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) November 6, 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.)
<PAGE>
Item 5. Other Events.
On November 6, 1996, Gulf Power Company (the "Company") entered
into a Purchase Contract covering the issue and sale of $25,000,000 aggregate
principal amount of First Mortgage Bonds, 6 1/2% Series due November 1, 2006.
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
November 6, 1996, between the Company and the Purchaser
named therein, with Purchase Contract attached thereto.
4 Supplemental Indenture, dated as of November 1, 1996, between
the Company and The Chase Manhattan Bank, 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.
<PAGE>
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: November 19, 1996 GULF POWER COMPANY
By /s/ Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
CS First Boston Corporation
Name of Bidder
FORM OF PROPOSAL
For Purchase of
GULF POWER COMPANY
FIRST MORTGAGE BONDS
Dated: November 6, 1996
GULF POWER COMPANY
c/o Southern Company Services, Inc.
64 Perimeter Center East
Atlanta, Georgia 30346
Ladies and Gentlemen:
Referring to the terms and conditions dated October 29, 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 $25,000,000 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 1/2% 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
98.141% 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".
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.
<PAGE>
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,
/s/Robert A. Hanson
Robert A. Hanson
Vice President
Onbehalf of and
as
Representative(s)
of the persons,
firms and
corporations
named in Exhibit
A hereto.
CS First Boston Corporation
Park Avenue Plaza
New York, NY 10055
Address
Accepted:
GULF POWER COMPANY
By: /s/Wayne Boston
Title: Assistant Secretary
<PAGE>
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
CS First Boston Corporation $25,000,000
<PAGE>
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 (successor by merger to 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").
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
<PAGE>
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 Troutman Sanders LLP, NationsBank Plaza, 600
Peachtree Street, Suite 5200, Atlanta, Georgia 30308 (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 tenth 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:
(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
<PAGE>
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
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 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
<PAGE>
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 fifth
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.
(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
<PAGE>
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 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.
(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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
Registration Statement, and to each other Purchaser that the
information furnished in writing to the Company by, or through the
Representative on behalf of, 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 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
<PAGE>
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.
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.
<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 (successor by merger
to 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.
<PAGE>
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
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.
<PAGE>
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 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 the date of
filing the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1995 (including such Annual Report on Form 10-K), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the 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
<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 (successor by merger
to 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
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.
<PAGE>
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.
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.
<PAGE>
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, and (ii)
we have no reason to believe that the Registration Statement, as of the date of
filing the Annual Report on Form 10-K of the Company for the fiscal year ended
December 31, 1995 (including such Annual Report on Form 10-K), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the 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
<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 (successor by merger to 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
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:
<PAGE>
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.
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.
<PAGE>
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 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 the date of filing the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 1995 (including such Annual
Report on Form 10-K), contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the 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
Exhibit 4
GULF POWER COMPANY
TO
THE CHASE MANHATTAN BANK,
As Trustee.
SUPPLEMENTAL INDENTURE
providing among other things for
FIRST MORTGAGE BONDS
6 1/2% Series due November 1, 2006
Dated as of November 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 November 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, a banking corporation organized and
existing under the laws of the State of New York, with its principal office in
the Borough of Manhattan, The City of New York, formerly Chemical Bank,
successor by merger 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 (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
<PAGE>
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 1/2% Series due
November 1, 2006" (hereinafter sometimes referred to as the "Forty-seventh
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 November 1, 2006; and
WHEREAS each of the bonds of the Forty-seventh Series is to be
substantially in the following form, to-wit:
[FORM OF BOND OF THE FORTY-SEVENTH SERIES]
[FACE]
GULF POWER COMPANY
First Mortgage Bond, 6 1/2% Series Due November 1, 2006
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 November 1, 2006, 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 May 1, 1997, in which case from November 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 May 1, 1997, from November 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 May 1 and November 1 in each year.
<PAGE>
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 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,
as Trustee,
By
Authorized Officer
<PAGE>
[REVERSE]
GULF POWER COMPANY
FIRST MORTGAGE BOND, 6 1/2% SERIES DUE NOVEMBER 1, 2006
The interest payable on any May 1 or November 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 April 15 or October 15, as the case may be, next
preceding such interest payment date, or, if such April 15 or October 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
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 is
successor (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.
The bonds of this series may not be redeemed by operation of the
improvement fund or the replacement provisions of the Indenture or by the use of
proceeds of released property.
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
<PAGE>
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, at any time and from time to time by the payment of a regular
redemption price equal to the greater of (i) 100% of the principal amount of the
bonds being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the bonds being redeemed
discounted to the date of redemption on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at a discount rate equal to the
Treasury Yield plus 5 basis points, plus, for (i) or (ii) above, whichever is
applicable, accrued interest on the bonds to the date of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of bonds to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the bonds of this series.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day in New York City preceding such redemption date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for US Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such business day, the
Reference Treasury Dealer Quotation for such redemption date.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Reference Treasury Dealer" means a primary US Government securities
dealer in New York City appointed by the Company and reasonably acceptable to
the Trustee.
<PAGE>
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day in New York City preceding such redemption date).
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 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.
<PAGE>
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 $25,000,000 principal amount of bonds of the Forty-seventh 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, 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 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.
<PAGE>
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 every kind and
<PAGE>
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-seventh Series") and the form thereof shall be substantially
as hereinabove set forth. Bonds of the Forty-seventh 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-seventh 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-seventh 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-seventh 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 May 1 and November 1 in each
year.
The principal of and premium, if any, and the interest on the bonds of
the Forty-seventh 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-seventh 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-seventh 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.
<PAGE>
The person in whose name any bond of the Forty-seventh 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 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 April 15 or October 15, as the case may be, next preceding such
interest payment date, or, if such April 15 or October 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-seventh 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 May
1 or November 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 May 1, 1997, then from November 1, 1996.
The bonds of the Forty-seventh Series shall not be redeemable 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.
Any or all of the bonds of the Forty-seventh Series shall be redeemable
at the option of the Company, 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-seventh
Series to be redeemed (in whole or in part) at the last address of such holder
appearing on the registry books, at a regular redemption price equal to the
greater of (i) 100% of the principal amount of the bonds of the Forty-seventh
Series being redeemed or (ii) the sum of the present values of the remaining
scheduled payments of principal of and interest on the bonds of the
Forty-seventh Series being redeemed discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
a discount rate equal to the Treasury Yield plus 5 basis points, plus, for (i)
or (ii) above, whichever is applicable, accrued interest on such bonds to the
date of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of bonds of the Forty-seventh Series to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such bonds.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day in New York City preceding such redemption date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for US Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such business day, the
Reference Treasury Dealer Quotation for such redemption date.
<PAGE>
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Reference Treasury Dealer" means a primary US Government securities
dealer in New York City appointed by the Company and reasonably acceptable to
the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day in New York City preceding such redemption date).
SECTION 2. The Company covenants that, so long as any bonds of the
Forty-seventh 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-seventh
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 principal amount of bonds of
the Forty-seventh 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
<PAGE>
(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-seventh 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 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,
<PAGE>
(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 remain in full force and effect so long as any bonds of the
Forty-seventh Series shall be outstanding under the Indenture.
<PAGE>
SECTION 4. 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 5. 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 6. 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 7. 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.
<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, 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 15th day of November, 1996 by GULF POWER
COMPANY, in the County of Escambia, State of Florida, in the presence of:
- --------------------------
Linda Malone
- --------------------------
Tina James
<PAGE>
THE CHASE MANHATTAN BANK,
as Trustee
By:___________________________
Valerie Dunbar
Vice President
450 West 33rd Street
New York, New York 10001
Attest:
- --------------------------
Lucia Jaklitsch
Corporate Trust Officer
450 West 33rd Street
New York, New York 10001
Signed, sealed and delivered this 15th day of November 1996 by THE CHASE
MANHATTAN BANK in the presence of:
- --------------------------
Deirdra N. Ross
- --------------------------
Patricia M. Marshall
<PAGE>
STATE OF FLORIDA )
)
COUNTY OF ESCAMBIA )
The foregoing instrument was acknowledged before me this 15th day of
November, 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 15th day of
November, 1996, by Valerie Dunbar, a Vice President of THE CHASE MANHATTAN
BANK, a New York banking corporation, on behalf of the corporation. She
is personally known to me and did take an oath.
-----------------------------
Della K. Benjamin
Notary Public
State of New York
[NOTARIAL SEAL] No. 01BE4659667
Qualified in Kings County
Commission Expires 4/30/97
Exhibit A
I.
STEAM GENERATING PLANTS
1. All additions to Crist Steam Plant, located on Governor's Bayou and
Thompson's Bayou near Pensacola, Florida in Escambia County, not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the lien of the Indenture.
2. All additions to Scholz Steam Plant, located on the west bank of the
Apalachicola River in Jackson County near Chattahoochee, Florida, not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the lien of the Indenture.
3. All additions to Lansing Smith Steam Plant located on Alligator
Bayou and North Bay near Panama City, Florida situated in Bay County, not
heretofore described in the Indenture or any supplement thereto and not
heretofore released from the lien of the Indenture.
4. All additions to Caryville Electric Generating Plant Site, located
on Choctawhatchee River situated in Holmes and Washington Counties, in the State
of Florida, not heretofore described in the Indenture or any supplement thereto
and not heretofore released from the lien of the Indenture.
5. A 50% undivided interest in all additions to V. J. Daniel
Electric Generating Plant, located on the Pascagoula River, near Pascagoula,
Mississippi situated in Jackson County, not heretofore described in the
Indenture or any supplement thereto and not heretofore released from the lien
of the Indenture.
6. A 25% undivided interest in all additions to Unit No. 3 and a 6.25%
undivided interest in all additions to Common Facilities of Plant Scherer
Electric Generating Plant, located in Monroe County, Georgia, not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the lien of the Indenture.
II.
ELECTRIC TRANSMISSION LINES
All the electric transmission lines of the Company acquired or
constructed by it and not heretofore described in the Indenture or any
supplement thereto and not heretofore released from the lien of the Indenture,
including towers, poles, pole lines, wires, switch racks, switchboards,
insulators and other appliances and equipment, and all other property, real or
personal, forming a part of or appertaining to or used, occupied or enjoyed in
connection with such transmission lines or any of them, or adjacent thereto, and
all service lines extending therefrom; together with all real
<PAGE>
property, rights of way, easements, permits, privileges, franchises and rights
for or relating to the construction, maintenance or operation thereof, through,
over, under or upon any private property or any public streets or highways
within as well as without the corporate limits of any municipal corporation or
other governmental subdivision, including property in the State of Florida,
described as follows:
East Bay - Hurlburt 115 kv Transmission Line extending ten (10) miles
from the East Bay Substation in Santa Rosa County to the Hurlburt Substation in
Okaloosa County, Florida.
Together with lands in Santa Rosa County upon which a portion of said
Transmission Line is located, described as:
Lot Five (5), Block Thirty-nine (39), Second Addition to Navarre, as
recorded in Plat Book "C", Page 31, in the Public Records of Santa Rosa
County, Florida.
Also:
That certain parcel of land lying in Section 17, Township 2 South,
Range 26 West, County of Santa Rosa, State of Florida, which is more
particularly described as follows:
Commence at an iron rod and cap stamped "L. J. Parker #3286"
at the Southeast corner of Section 17, Township 2 South, Range
26 West, Santa Rosa County, Florida; thence go North 02
degrees 20 minutes 33 seconds East a distance of 1994.99 feet
along the East line of said Section 17 to a point; thence go
North 80 degrees 54 minutes 46 seconds West a distance of
124.94 feet; thence go North 12 degrees 57 minutes 11 seconds
West a distance of 835.07 feet to the Point of Beginning of
the following described parcel; thence go North 87 degrees 45
minutes 31 seconds West a distance of 127.76 feet to a point
on the Easterly right of way line of Florida State Highway #87
(a 66 foot right of way); thence North 10 degrees 19 minutes
57 seconds East a distance 101.01 feet along the Easterly
right of way of said highway; thence South 87 degrees 45
minutes 31 seconds East a distance of 138.19 feet; thence
South 12 degrees 57 minutes 11 seconds East a distance of
103.63 feet; thence North 87 degrees 45 minutes 31 seconds
West a distance of 51.81 feet to the Point of Beginning. All
lying and being in Section 17, Township 2 South, Range 26
West, Santa Rosa County, Florida. Containing 15,888.571 square
feet or 0.365 acres, more or less.
<PAGE>
Said Transmission Line is constructed on easements described as
follows:
Transmission line easements recorded in Official Records Book 1484,
Page 1305, dated July 14, 1995; Official Records Book 1475, Page 1306,
dated June 8, 1995; Official Records Book 1475, Page 1311, dated June
8, 1995; Official Records Book 1475, Page 1309, dated June 7, 1995;
Official Records Book 1460, Page 1125, dated February 21, 1995;
Official Records Book 1520, Page 1349, dated December 6, 1995; Official
Records Book 1520, Page 1355, dated September 21, 1995; Official
Records Book 1520, Page 1357, dated October 11, 1995; all being in
Santa Rosa County, Florida; AND: Official Records Book 2020, Page 792,
dated June 21, 1996; Official Records Book 2020, Page 801, dated July
14, 1996; Official Records Book 2020, Page 803, dated July 26, 1996;
Official Records Book 2020, Page 783, dated July 2, 1996; Official
Records Book 2020, Page 795, dated July 2, 1996; Official Records Book
2020, Page 777, dated June 28, 1996; Official Records Book 2020, Page
798, dated June 24, 1996; Official Records Book 2020, Page 780, dated
June 25, 1996; Official Records Book 2020, Page 789, dated June 27,
1996; Official Records Book 2020, Page 786, dated August 9, 1996, and
Official Records Book 2020, Page 806, dated June 20, 1996.
All being in Okaloosa County, Florida.
III.
DISTRIBUTION SYSTEMS
All the electric distribution systems of the Company acquired or
constructed by it and not heretofore described in the Indenture or any
supplement thereto and not heretofore released from the lien of the Indenture,
including substations, transformers, switchboards, towers, poles, wires,
insulators, subways, trenches, conduits, manholes, cables, meters and other
appliances and equipment, and all other property, real or personal, forming a
part of or appertaining to or used, occupied or enjoyed in connection with such
distribution systems or any of them, or adjacent thereto; together with all real
property, rights of way, easements, permits, privileges, franchises, and rights
for or relating to the construction, maintenance or operation thereof, through,
over, under or upon any private property or any public streets or highways
within as well as without the corporate limits of any municipal corporation or
other governmental subdivision.
IV.
SUBSTATIONS
All of the substations of the Company for transforming or distributing
or otherwise regulating electric current at any of its plants and elsewhere
acquired or constructed by it and not heretofore described in the Indenture or
any supplement thereto and not heretofore released from the lien of the
Indenture, together with all buildings, transformers, wires, insulators and
other appliances and equipment, and all other property, real or personal,
forming a part of or appertaining to or used, occupied or enjoyed in connection
with any of such substations or adjacent thereto.
<PAGE>
V.
OTHER REAL PROPERTY
All other real property of the Company and all interests therein of
every nature and description and wherever located acquired by it and not
heretofore described in the Indenture or any supplement thereto and not
heretofore released from the lien of the Indenture.
Exhibit 12
11/11/96
GULF POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1995
and the twelve months ended September 30, 1996
<TABLE>
<CAPTION>
Twelve
Months
Ended
Year ended December 31, September 30,
1991 1992 1993 1994 1995 1996
-----------------------Thousands of Dollars--------------------
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
<S> <C> <C> <C> <C> <C> <C>
Income Before Interest Charges $107,854 $98,422 $ 96,088 $ 93,407 $ 92,693 $ 88,420
Federal and state income taxes 36,181 28,569 28,304 40,848 24,871 18,781
Deferred income taxes, net (3,392) 3,322 5,347 (6,987) 9,315 13,328
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 95 46 454 656 187 150
Earnings as defined $140,738 $130,359 $130,193 $127,924 $127,066 $120,679
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 41,665 $35,792 $ 31,344 $ 27,124 $ 23,294 $ 23,849
Interest on interim obligations 280 1,041 870 1,509 2,931 2,343
Amort of debt disc, premium and exp 699 1,032 1,412 1,834 2,014 2,058
Other interest charges 2,272 1,410 2,877 2,442 1,674 1,420
Fixed charges as defined $ 44,916 $39,275 $ 36,503 $ 32,909 $ 29,913 $ 29,670
RATIO OF EARNINGS TO FIXED CHARGES 3.13 3.32 3.57 3.89 4.25 4.07
</TABLE>
Exhibit 23(a)
November 18, 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 November 6, 1996, relating to $25,000,000 aggregate principal
amount of First Mortgage Bonds, 6 1/2% Series due November 1, 2006, 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 November 6, 1996.
Very truly yours,
/s/ Beggs & Lane
Exhibit 23(b)
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 November 6, 1996.
November 19, 1996
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
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 $200,500,000 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: October 29, 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
October 29, 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, Cumulative, (Par Value $10 Per Share,
Stated Capital $25 Per Share), aggregating up to $200,500,000 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, respectively,
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, 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;
(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.
<PAGE>
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 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.
<PAGE>
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.
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.
<PAGE>
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 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 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, 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.
<PAGE>
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.
7. DETERMINATION OF REDEMPTION PROVISIONS
The Bonds will be redeemable by the Company in whole or in part at any
time upon not less than 30 nor more than 45 days' notice at a regular redemption
price equal to the greater of (i) 100% of the principal amount of the Bonds
being redeemed or (ii) the sum of the present values of the remaining scheduled
payments of principal of and interest on the Bonds being redeemed discounted to
the date of redemption on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at a discount rate equal to the Treasury Yield plus 5
basis points, plus, for (i) or (ii) above, whichever is applicable, accrued
interest on the Bonds to the date of redemption. The Bonds will not be
redeemable by operation of the improvement fund or the replacement provisions of
the Mortgage or by the use of proceeds of released property.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of Bonds to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Bonds.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day in New York City preceding such redemption date, as set forth in
the daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations
for US Government Securities" or (ii) if such release (or any successor release)
is not published or does not contain such prices on such business day, the
Reference Treasury Dealer Quotation for such redemption date.
<PAGE>
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company and reasonably
acceptable to the Trustee.
"Reference Treasury Dealer" means a primary US Government securities
dealer in New York City appointed by the Company and reasonably acceptable to
the Trustee.
"Reference Treasury Dealer Quotation" means, with respect to the
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount and quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day in New York City preceding such redemption date).
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 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.
<PAGE>
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 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.
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
