principal of this bond may be declared or may become due and
payable on the conditions, at the time, in the manner and with
the effect provided in the Indenture.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this bond, or for any claim
based hereon, or otherwise in respect hereof or of the Indenture,
to or against any incorporator, stockholder, director or officer,
past, present or future, as such, of the Company, or of any
predecessor or successor company, either directly or through the
Company, or such predecessor or successor company, under any
constitution or statute or rule of law, or by the enforcement of
any assessment or penalty, or otherwise, all such liability of
incorporators, stockholders, directors and officers, as such,
being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by
the terms of the Indenture.
Every bond of this series shall be dated as of the date of
authentication.
This bond is transferable by the registered owner hereof, in
person or by attorney duly authorized, at the office or agency of
the Trustee, in the Borough of Manhattan, The City of New York,
but only in the manner prescribed in the Indenture, upon the
surrender and cancellation of this bond and the payment of
charges for transfer, and upon any such transfer a new bond or
bonds of the same series and maturity date and for the same
aggregate principal amount, in authorized denominations, will be
issued to the transferee in exchange herefor. The Company and
the Trustee may deem and treat the person in whose name this bond
-5-<PAGE>
is registered as the absolute owner for the purpose of receiving
payment and for all other purposes. Bonds of this series shall
be exchangeable for bonds of other authorized denominations
having the same aggregate principal amount, in the manner and
upon the conditions prescribed in the Indenture. However,
notwithstanding the provisions of the Indenture, no charge shall
be made upon any transfer or exchange of bonds of this series
other than for any tax or taxes or other governmental charge
required to be paid by the Company.
AND WHEREAS all acts and things necessary to make the bonds,
when authenticated by the Trustee and issued as in the Indenture,
as heretofore supplemented and amended, and this Supplemental
Indenture provided, the valid, binding and legal obligations of
the Company, and to constitute the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture valid,
binding and legal instruments for the security thereof, have been
done and performed, and the creation, execution and delivery of
the Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture and the creation, execution and issue of
bonds subject to the terms hereof and of the Indenture, have in
all respects been duly authorized.
NOW, THEREFORE, in consideration of the premises, and of the
acceptance and purchase by the holders thereof of the bonds
issued and to be issued under the Indenture, and of the sum of
One Dollar duly paid by the Trustee to the Company, and of other
good and valuable considerations, the receipt whereof is hereby
acknowledged, and for the purpose of securing the due and
punctual payment of the principal of and premium, if any, and
interest on the bonds now outstanding under the Indenture, or the
Indenture as supplemented and amended, and the $30,000,000
principal amount of bonds of the Forty-fourth Series proposed to
be initially issued and all other bonds which shall be issued
under the Indenture, or the Indenture as supplemented and
amended, and for the purpose of securing the faithful performance
and observance of all covenants and conditions therein and in any
indenture supplemental thereto set forth, the Company has given,
granted, bargained, sold, transferred, assigned, hypothecated,
pledged, mortgaged, warranted, aliened and conveyed and by these
presents does give, grant, bargain, sell, transfer, assign,
hypothecate, pledge, mortgage, warrant, alien and convey unto The
Chase Manhattan Bank (National Association), as Trustee, as
provided in the Indenture, and its successor or successors in the
trust thereby and hereby created and to its or their assigns
forever, all the right, title and interest of the Company in and
to the property described in Exhibit "A" attached hereto and by
this reference made a part hereof, together (subject to the
provisions of Article X of the Indenture) with the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and does hereby confirm that the Company will not cause or
consent to a partition, either voluntary or through legal
-6-<PAGE>
proceedings, of property, whether herein described or heretofore
or hereafter acquired, in which its ownership shall be as a
tenant in common except as permitted by and in conformity with
the provisions of the Indenture and particularly of Article X
thereof.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any wise appertaining to the
premises, property, franchises and rights, or any thereof,
referred to in the foregoing granting clauses, with the reversion
and reversions, remainder and remainders and (subject to the
provisions of Article X of the Indenture) the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
and all the estate, right, title and interest and claim
whatsoever, at law as well as in equity, which the Company now
has or may hereafter acquire in and to the aforesaid premises,
property, franchises and rights and every part and parcel
thereof.
TO HAVE AND TO HOLD all said premises, property, franchises
and rights hereby conveyed, assigned, pledged or mortgaged, or
intended so to be, unto the Trustee, its successor or successors
in trust, and its or their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale, for the
equal and proportionate benefit and security of the holders of
all bonds and interest coupons now or hereafter issued under the
Indenture, as supplemented and amended, pursuant to the
provisions thereof, and for the enforcement of the payment of
said bonds and coupons when payable and the performance of and
compliance with the covenants and conditions of the Indenture, as
supplemented and amended, without any preference, distinction or
priority as to lien or otherwise of any bond or bonds over others
by reason of the difference in time of the actual issue, sale or
negotiation thereof or for any other reason whatsoever, except as
otherwise expressly provided in the Indenture, as supplemented
and amended; and so that each and every bond now or hereafter
issued thereunder shall have the same lien, and so that the
principal of and premium, if any, and interest on every such bond
shall, subject to the terms of the Indenture, as supplemented and
amended, be equally and proportionately secured thereby and
hereby, as if it had been made, executed, delivered, sold and
negotiated simultaneously with the execution and delivery of the
Indenture.
AND IT IS EXPRESSLY DECLARED that all bonds issued and
secured thereunder and hereunder are to be issued, authenticated
and delivered, and all said premises, property, franchises and
rights hereby and by the Indenture, as supplemented and amended,
conveyed, assigned, pledged or mortgaged, or intended so to be
(including all the right, title and interest of the Company in
and to any and all premises, property, franchises and rights of
-7-<PAGE>
every kind and description, real, personal and mixed, tangible
and intangible, thereafter acquired by the Company and whether or
not specifically described in the Indenture or in any indenture
supplemental thereto, except any therein expressly excepted), are
to be dealt with and disposed of, under, upon and subject to the
terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes in the Indenture, as supplemented and amended,
expressed, and it is hereby agreed as follows:
SECTION 1. There is hereby created a series of bonds
designated as hereinabove set forth (said bonds being sometimes
herein referred to as the "bonds of the Forty-fourth Series") and
the form thereof shall be substantially as hereinabove set forth.
Bonds of the Forty-fourth Series shall mature on the date
specified in the form thereof hereinabove set forth, and the
definitive bonds of such series shall be issued only as
registered bonds without coupons. Bonds of the Forty-fourth
Series shall be in such denominations as the Board of Directors
shall approve, and execution and delivery thereof to the Trustee
for authentication shall be conclusive evidence of such approval.
The serial numbers of bonds of the Forty-fourth Series shall be
such as may be approved by any officer of the Company, the
execution thereof by any such officer to be conclusive evidence
of such approval.
Bonds of the Forty-fourth Series, until the principal
thereof shall have become due and payable, shall bear interest at
the annual rate designated in the title thereof, payable
semi-annually on January 1 and July 1 in each year.
The principal of and premium, if any, and the interest on
the bonds of the Forty-fourth Series shall be payable in any coin
or currency of the United States of America which at the time of
payment is legal tender for public and private debts, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, designated for that purpose.
Bonds of the Forty-fourth Series may be transferred at the
office or agency of the Trustee, in the Borough of Manhattan, The
City of New York. Bonds of the Forty-fourth Series shall be
exchangeable for other bonds of the same series, in the manner
and upon the conditions prescribed in the Indenture, upon the
surrender of such bonds at said office or agency of the Trustee.
However, notwithstanding the provisions of Section 2.05 of the
Indenture, no charge shall be made upon any transfer or exchange
of bonds of said series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
The person in whose name any bond of the Forty-fourth Series
is registered at the close of business on any record date (as
hereinbelow defined) with respect to any interest payment date
shall be entitled to receive the interest payable on such
-8-<PAGE>
interest payment date notwithstanding the cancellation of such
bond upon any transfer or exchange thereof subsequent to the
record date and prior to such interest payment date, except if
and to the extent the Company shall default in the payment of the
interest due on such interest payment date, in which case such
defaulted interest shall be paid to the person in whose name such
bond (or any bond or bonds issued, directly or after intermediate
transactions, upon transfer or exchange or in substitution
thereof) is registered on a subsequent record date for such
payment established as hereinafter provided. A subsequent record
date may be established by the Company by notice mailed to the
holders of bonds not less than ten days preceding such record
date, which record date shall be not less than five nor more than
thirty days prior to the subsequent interest payment date. The
term "record date" as used in this Section with respect to any
regular interest payment date shall mean the December 15 or June
15, as the case may be, next preceding such interest payment
date, or, if such December 15 or June 15 shall be a legal holiday
or a day on which banking institutions in the Borough of
Manhattan, The City of New York, are authorized by law to close,
the next preceding day which shall not be a legal holiday or a
day on which such institutions are so authorized to close.
Bonds of the Forty-fourth Series shall be dated as of the
date of authentication and shall bear interest from the latest
semi-annual interest payment date to which interest has been paid
on the bonds of such series preceding the date of authentication,
unless such date of authentication be an interest payment date to
which interest is being paid on the bonds of such series, in
which case they shall bear interest from such date of
authentication, provided that bonds authenticated prior to the
first interest payment date shall bear interest from a date six
months prior to such date. However, so long as there is no
existing default in the payment of interest on such bonds, the
holder of any bond authenticated by the Trustee between the
record date for any interest payment date and such interest
payment date shall not be entitled to the payment of the interest
due on such interest payment date and shall have no claim against
the Company with respect thereto; provided, further, that if and
to the extent the Company shall default in the payment of the
interest due on such interest payment date, then any such bond
shall bear interest from the January 1 or July 1, as the case may
be, next preceding the date of such bond, to which interest has
been paid or, if the Company shall be in default with respect to
the interest due on July 1, 1996, then from January 1, 1996.
Prior to January 1, 2006, the bonds of the Forty-fourth
Series shall not be redeemable at the option of the Company, or
by the operation of Section 4 of the Supplemental Indenture dated
as of October 1, 1964 or of Section 2 of this Supplemental
Indenture or of the improvement fund provisions of any
-9-<PAGE>
supplemental indenture other than this Supplemental Indenture or
by the use of proceeds of released property.
On or after January 1, 2006, any or all of the bonds of the
Forty-fourth Series shall be redeemable at the option of the
Company, or by operation of various provisions of the Indenture,
as supplemented and amended, at any time and from time to time,
prior to maturity, upon notice given by mailing the same, by
first class mail postage prepaid, not less than thirty nor more
than forty-five days prior to the date fixed for redemption to
each registered holder of a bond of the Forty-fourth Series to be
redeemed (in whole or in part) at the last address of such holder
appearing on the registry books, at the principal amount thereof
and accrued interest thereon to the date fixed for redemption,
together (a), if redeemed otherwise than by the operation of
Section 4 of the Supplemental Indenture dated as of October 1,
1964 or of Section 2 of this Supplemental Indenture or of the
improvement fund provisions of any supplemental indenture other
than this Supplemental Indenture and otherwise than by the use of
proceeds of released property, with a regular redemption premium
equal to a percentage of the principal amount thereof determined
as set forth in the tabulation appearing in the form of the bonds
of the Forty-fourth Series hereinbefore set forth, and (b), if
redeemed by the operation of Section 4 of the Supplemental
Indenture dated as of October 1, 1964 or of Section 2 of this
Supplemental Indenture or of the improvement fund provisions of
any supplemental indenture other than this Supplemental Indenture
or by the use of proceeds of released property, either (i) with a
special redemption premium, if any, equal to a percentage of the
principal amount thereof determined as set forth in the
tabulation appearing in the form of the bonds of the Forty-fourth
Series hereinbefore set forth or (ii), if no special redemption
premium is so set forth, then without premium.
SECTION 2. The Company covenants that, so long as any bonds
of the Forty-fourth Series shall be outstanding under the
Indenture, it will, on or before June 1 in each year commencing
with June 1, 1997:
(a) deposit with the Trustee subject to the
provisions of this Section cash and/or bonds of any
series authenticated under the Indenture then
outstanding (taken at their principal amount) in an
amount equal to the "improvement fund requirement"
(which term, as used in this Section, shall mean for
any year an amount equal to one per centum (1%) of the
aggregate principal amount of bonds of the Forty-fourth
Series authenticated and delivered by the Trustee
pursuant to the provisions of Articles IV, V and VI of
the Indenture, prior to January 1 of that year, after
deducting from such aggregate principal amount the
-10-<PAGE>
principal amount of bonds of the Forty-fourth Series
which, prior to January 1 of that year, have been
deposited with the Trustee for cancellation as the
basis for the release of property or for the withdrawal
of cash representing proceeds of released property or
have been purchased or redeemed by the use of proceeds
of released property); or
(b) to the extent that it does not so deposit
cash and/or bonds, certify to the Trustee unfunded net
property additions in an amount equal to one hundred
sixty-six and two-thirds per centum (166 2/3%) of the
portion of the improvement fund requirement not so
satisfied.
The term "improvement fund certificate", as used in this
Section, shall mean an accountant's certificate filed by the
Company with the Trustee pursuant to this Section. Such
certificate may be a separate certificate or it may be combined
with an improvement fund certificate or certificates filed
pursuant to the improvement fund provisions of the Indenture or
of any other indenture or indentures supplemental thereto.
On or before the first day of June in each year, beginning
June 1, 1997, so long as any bonds of the Forty-fourth Series are
outstanding under the Indenture, the Company shall deliver to the
Trustee an improvement fund certificate showing the improvement
fund requirement for that year, the amount of cash, if any, and
the principal amount of bonds authenticated under the Indenture
then outstanding, if any, then to be deposited by the Company
with the Trustee and, if the Company elects to satisfy the
improvement fund requirement for that year in whole or in part by
the certification of unfunded net property additions, the amount,
if any, of unfunded net property additions to be certified. The
Company shall, concurrently with the delivery to the Trustee of
such certificate, deposit with the Trustee the amount of cash, if
any, and the principal amount of bonds, if any, shown in such
certificate.
No property additions shall be certified in any improvement
fund certificate pursuant to the provisions of this Section
unless there shall be delivered to the Trustee with such
certificate the applicable certificates, opinion of counsel,
instruments and cash, if any, required by paragraphs (3), (4),
(5), (7), (9) and (10) of Section 4.05 of the Indenture showing
that the Company has unfunded net property additions equal to the
amount so certified.
The Trustee shall hold any cash deposited with it under the
provisions of this Section as a part of the mortgaged and pledged
property until paid out as hereinafter provided. Any cash
deposited with the Trustee under the provisions of this Section
-11-<PAGE>
may, upon receipt by the Trustee of the written order of the
Company signed by its President or a Vice President, of a
treasurer's certificate such as is described in paragraph (2) of
Section 4.05 of the Indenture and of an opinion of counsel,
(1) be withdrawn, used or applied by the Company in
accordance with the provisions of paragraph (2), (3) or (4)
of Section 10.05 of the Indenture, except that any premium
required to be paid to purchase or redeem bonds shall be
paid out of funds held by the Trustee under this Section and
the Company shall not be required to furnish the Trustee
with additional funds for such purpose or to reimburse the
Trustee or the improvement fund for moneys so paid out.
Interest and expenses in connection with purchases or
redemptions pursuant to this Section shall be dealt with as
provided in Section 9.05 of the Indenture; or
(2) be withdrawn by the Company to the extent of sixty
per centum (60%) of the amount of unfunded net property
additions certified to the Trustee for such purpose, but
only upon receipt by the Trustee of the applicable
certificates, opinion of counsel, instruments and cash, if
any, required by paragraphs (3), (4), (5), (7), (9) and (10)
of Section 4.05 of the Indenture, showing that the Company
has unfunded net property additions equal to the amount so
certified.
Bonds deposited with the Trustee pursuant to this Section,
or purchased or redeemed by the use of cash deposited pursuant to
this Section, shall be cancelled and shall not be thereafter made
the basis for the authentication of bonds, the withdrawal, use or
application of cash, or the release of property, under any of the
provisions of the Indenture, or thereafter used to satisfy the
requirements of this Section or of any other improvement fund
provided for in the Indenture or in any indenture supplemental
thereto or to satisfy any replacement deficit pursuant to Section
4 of the Supplemental Indenture dated as of October 1, 1964.
To the extent that unfunded net property additions are
certified to the Trustee to satisfy the improvement fund
requirement for any year in whole or in part or as a basis for
the withdrawal of cash deposited with the Trustee under the
provisions of this Section, the amount of such unfunded net
property additions shall thereafter be deducted in computing the
amount of unfunded net property additions under Section 1.11 of
the Indenture and in computing gross property additions under
Section 7.07 of the Indenture.
SECTION 3. The Company covenants that the provisions of
Section 4 of the Supplemental Indenture dated as of October 1,
1964, which are to remain in effect so long as any bonds of the
Tenth Series shall be outstanding under the Indenture, shall
-12-<PAGE>
remain in full force and effect so long as any bonds of the
Forty-fourth Series shall be outstanding under the Indenture.
The Company covenants that it will not, in any calendar year
subsequent to 2005, redeem any bonds of the Forty-fourth Series
through the operation of Section 4 of the Supplemental Indenture
dated as of October 1, 1964 or this Section in a principal amount
that would exceed one per centum (1%) of the aggregate principal
amount of bonds of the Forty-fourth Series initially
authenticated and delivered under this Supplemental Indenture.
SECTION 4. The Company covenants that, so long as any bonds
of the Forty-fourth Series shall be outstanding under the
Indenture, it will not declare or pay any dividends, or make any
other distributions (except (a) dividends payable or
distributions made in shares of common stock of the Company and
(b) dividends payable in cash in cases where, concurrently with
the payment of the dividend, an amount in cash equal to the
dividend is received by the Company as a capital contribution or
as the proceeds of the issue and sale of shares of its common
stock), on or in respect of its common stock, or purchase or
otherwise acquire for a consideration any shares of its common
stock, if the aggregate of such dividends, distributions and
consideration for purchase or other acquisition of shares of its
common stock after December 31, 1995, shall exceed
(i) the earned surplus of the Company accumulated
after December 31, 1995 (determined in accordance with
generally accepted accounting principles and without giving
effect to charges to earned surplus on account of such
dividends, distributions or acquisitions or on account of
the disposition of any amounts which may then be classified
by the Company on its books as amounts in excess of the
original cost of utility plant or to charges or credits to
earned surplus on account of items inherent in the balance
sheet at December 31, 1995), plus
(ii) the earned surplus of the Company accumulated
prior to January 1, 1996 in an amount not exceeding
$55,500,000, plus
(iii) such additional amount as shall be authorized or
approved, upon application by the Company, by the Securities
and Exchange Commission, or by any successor commission
thereto, under the Public Utility Holding Company Act of
1935, as amended.
For the purposes of this Section, in determining the earned
surplus of the Company accumulated after December 31, 1995, there
shall be deducted the dividends accruing subsequent to December
31, 1995 on preferred stock of the Company and the total amount,
if any, by which the charges to income or earned surplus since
-13-<PAGE>
December 31, 1995 as provision for depreciation of the mortgaged
and pledged property (other than specially classified property)
shall have been less than the sum of the amounts equal to the
product of the applicable percentage (as defined in Section 4 of
the Supplemental Indenture dated as of October 1, 1964) and the
mathematical average of the amounts of depreciable property (as
defined in said Section 4) at the opening of business on the
first day and at the close of business on the last day of each
calendar year (and, proportionately, of each period of months
which is less than a calendar year) subsequent to December 31,
1995 included in the period for which earned surplus is being
determined. The term "consideration", as used in this Section,
shall mean the cash or fair value if the consideration be other
than cash, and the term "provision for depreciation", as used in
this Section, shall not be deemed to include provision for the
amortization of any amounts classified by the Company on its
books as amounts in excess of the original cost of utility plant.
SECTION 5. As supplemented by this Supplemental Indenture,
the Indenture, as heretofore supplemented and amended, is in all
respects ratified and confirmed and the Indenture, as heretofore
supplemented and amended, and this Supplemental Indenture shall
be read, taken and construed as one and the same instrument.
SECTION 6. Nothing in this Supplemental Indenture contained
shall, or shall be construed to, confer upon any person other
than a holder of bonds issued under the Indenture, the Company
and the Trustee any right or interest to avail himself of any
benefit under any provision of the Indenture, as heretofore
supplemented and amended, or of this Supplemental Indenture.
SECTION 7. The Trustee assumes no responsibility for or in
respect of the validity or sufficiency of this Supplemental
Indenture or the due execution hereof by the Company or for or in
respect of the recitals and statements contained herein, all of
which recitals and statements are made solely by the Company.
SECTION 8. This Supplemental Indenture may be executed in
several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the
same instrument.
-14-<PAGE>
IN WITNESS WHEREOF, said Gulf Power Company has caused this
Supplemental Indenture to be executed in its corporate name by
its President or one of its Vice Presidents and its corporate
seal to be hereunto affixed and to be attested by its Secretary
or one of its Assistant Secretaries, and said The Chase Manhattan
Bank (National Association), as Trustee, has caused this
Supplemental Indenture to be executed in its corporate name by
one of its Vice Presidents and its corporate seal to be hereunto
affixed and to be attested by one of its Assistant Secretaries or
one of its Trust Officers, in several counterparts, all as of the
day and year first above written.
GULF POWER COMPANY
[SEAL] By:___________________________
A. E. Scarbrough
Vice President
500 Bayfront Parkway
Pensacola, Florida 32501
Attest:
__________________________
Warren E. Tate, Secretary
500 Bayfront Parkway
Pensacola, Florida 32501
Signed, sealed and delivered
this 22nd day of January, 1996
by GULF POWER COMPANY,
in the County of Escambia,
State of Florida, in the
presence of:
__________________________
Linda Malone
__________________________
Valerie Blackmon<PAGE>
THE CHASE MANHATTAN BANK
(National Association), as
Trustee
By:___________________________
Valerie Dunbar
Vice President
4 Chase Metrotech Center
Brooklyn, New York 11245
Attest:
__________________________
Janet Robinson
Corporate Trust Officer
4 Chase Metrotech Center
Brooklyn, New York 11245
Signed, sealed and delivered
this 23rd day of January 1996
by THE CHASE MANHATTAN BANK
(National Association) in
the presence of:
__________________________
Deirdra N. Ross
__________________________
Della K. Benjamin<PAGE>
STATE OF FLORIDA )
)
COUNTY OF ESCAMBIA )
The foregoing instrument was acknowledged before me this
22nd day of January, 1996, by A. E. Scarbrough, Vice President of
GULF POWER COMPANY, a Maine corporation, on behalf of the
corporation. He is personally known to me and did take an oath.
___________________________
Candace Klinglesmith
Notary Public - State of Florida
County of Escambia
[NOTARIAL SEAL] My Commission Expires: 5/18/99
Commission No.: CC 446149<PAGE>
STATE OF NEW YORK )
)
COUNTY OF KINGS )
The foregoing instrument was acknowledged before me this
23rd day of January, 1996, by Valerie Dunbar, a Vice President
of THE CHASE MANHATTAN BANK (National Association), a United
States corporation, on behalf of the corporation. She is
personally known to me and did take an oath.
_____________________________
Margaret M. Price
Notary Public
State of New York
[NOTARIAL SEAL] No. 24-4980599
Qualified in Kings County
Commission Expires 4/22/97<PAGE>
<TABLE>
Exhibit 12
1/19/96
GULF POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1994
and the twelve months ended December 31, 1995
Twelve
Months
Ended
Year ended December 31, December 31,
1990 1991 1992 1993 1994 1995
-------------------------------Thousands of Dollars-------------------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
<S> <C> <C> <C> <C> <C> <C>
Income Before Interest Charges $ 91,083 $ 107,854 $ 98,422 $ 96,088 $ 93,407 $ 92,693
Federal and state income taxes 21,640 36,181 28,569 28,304 40,848 24,871
Deferred income taxes, net 1,837 (3,392) 3,322 5,347 (6,986) 9,315
Deferred investment tax credits - - - - - -
AFUDC - Debt funds (1) 95 46 454 656 187
----------- ---------- ----------- ----------- ----------- -----------
Earnings as defined $ 114,559 $ 140,738 $ 130,359 $ 130,193 $ 127,925 $ 127,066
=========== ========== =========== =========== =========== ===========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 43,215 $ 41,665 $ 35,792 $ 31,344 $ 27,124 $ 23,294
Interest on interim obligations 693 280 1,041 870 1,509 2,931
Amort of debt disc, premium and
expense, net 603 699 1,032 1,412 1,834 2,014
Other interest charges 2,422 2,272 1,410 2,877 2,442 1,674
----------- ---------- ----------- ----------- ----------- -----------
Fixed charges as defined $ 46,933 $ 44,916 $ 39,275 $ 36,503 $ 32,909 $ 29,913
=========== ========== =========== =========== =========== ===========
RATIO OF EARNINGS TO FIXED CHARGES 2.44 3.13 3.32 3.57 3.89 4.25
==== ==== ==== ==== ==== ====
</TABLE>
Exhibit 23(a)
BEGGS & LANE
POST OFFICE BOX 12950
PENSACOLA, FLORIDA 32576-2950
(904) 432-2451
January 23, 1996
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Ladies and Gentlemen:
We hereby consent to the reference to our firm under the caption "Legal
Opinions and Experts" in the Prospectus Supplement of Gulf Power Company (the
"Company") dated January 17, 1996, relating to $30,000,000 aggregate principal
amount of First Mortgage Bonds, 6 7/8% Series due January 1, 2026, and to the
filing hereof with the Securities and Exchange Commission as an exhibit to the
Company's Current Report on Form 8-K dated January 17, 1996.
Very truly yours,
/s/Beggs & Lane
Exhibit 23(b)
ARTHUR ANDERSEN LLP
Gulf Power Company:
As independent public accountants, we hereby consent to the reference
to our firm under the caption "Legal Opinions and Experts" in the Prospectus
Supplement of Gulf Power Company dated January 17, 1996.
/s/Arthur Andersen LLP
January 23, 1996
Exhibit 26(a)
GULF POWER COMPANY
____________
NOTICE OF INVITATION FOR PROPOSALS
FOR THE PURCHASE OF FIRST MORTGAGE BONDS
AND CLASS A PREFERRED STOCK
GULF POWER COMPANY is inviting proposals for the purchase from it of its
First Mortgage Bonds and Class A Preferred Stock, Cumulative, Par Value $10
Per Share (Stated Capital $25 Per Share), aggregating up to $230,500,000 in
principal amount or stated capital, as the case may be. The Bonds and the
Stock each may be issued and sold by the Company in one or more series.
Proposals are to be submitted to the Company in accordance with such
procedures and at such time or times on such day or days as shall be
designated by the Company by notice to prospective bidders in writing or by
telephone, confirmed in writing, as provided in the terms and conditions
relating to proposals. Such notice or notices will also designate the
principal amount of Bonds or the number of shares of Stock for which proposals
are to be submitted and the term of the Bonds, which shall be not more than 40
years. Copies of a prospectus relating to the Bonds and the Stock and of the
terms and conditions relating to proposals for the purchase of the Bonds and
the Stock may be obtained at the office of Southern Company Services, Inc.,
One Wall Street, 42nd Floor, New York, N.Y. Proposals will be considered only
from persons who have received copies of such prospectus and only if made in
accordance with and subject to such terms and conditions and any notice given
by the Company pursuant thereto. Prior to the acceptance of any bid, the
bidder will be furnished a copy of a prospectus which meets the requirements
of Section 10(a) of the Securities Act of 1933 at that time.
GULF POWER COMPANY
By TRAVIS J. BOWDEN
President and Chief Executive Officer
Dated: January 9, 1996.
Exhibit 26(b)
GULF POWER COMPANY
_____________________________
TERMS AND CONDITIONS
Relating to Proposals for the Purchase of
First Mortgage Bonds and Class A Preferred Stock
January 9, 1996
GULF POWER COMPANY (the "Company") hereby invites proposals, subject to
the terms and conditions hereof, for the purchase from it of its First
Mortgage Bonds, to mature on a date or dates to be determined as provided in
Section 4 hereof, and Class A Preferred Stock (Par Value $10 Per Share, Stated
Capital $25 Per Share), aggregating up to $230,500,000 in principal amount or
stated capital, as the case may be. Such First Mortgage Bonds and such Class
A Preferred Stock (collectively, the "Securities") each may be issued and sold
by the Company in one or more series. As used herein, the terms "Bonds" and
"Stock" mean the First Mortgage Bonds or Class A Preferred Stock of each such
series. A brief summary of the terms of the Securities is contained in the
Registration Statement and Prospectus referred to below.
1. INFORMATION RESPECTING THE COMPANY AND
THE SECURITIES
Prospective bidders may examine, at the office of Southern Company
Services, Inc., One Wall Street, 42nd Floor, New York, N.Y. 10005, at any
time during business hours, the following:
(a) the form of proposed Supplemental Indenture, between the Company and
The Chase Manhattan Bank (National Association), New York, New York, as
Trustee, under which the Bonds are to be issued and secured;
(b) the form of the proposed amendment to the Company's articles of
incorporation creating the Stock;
(c) the Registration Statement (including exhibits) with respect to the
Securities, in the form in which it has become effective, and the related
Prospectus (including the documents incorporated therein by reference pursuant
to Item 12 of Form S-3);
(d) the separate forms of proposal, to be used by bidders in offering to
purchase the Bonds and the Stock (each a "Form of Proposal"), which include
the forms of contract for the purchase of the Bonds and the Stock (each a
"Purchase Contract");
(e) the form of questionnaire, to be used by prospective bidders in
furnishing information to the Company and the Trustee and, in the case of a
group of bidders, in designating the Representative of the members of such
group, referred to in Section 2 hereof;
<PAGE>
(f) the statement on Form U-1 (including exhibits) as filed with the
Securities and Exchange Commission under the Public Utility Holding Company
Act of 1935, as amended, with respect to the Securities, and the order or
orders of the Securities and Exchange Commission with respect thereto;
(g) the order or orders of the Florida Public Service Commission with
respect to the issuance of the Securities; and
(h) memorandum by Dewey Ballantine (referred to in Section 9 hereof)
with respect to the necessity for the qualification of the Securities for sale
under the securities or "blue sky" laws of various jurisdictions.
Copies of said documents in reasonable quantities (except certain
exhibits to the Registration Statement and statement on Form U-1) will be
supplied on request, so long as available, to prospective bidders. The
Company reserves the right to amend or supplement such Registration Statement,
Prospectus (including the documents incorporated therein by reference pursuant
to Item 12 of Form S-3) and statement on Form U-1, and to make changes in the
form of any documents relating to the issuance of the Securities. The Company
will furnish copies of such amendments, supplements or changes and of any
filing pursuant to Section 13 or 14 of the Securities Exchange Act of 1934, as
amended, to Dewey Ballantine (referred to in Section 9 hereof) and, on
request, to any prospective bidder who shall have furnished a questionnaire to
the Company as provided in Section 2 hereof, or to the Representative of any
group of prospective bidders designated as provided in Section 2 hereof.
2. INFORMATION RESPECTING THE BIDDERS
TO BE FURNISHED THE COMPANY
No proposal will be considered unless the bidder (or, in the case of a
group of bidders, each bidder) shall have furnished to the Company in
triplicate, at the office of Southern Company Services, Inc., One Wall Street,
42nd Floor, New York, N.Y. 10005, not less than two hours prior to the time
for submission of proposals, the form of questionnaire referred to above,
properly filled out and signed. The Company, however, reserves the right to
waive any irregularity in any questionnaire and to extend, either generally or
in specific instances, the time for furnishing questionnaires and to permit
the furnishing of information required by the form of questionnaire by
facsimile transmission or other means of communication satisfactory to it.
Notwithstanding the furnishing of such questionnaires to the Company, any
prospective bidder or group of prospective bidders may thereafter determine
not to bid, or any of the several members of a group may withdraw therefrom
and may thereafter determine not to bid or determine to bid as a member of
some other group. One or more additional members may be included in a group,
with the consent of the Company, after the time (or any extended time) for
furnishing questionnaires, if the information required by the form of
questionnaire as to each such additional member is furnished to the Company,
at or before the time fixed by the Company for such purpose, by means of a
-2-
<PAGE>
questionnaire properly filled out and signed or by such other means as the
Company may have approved for such purpose.
In the case of a proposal by a group of bidders, the several bidders in
the group shall act through a duly authorized representative or
representatives (the "Representative"), who may be included in such group, and
who shall be designated by each member of such group in, or in the manner
authorized by, the form of questionnaire furnished by such member. In case
the Representative so designated consists of two or more persons, the Company
shall be entitled to assume in all matters contemplated hereby that any one of
such persons is fully authorized to act on behalf of the Representative.
3. CONTENTS OF PROPOSALS
Each proposal must be for the purchase of all the Bonds or Stock, as the
case may be, designated by the Company as provided in Section 4 hereof and may
be made by a single bidder or by a group of bidders. In case the proposal of
a group of bidders is accepted in writing by the Company, the obligations of
the members of the group shall be several, and not joint, to purchase the
respective principal amounts of the Bonds or numbers of shares of Stock, as
the case may be, indicated in the proposal. No bidder (including in such term
for the purpose of this restriction any and all affiliates of a specified
bidder) may submit or participate in more than one proposal for the purchase
of a particular series of the Securities.
Each proposal for the purchase of Bonds shall specify the interest rate
(which shall be an integral multiple of .01% or 1/8 of 1%) and the price
(exclusive of accrued interest) to be paid to the Company for the Bonds (which
shall not be less than 98%, nor more than 101 3/4%, of the principal amount of
the Bonds proposed to be purchased). Accrued interest from the first day of
the calendar month during which the Bonds are issued to the date of payment
and delivery also will be paid to the Company by the purchaser or purchasers.
Each proposal for the purchase of Stock shall specify (a) the annual
dividend rate (which shall be an integral multiple of .01%) or, if the Company
shall have given notice as provided in Section 4 hereof that the Stock will
have an adjustable dividend rate, the Applicable Rate Adjustment (hereinafter
defined), (b) the price to be paid to the Company for the Stock (which shall
be not less than 100% nor more than 102% of the stated capital per share),
which shall also be the price (exclusive of accrued dividends, if any) at
which the Stock shall be initially offered to the public, and (c) the amount
per share to be paid by the Company as compensation to the Representative for
the accounts of the respective purchasers under the Purchase Contract for
their services in purchasing and making a public offering of the Stock. The
"Applicable Rate Adjustment" (which shall be an integral multiple of .01%) is
the premium or discount to be used in calculating the Applicable Rate (as
defined in a supplement to the Prospectus with respect to the Securities) from
time to time in effect if the Stock will have an adjustable dividend rate.
-3-
<PAGE>
A proposal confirmed in writing as provided in Section 4 hereof on
behalf of a group of bidders shall give the names of the members in the group
but may, at the time of submission, omit the amounts or numbers of Securities
to be purchased by the members of such group; but, in the case of such
omission, the Representative, on behalf of the successful bidders, shall, and
by the submission of such proposal agrees to, insert promptly in Exhibit A to
the Form of Proposal, prior to its acceptance in writing by the Company and in
any event within one hour after the time fixed for the submission of
proposals, the respective amounts or numbers of Securities to be purchased
severally by such bidders, all with the same force and effect as if the same
had been included in such proposal at the time of the submission thereof.
The Representative submitting a successful proposal may, forthwith upon
discovery, correct any error which it has made in the proposal in specifying
the bidders or the amount or number of Securities to be purchased by any
bidder or bidders at a different amount or number than authorized by such
bidder or bidders; and if, after all such corrections, a proposal is accepted
which provides for the purchase of less than all or more than all of the
Securities, the Representative submitting such proposal shall be deemed to
have increased or decreased, as the case may be, to the extent of the
discrepancy, the amount or number of Securities offered to be purchased by it.
In case such Representative consists of two or more persons, such increase or
decrease in the amount or number of Securities shall be allocated between or
among them as they shall agree; provided that, if there shall be no such
agreement, then such increase or decrease shall be allocated between or among
them in proportion to the amount or number of Securities set forth opposite
their respective names in Exhibit A attached to the Form of Proposal. If in
the case of a decrease the discrepancy is greater than the amount or number of
Securities offered to be purchased by the Representative, then to the extent
that the discrepancy is greater than such amount or number, the amount or
number of Securities offered to be purchased by each other bidder shall be
proportionately reduced. Any correction or adjustment in the amount or number
of Securities or in the specification of any bidder made or provided for
hereunder shall, for all purposes of the Purchase Contract, be or be deemed to
have been reflected in Exhibit A attached to the Form of Proposal.
4. SUBMISSION OF PROPOSALS
All proposals must be submitted to the Company in accordance with such
procedures and at such time or times on such day or days as shall be
designated by the Company by notice in writing or by telephone, confirmed in
writing. The Company in its discretion may, but will not be obligated to,
give any such notice to any prospective bidder who shall have furnished a
questionnaire to the Company as provided in Section 2 hereof, or to the
Representative of any group of prospective bidders designated as provided in
Section 2 hereof, or to any other prospective bidders. The Company shall
designate in each such notice the principal amount of Bonds or the number of
shares of Stock, as the case may be, for which proposals are to be submitted
at such time. Each such notice with respect to Bonds will also designate the
-4-
<PAGE>
term thereof, which shall be not more than 40 years. Each such notice with
respect to Stock also will state whether there will be any sinking or purchase
fund therefor and, if so, the terms and conditions thereof; and whether the
Stock will have an adjustable dividend rate and, if so, (a) the minimum and
maximum dividend rates, (b) the "Base Rate" to be used in calculating the
"Initial Dividend Rate" and (c) the date through which the "Initial Dividend
Rate" shall be in effect. In the event that the Company shall give notice
that the Stock will have an adjustable dividend rate, the "Initial Dividend
Rate", applicable only through the date designated by the Company in such
notice, shall be the "Base Rate" so designated plus or minus the Applicable
Rate Adjustment specified in the successful proposal.
All proposals must be confirmed in writing on the appropriate Form of
Proposal, signed by the Representative on behalf of the members of a group of
bidders, or in the case of a single bidder by such bidder with appropriate
changes in the text of the Form of Proposal.
The Company reserves the right in its discretion from time to time to
postpone any time for submission of proposals designated as provided herein.
5. ACCEPTANCE OR REJECTION OF PROPOSALS
All proposals will be received by the Company in accordance with the
procedures and at the time or times designated as provided in Section 4
hereof. Within three hours after each time designated for the submission of
proposals, the Company (subject to the provisions of the next following
paragraph) will by announcement accept the proposal which results in the
lowest "annual cost of money" to it for the Bonds or Stock, as the case may
be, determined by the Company in accordance with the formulae set forth in
Section 6 hereof, and any proposal not so accepted within such time shall be
deemed to have been rejected. Each proposal will be accepted or rejected in
its entirety. In case the Company shall receive two or more proposals
resulting in an identical lowest "annual cost of money" for the Bonds or
Stock, as the case may be, the Company (subject to the provisions of the next
following paragraph) will forthwith afford to the bidders making such
identical proposals an opportunity to improve their bids. Thereupon, if no
improved bid shall be made, or if two or more proposals again result in an
identical lowest "annual cost of money" for the Bonds or Stock, as the case
may be, the Company may accept any one of such proposals in its discretion.
If in the case of identical proposals a bid is not being improved, the
proposal submitted by the bidder or group of bidders making such proposal need
not be resubmitted to be considered.
The Company reserves the right (a) to reject all proposals at or after
the submission thereof, and (b) to reject the proposal of any bidder or of any
group of bidders (i) if such bidder or any member of such group of bidders is
in such relationship with The Chase Manhattan Bank (National Association) or
its parent, The Chase Manhattan Corporation, as would disqualify said bank
from acting as Trustee under the Company's Indenture dated as of September 1,
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1941, as supplemented, if the proposal of such bidder or group of bidders
should be accepted; (ii) if the Company, in the opinion of its counsel, may
not lawfully sell the Bonds or Stock, as the case may be, to such bidder or to
any member of such group of bidders and, in either of such events in the case
of a group of bidders, if within one hour after the time at which the bids are
required to be submitted, the member or members of such group causing such
disqualification or illegality have not withdrawn from the group and the
remaining members, including substituted members, if any, have not agreed to
purchase the Bonds or Stock, as the case may be, which such withdrawing member
or members had proposed to purchase; (iii) if, in the opinion of the Company,
such bidder or group of bidders would not be able to comply with the terms of
the Purchase Contract if such proposal were accepted; or (iv) if, in the
opinion of counsel for the Company, the Company would not be able to comply
with the terms of the Purchase Contract if such proposal were accepted. The
proposal of any bidder or group of bidders rejected by the Company by reason
of clause (b) of this paragraph shall be disregarded solely for the purpose of
determining the proposal which results in the lowest "annual cost of money"
for the Bonds or Stock, as the case may be.
Prior to the acceptance by the Company of any proposal, the bidder or
bidders thereunder will be furnished a copy of a prospectus relating to the
Securities which meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended, at that time.
6. DETERMINATION OF "ANNUAL COST OF MONEY"
The "annual cost of money" to the Company for the Securities will be
determined by the Company, such determination by the Company to be final, as
follows:
The "annual cost of money" with respect to each proposal for the
purchase of Bonds will be determined as twice the semi-annual rate necessary
to discount the semi-annual debt service payments (interest or interest and
principal, as due) to amounts which in the aggregate equal the purchase price
for the Bonds, exclusive of accrued interest. For this purpose the entire
principal amount of the Bonds shall be deemed to remain outstanding during the
term thereof designated by the Company as provided in Section 4 hereof. The
"annual cost of money" for each bid will be expressed as a percentage and will
be rounded to the fourth decimal place.
The "annual cost of money" with respect to each proposal for the
purchase of Stock shall be determined by dividing the annual dollar amount of
the dividend based upon the dividend rate specified in such proposal (or, if
the Stock will have an adjustable dividend rate, the annual dollar amount of
the dividend based upon a rate equal to the "Base Rate" designated by the
Company plus or minus the Applicable Rate Adjustment specified in such
proposal) by the price per share specified in such proposal to be paid to the
Company after deducting the compensation per share to be paid by the Company.
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7. DETERMINATION OF REDEMPTION PROVISIONS
As soon as practicable after the acceptance in writing of a successful
proposal for Bonds, the premiums payable upon redemption of the Bonds will be
determined by the Company, such determination by the Company to be final, as
follows:
(a) The term "redemption period" shall mean the twelve months'
period beginning on the first day of the calendar month during which the
Bonds are issued, beginning with the calendar year during which the
Bonds are issued, and ending on the last day of the preceding calendar
month of the next succeeding calendar year.
(b) The regular redemption price for the first redemption period
shall be the initial public offering price of the Bonds (stated as a
percentage of their principal amount) plus a percentage of their
principal amount equal to the interest rate of the Bonds, such
redemption price being hereinafter referred to as the "initial
redemption price"; and for each redemption period thereafter, the
regular redemption price, before any adjustment pursuant to paragraph
(d) below, shall be the initial redemption price decreased for each one
of such redemption periods by an amount equal to the Applicable Fraction
(as defined below) of the excess of the initial redemption price over
the principal amount until the redemption period, if any, for which the
regular redemption price shall be reduced to the principal amount of the
Bonds; provided that, if the regular redemption price for any redemption
period as so calculated would be less than the special redemption price
for the same redemption period calculated as hereinafter provided
(except for any redemption period for which the regular redemption price
would be reduced to the principal amount of the Bonds), then the regular
redemption price for such period shall be increased to and shall be the
same as the special redemption price for such period; in each case,
together with accrued interest to the date fixed for redemption;
provided, however, that, except as the Company may otherwise specify by
notice, none of the Bonds shall be redeemed at a regular redemption
price prior to a date five years from the first day of the calendar
month during which the Bonds are issued if such redemption is for the
purpose or in anticipation of refunding such Bond through the use,
directly or indirectly, of funds borrowed by the Company at an effective
interest cost to the Company (computed in accordance with generally
accepted financial practice) of less than the effective interest cost to
the Company of the Bonds. The term "Applicable Fraction", as used
herein, means a fraction the numerator of which is one and the
denominator of which is the lesser of (i) 20 and (ii) the term of the
Bonds minus three; provided, however, that the denominator shall never
be less than four.
(c) The special redemption price for any redemption period shall
be such amount as will produce a yield from the first day of the period
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to the date of maturity which will be equal to the yield to maturity
calculated on the initial public offering price, a term equal to the
term of the Bonds and the interest rate of the Bonds; provided that, if
the yield to maturity, as so computed, does not result in a multiple of
1/100th of 1%, it shall be reduced to the next lower such multiple; and
except that, for any redemption period for which the regular redemption
price shall be the principal amount of the Bonds, the special redemption
price for such period shall likewise be the principal amount of the
Bonds; and except that, if the initial public offering price of the
Bonds is the principal amount thereof or less, the special redemption
price during all redemption periods shall be the principal amount of the
Bonds; in each case, together with accrued interest to the date fixed
for redemption.
(d) For any period in which the excess of the redemption price
over the principal amount is a multiple of 1/100th of 1% (determined by
expressing the redemption price as a percentage and rounding to the
fourth decimal place), the excess shall be the redemption premium; for
each other period the excess increased to the next higher such multiple
of 1/100th of 1% shall be the redemption premium; provided that the
special redemption price shall never be more than the greater of the
principal amount of the Bonds or the initial public offering price of
the Bonds.
The initial public offering price of the Bonds for the purpose of the
above determinations shall be the price (exclusive of accrued interest) at
which the Bonds are to be initially offered for sale to the public by the
successful bidder or bidders as set forth in the Prospectus Supplement to be
prepared following the acceptance of a successful bid; provided, however, that
in the event the successful bidder or bidders shall specify at the time of
acceptance of the successful bid that they do not intend to make an immediate
public offering of the Bonds, the initial public offering price shall, for
this purpose, be deemed to be the price (exclusive of accrued interest) to be
paid by the successful bidder or bidders to the Company.
As soon as practicable after the acceptance in writing of a successful
proposal for Stock, the redemption prices of the Stock will be determined by
the Company, such determination by the Company to be final, and shall be an
amount equal to the initial public offering price of the Stock, plus an amount
per share (expressed in dollars and cents) equal to (a) if the Stock will not
have an adjustable dividend rate, the annual dividend if the date of
redemption is on or prior to the fifth anniversary of the first day of the
calendar month during which the Stock is issued (the "Key Date"), and without
premium for redemptions thereafter, or (b) if the Stock will have an
adjustable dividend rate, the annual dividend calculated based upon the
"Initial Dividend Rate" if the date of redemption is on or prior to the fifth
anniversary of the Key Date, and without premium for redemptions thereafter,
to which shall be added accrued dividends in each case to the date of
redemption; provided, however, that no share of the Stock shall be redeemed
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prior to the fifth anniversary of the Key Date, if such redemption is for the
purpose or in anticipation of refunding such share directly or indirectly
through the incurring of debt, or through the issuance of stock ranking
equally with or prior to the Stock as to dividends or assets, if such debt has
an effective interest cost to the Company (computed in accordance with
generally accepted financial practice) or such stock has an effective dividend
cost to the Company (so computed) of less than the effective dividend cost to
the Company of the Stock (if the Stock will have an adjustable dividend rate,
the effective dividend cost to the Company of the Stock to be based upon the
"Initial Dividend Rate"). If any redemption price, as so computed, does not
result in a multiple of one cent, it shall be increased to the next higher
such multiple.
The initial public offering price of the Stock for the purpose of the
above determinations shall be the price (exclusive of accrued dividends, if
any) at which the Stock is to be initially offered for sale to the public by
the successful bidder or bidders as set forth in the Prospectus Supplement to
be prepared following the acceptance of the successful bid.
8. PURCHASE CONTRACT AND PROSPECTUS SUPPLEMENT
Forthwith upon the acceptance in writing of a proposal, (a) the Purchase
Contract shall become effective without any separate execution thereof and
shall constitute the agreement between the Company and the successful bidder
or bidders; (b) the successful bidder, or, in the case of a proposal by a
group of bidders, the Representative on behalf of the successful bidders,
shall furnish to the Company in writing the information regarding the bidders
and the public offering, if any, as is required to complete a Prospectus
Supplement and any further information regarding the bidders and the public
offering, if any, as is required to complete the statement in respect of the
Securities filed by the Company under the Pubic Utility Holding Company Act of
1935, as amended, or which may be required by the Florida Public Service
Commission; and (c) upon performance by the successful bidder or bidders, and
their Representative, of their obligations under Sections 3, 4 and 8 hereof,
all rights of the Company and of the successful bidder or bidders under an
accepted proposal shall be determined solely in accordance with the terms of
the Purchase Contract.
9. OPINION OF COUNSEL FOR THE PURCHASERS
Dewey Ballantine, 1301 Avenue of the Americas, New York, New York, have
been selected by the Company as counsel for the purchasers to give to each
successful bidder or bidders an opinion with respect to the Bonds or Stock, as
the case may be, substantially in the respective forms attached as Exhibit 3
to the Purchase Contract. Such counsel have participated in the preparation
of certain of the documents under which the Securities are to be issued and
have reviewed or will review the corporate proceedings with respect to the
Securities and the proceedings before the Florida Public Service Commission
and the Securities and Exchange Commission and the order or orders of said
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commissions with respect to the Securities. Their compensation and
disbursements are, under the terms of the Purchase Contract, to be paid by the
successful bidder or bidders, except as otherwise provided in the Purchase
Contract. Such counsel will, on request, advise any prospective bidder, or
the Representative of any group of prospective bidders, of the amount of such
compensation and of the estimated amount of such disbursements to be paid by
the successful bidder or bidders for the Securities.
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10. WAIVER OF IRREGULARITIES
The Company reserves the right to waive any failure on the part of any
bidder or group of bidders to comply with the terms and conditions hereof.
GULF POWER COMPANY
By TRAVIS J. BOWDEN
President and Chief Executive Officer
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