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) July 28, 1997
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GULF POWER COMPANY
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(Exact name of registrant as specified in its charter)
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Maine 0-2429 59-0276810
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(State or other jurisdiction (Commission File (IRS Employer Identification
of incorporation) Number) No.)
500 Bayfront Parkway, Pensacola, Florida 32501
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (850) 444-6111
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N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On July 28, 1997, Gulf Power Company (the "Company") entered
into an Underwriting Agreement covering the issue and sale by the Company of
$20,000,000 aggregate principal amount of its Series B 7.50% Junior Subordinated
Notes due June 30, 2037. Said Notes were registered under the Securities Act of
1933, as amended, pursuant to the shelf registration statement (Registration
Statement Nos. 333-19271, 333-19271-01 and 333-19271-02) of the Company. Item 7.
Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
1 Underwriting Agreement, dated July 28, 1997, between
the Company and The Robinson-Humphrey Company, Inc.
4.2 Second Supplemental Indenture dated as of August 1,
1997, providing for the issuance of the Company's
Series B 7.50% Junior Subordinated Notes due June 30,
2037.
4.7 Form of Series B 7.50% Junior Subordinated Note
(included in Exhibit 4.2 above).
12.1 Computation of ratio of earnings to fixed charges.
12.2 Computation of ratio of earnings to fixed charges plus
preferred dividend requirements (pre-income tax basis).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
Date: July 31, 1997 GULF POWER COMPANY
By /s/Wayne Boston
Wayne Boston
Assistant Secretary
Exhibit 1
$20,000,000 7.50% Series B Junior Subordinated Notes
due June 30, 2037
GULF POWER COMPANY
UNDERWRITING AGREEMENT
July 28, 1997
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representative (in such capacity,
you shall hereinafter be referred to as the "Representative"), with respect to
the sale by the Company and the purchase by the Underwriters, acting severally
and not jointly, of $20,000,000 aggregate principal amount of the Series B 7.50%
Junior Subordinated Notes due June 30, 2037 (the "Junior Subordinated Notes")
set forth in Schedule I.
The Company understands that the Underwriters propose to make
a public offering of the Junior Subordinated Notes as soon as the Representative
deems advisable after this Agreement has been executed and delivered. The Junior
Subordinated Notes will be issued pursuant to an indenture, as heretofore
supplemented, dated as of January 1, 1997 (the "Base Indenture"), between the
Company and The Chase Manhattan Bank, as trustee (the "Debt Trustee"), and a
second supplemental indenture to the Base Indenture, dated as of August 1, 1997
(the "Supplemental Indenture," and together with the Base Indenture and any
other amendments or supplements thereto, the "Indenture"), between the Company
and the Debt Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to each Underwriter as
follows:
(a) A registration statement on Form S-3, as
amended (File Nos. 333-19271, 333-19271-01 and 333-
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19271-02), in respect of the Junior Subordinated Notes and certain
other securities has been prepared and filed in accordance with the
provisions of the Securities Act of 1933, as amended (the "1933 Act"),
with the Securities and Exchange Commission (the "Commission"); such
registration statement, as amended, and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to
you, and to you for each of the other Underwriters, has been declared
effective by the Commission in such form (except that copies of the
registration statement, as amended, and any post-effective amendment
delivered to you for each of the other Underwriters need not include
exhibits but shall include all documents incorporated by reference
therein); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or, to the best knowledge of the Company,
threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement, included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the 1933
Act, being hereinafter called a "Preliminary Prospectus"); such
registration statement, as it became effective, including the exhibits
thereto and all documents incorporated by reference therein pursuant to
Item 12 of Form S-3 at the time such registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus relating to the Junior Subordinated Notes, in the form in
which it was included in the Registration Statement at the time it
became effective, being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act,
as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; the Prospectus as supplemented
by a
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preliminary prospectus supplement dated July 25, 1997 relating to the
Junior Subordinated Notes, including any documents incorporated by
reference therein as of such date, being hereinafter called the
"Preliminary Supplemented Prospectus"; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the
Junior Subordinated Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in accordance
with Section 3(f) hereof, including any documents incorporated by
reference therein as of the date of such filing, being hereinafter
called the "Final Supplemented Prospectus").
(b) The documents incorporated by reference in the
Registration Statement or Prospectus, when they were filed with the
Commission, complied in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the
Commission thereunder, and as of such time of filing, when read
together with the Prospectus, none of such documents contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, will comply
in all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder and, when
read together with the Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the Company makes no warranty or representation to any Underwriter with
respect to: (A) any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by
an Underwriter through you expressly for use in the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus; or (B)
any information set forth in the Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus under the caption "Book-Entry-Only
Issuance -- The Depository Trust Company".
(c) The Preliminary Supplemented Prospectus, at
the time of filing thereof, complied in all material
respects with the applicable provisions of the 1933 Act
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and the rules and regulations of the Commission thereunder and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Registration Statement, the Prospectus and, to the
extent not used to confirm sales of the Junior Subordinated Notes, the
Preliminary Supplemented Prospectus, comply, and the Final Supplemented
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus, when any such post-effective
amendments are declared effective or supplements are filed with the
Commission, as the case may be, will comply, in all material respects
with the applicable provisions of the 1933 Act, the 1934 Act, the 1939
Act (hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment
thereto, (ii) as of the filing date thereof as to the Preliminary
Supplemented Prospectus, and (iii) as of the applicable filing date as
to the Final Supplemented Prospectus and any Prospectus as further
amended or supplemented, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the Company makes no warranties
or representations with respect to (A) that part of the Registration
Statement which shall constitute the Statements of Eligibility (Form
T-1) (collectively, the "Form T-1") under the Trust Indenture Act of
1939, as amended (the "1939 Act"), (B) statements or omissions made in
the Registration Statement, the Preliminary Supplemented Prospectus, or
the Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
expressly for use therein or (C) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the caption "Book-Entry Only Issuance -- The
Depository Trust Company".
(e) With respect to the Registration Statement, the conditions
for use of Form S-3, as set forth in the General Instructions thereof,
have been satisfied.
(f) Since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, except as otherwise stated therein, there has been no
material adverse
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change in the business, properties or financial
condition of the Company.
(g) The Company is a corporation duly organized and existing
under the laws of the State of Maine, is duly qualified to carry on its
business as a foreign corporation under the laws of the States of
Florida, Georgia and Mississippi, and has due corporate authority to
carry on the public utility business in which it is engaged and to own
and operate the properties used by it in such business, to enter into
and perform its obligations under this Agreement and the Indenture and
to issue and sell the Junior Subordinated Notes to the Underwriters.
(h) This Agreement has been duly authorized,
executed and delivered by the Company.
(i) The Indenture has been duly authorized by the Company and,
on the Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of the
Indenture by the Debt Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the "Enforceability
Exceptions"); the Indenture will conform in all material respects to
all statements relating thereto contained in the Final Supplemented
Prospectus; and, on the Closing Date, the Indenture will have been duly
qualified under the 1939 Act.
(j) The issuance and delivery of the Junior Subordinated Notes
have been duly authorized by the Company and, on the Closing Date, the
Junior Subordinated Notes will have been duly executed by the Company
and, when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement
thereof may be limited by the Enforceability Exceptions, will be in the
form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to
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all statements relating thereto in the Final
Supplemented Prospectus.
(k) The Junior Subordinated Notes are subordinated and junior
in right of payment to all "Senior Indebtedness" (as defined in the
Indenture) of the Company.
(l) Neither the Company nor any of the Company's subsidiaries
is and, after giving effect to the offering and sale of the Junior
Subordinated Notes, will be an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(m) The execution, delivery and performance by the Company of
this Agreement, the Indenture and the Junior Subordinated Notes and the
consummation by the Company of the transactions contemplated herein and
therein and compliance by the Company with its obligations hereunder
and thereunder shall have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the charter or bylaws of the Company, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to which
any of its properties may be subject (except for conflicts, breaches or
defaults which would not, individually or in the aggregate, be
materially adverse to the Company or materially adverse to the
transactions contemplated by this Agreement), or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
or any regulatory body or administrative agency or other governmental
body having jurisdiction over the Company, or any of its properties.
(n) No authorization, approval, consent or order of any court
or governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Junior Subordinated Notes or
the transactions by the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility
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Holding Company Act of 1935, as amended (the "1935 Act"); (C) the
qualification of the Indenture under the 1939 Act; (D) the approval of
the Florida Public Service Commission (the "Florida Commission"); and
(E) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, the
principal amount of Junior Subordinated Notes set forth in Schedule I opposite
the name of such Underwriter (plus any additional amount of Junior Subordinated
Notes that such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof) at a price equal to 96.85% of the principal
amount thereof; except that such price will be increased to 98% of the principal
amount of the Junior Subordinated Notes sold to certain institutions.
(b) Payment for and delivery of certificates for the Junior
Subordinated Notes shall be made at the offices of Troutman Sanders LLP,
NationsBank Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia at 10:00 A.M.,
New York time, on August 1, 1997 (unless postponed in accordance with the
provisions of Section 10) or such other time, place or date as shall be agreed
upon by the Representative and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer in federal funds at the Closing Date against delivery
of the Junior Subordinated Notes to the Representative for the respective
accounts of the Underwriters. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Junior Subordinated Notes
which it has agreed to purchase. The Representative, individually and not as
Representative of the Underwriters, may (but shall not be obligated to) make
payment of the principal amount of the Junior Subordinated Notes to be purchased
by any Underwriter whose payment has not been received by the Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The delivery of the Junior Subordinated Notes shall be made in
fully registered form, registered in the name of CEDE & CO., to the offices of
The Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
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SECTION 3. COVENANTS OF THE COMPANY. The Company
covenants with each Underwriter as follows:
(a) The Company, on or prior to the Closing Date, will deliver
to the Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or hereafter
made, including any post-effective amendment (in each case including
all exhibits filed therewith, and including unsigned copies of each
consent and certificate included therein or filed as an exhibit
thereto, except exhibits incorporated by reference, unless specifically
requested). As soon as the Company is advised thereof, it will advise
the Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the institution
of any proceedings therefor, of which the Company shall have received
notice, and will use its best efforts to prevent the issuance of any
such stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Underwriters sufficient conformed
copies of the Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus and of
all supplements and amendments thereto (in each case without exhibits)
for distribution to each Underwriter and, from time to time, as many
copies of the Prospectus, the Preliminary Supplemented Prospectus and
the Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of
each amendment and supplement to the Preliminary Supplemented
Prospectus and Final Supplemented Prospectus relating to the offering
of the Junior Subordinated Notes in such quantities as the Underwriters
may from time to time reasonably request. If, during the period (not
exceeding nine months) when the delivery of a prospectus shall be
required by law in connection with the sale of any Junior Subordinated
Notes by an Underwriter or dealer, any event relating to or affecting
the Company, or of which the Company shall be advised in writing by the
Underwriters, shall occur, which in the opinion of the Company or of
Underwriters' counsel should be set forth in a supplement to or an
amendment of the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus, as the case may be, in order to make the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus
not misleading in the light of the circumstances when it is delivered,
or if for any other reason it shall be necessary during such period
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to amend or supplement the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Preliminary Prospectus or Prospectus
in order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation of
purchases of the Junior Subordinated Notes and (ii) at its expense,
make any such filing or prepare and furnish to the Underwriters a
reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Preliminary Supplemented Prospectus or
Final Supplemented Prospectus which will supplement or amend the
Preliminary Supplemented Prospectus or Final Supplemented Prospectus so
that, as supplemented or amended, it will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Preliminary Supplemented Prospectus or Final
Supplemented Prospectus is delivered, not misleading or which will
effect any other necessary compliance. In case any Underwriter is
required to deliver a prospectus in connection with the sale of any
Junior Subordinated Notes after the expiration of the period specified
in the preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of such
Underwriter, a reasonable quantity of a supplemented or amended
prospectus, or supplements or amendments to the Final Supplemented
Prospectus, complying with Section 10(a) of the 1933 Act. During the
period specified in the second sentence of this subsection, the Company
will continue to prepare and file with the Commission on a timely basis
all documents or amendments required under the 1934 Act and the rules
and regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies thereof
prior to such filing to the Representative and Dewey Ballantine.
(c) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Junior Subordinated Notes for offering and
sale under the applicable securities laws of such states and the other
jurisdictions of the United States as the Representative may designate;
provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a consent to service of process or to file annual
reports or to comply with any other requirements in connection with
such qualification deemed by the Company to be unduly burdensome.
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(d) The Company will make generally available to its security
holders as soon as practicable but not later than 45 days after the
close of the period covered thereby, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the rules
and regulations under the 1933 Act) covering a twelve-month period
beginning not later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in Rule 158) of the
Registration Statement.
(e) During a period of 15 days from the date of this
Agreement, the Company will not, without the Representative's prior
written consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Junior
Subordinated Notes or any security convertible into or exchangeable
into or exercisable for the Junior Subordinated Notes or any debt
securities substantially similar to the Junior Subordinated Notes
(except for the Junior Subordinated Notes issued pursuant to this
Agreement).
(f) As soon as practicable after the date of this Agreement,
and in any event within the time prescribed by Rule 424 under the 1933
Act, to file the Final Supplemented Prospectus with the Commission and
to advise the Representative of such filing and to confirm such advice
in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Junior
Subordinated Notes to the Underwriters, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Junior
Subordinated Notes under securities laws in accordance with the provisions of
Section 3(c) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky survey (such fees and
disbursements of counsel shall not exceed $3,500), (v) the printing and delivery
to the Underwriters of copies of the Registration Statement as originally filed
and of each amendment thereto and of the Prospectus, the Preliminary
Supplemented Prospectus, the Final Supplemented Prospectus, and any amendments
or supplements thereto, (vi) the printing and delivery to the Underwriters of
copies of any blue sky survey, (vii) the fee of the National Association of
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Securities Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses of
the Debt Trustee, including the fees and disbursements of counsel for the Debt
Trustee in connection with the Indenture and the Junior Subordinated Notes, (ix)
any fees payable in connection with the rating of the Junior Subordinated Notes,
(x) the cost and charges of any transfer agent or registrar, and (xi) the cost
of qualifying the Junior Subordinated Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Junior Subordinated Notes including fees and disbursements
of their counsel, Dewey Ballantine.
SECTION 5. CONDITIONS OF UNDERWRITERS'
OBLIGATIONS. The obligations of the Underwriters to
purchase and pay for the Junior Subordinated Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and no
proceedings for that purpose shall be pending before, or to the
knowledge of the Company threatened by, the Commission on such date. If
filing of the Preliminary Supplemented Prospectus or Final Supplemented
Prospectus, or any supplement thereto, is required pursuant to Rule
424, the Preliminary Supplemented Prospectus or Final Supplemented
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) Orders of the Florida Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or orders
heretofore entered, copies of which have heretofore been delivered to
the Representative, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered
shall be deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any party to
this Agreement shall give notice to the other parties to the effect
that such order contains an unacceptable provision).
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(c) On the Closing Date the Representative shall
have received:
(1) The opinion, dated the Closing Date, of Beggs &
Lane, counsel for the Company, substantially in the form attached
hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman
Sanders LLP, counsel for the Company, substantially in the form
attached hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath,
Swaine & Moore, counsel to the Debt Trustee, substantially in the form
attached hereto as Schedule III.
(4) The favorable opinion, dated as of the Closing
Date, of Dewey Ballantine, counsel for the Underwriters, substantially
in the form attached hereto as Schedule IV.
(5) At the Closing Date, there shall not have been,
since the date hereof or since the respective dates as of which
information is given in the Registration Statement and the Final
Supplemented Prospectus, any material adverse change in the business,
properties or financial condition of the Company, whether or not
arising in the ordinary course of business, and the Representative
shall have received a certificate of the President or any Vice
President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied on or prior to the Closing Date, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or, to
the knowledge of the Company, threatened by the Commission.
(6) On the Closing Date, the Representative shall
have received from Arthur Andersen LLP a letter dated the Closing Date
to the effect that: (A) they are independent public accountants with
respect to the Company within the meaning of the 1933 Act and the rules
and regulations under the 1933 Act; (B) in their opinion, the financial
statements and schedules audited by them and incorporated by reference
in the Prospectus
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comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act and the rules
and regulations under the 1933 Act and the 1934 Act; (C) they have
performed certain limited procedures through a specified date not more
than five business days prior to the date of such letter, namely (i)
reading the minute books of the Company; (ii) reading the unaudited
financial statements, if any, of the Company incorporated in the Final
Supplemented Prospectus and agreeing the amounts therein with the
Company's accounting records; (iii) making inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited financial
statements, if any, incorporated in the Final Supplemented Prospectus
(a) are in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements incorporated in the Final Supplemented Prospectus
and (b) comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act and the rules and regulations
under the 1934 Act; (iv) reading the unaudited amounts for Operating
Revenues, Income Before Interest Charges and Net Income After Dividends
on Preferred Stock and the unaudited Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges Plus Preferred Dividend
Requirements (Pre-Income Tax Basis), which amounts shall include such
amounts for the latest period subsequent to that covered by the
financial statements incorporated by reference in the Final
Supplemented Prospectus for which such amounts are available at the
time this Agreement becomes effective; (v) reading the unaudited
financial statements from which the amounts and ratios described in
(iv) were derived and agreeing the amounts therein to the Company's
accounting records; (vi) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
regarding whether (a) the unaudited amounts and ratios referred to in
(iv) above and the unaudited financial statements referred to in (v)
above are stated on a basis substantially consistent with that of the
corresponding audited amounts or ratios included or incorporated by
reference in the Final Supplemented Prospectus and (b) as of a
specified date not more than five business days prior to the date of
delivery of such letter, there has been any change in the capital stock
or long-term debt of the Company or any decrease in net assets as
compared with amounts shown in the latest audited balance sheet
incorporated in the Final Supplemented Prospectus, except in each case
for changes or decreases which (I) the Final Supplemented
13
<PAGE>
Prospectus discloses have occurred or may occur, (II) are occasioned by
the declaration of dividends, (III) are occasioned by draw-downs under
existing pollution control financing arrangements, (IV) are occasioned
by draw-downs and regularly scheduled payments of capitalized lease
obligations, (V) are occasioned by the purchase or redemption of bonds
or stock to satisfy mandatory or optional redemption provisions
relating thereto, or (VI) are disclosed in such letter; (vii) reading
the unaudited amounts for Operating Revenues, Income Before Interest
Charges and Net Income After Dividends on Preferred Stock and the
unaudited Ratios of Earnings to Fixed Charges and Earnings to Fixed
Charges Plus Preferred Dividend Requirements (Pre- Income Tax Basis)
for any period subsequent to those set forth in (iv) above, which if
available shall be set forth in such letter; (viii) reading the
unaudited financial statements from which the amounts and ratios
described in (vii) above were derived and which will be attached to
such letter and agreeing the amounts therein to the Company's
accounting records; and (ix) making inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters regarding whether the unaudited amounts and ratios referred to
in (vii) above and the unaudited financial statements referred to in
(viii) above are stated on a basis substantially consistent with that
of the corresponding audited amounts or ratios included or incorporated
by reference in the Final Supplemented Prospectus; and (D) reporting
their findings as a result of performing the limited procedures set
forth in (C) above. It is understood that the foregoing procedures do
not constitute an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Arthur Andersen LLP make no representations as to the
sufficiency of such procedures for the several Underwriter's purposes.
(7) On the Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Junior Subordinated Notes as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Junior Subordinated Notes as herein contemplated shall be
satisfactory in form and
14
<PAGE>
substance to the Representative and Dewey Ballantine,
counsel for the Underwriters.
(8) That no amendment or supplement to the
Registration Statement, the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to Section
13 or 14 of the 1934 Act) shall be unsatisfactory in form to Dewey
Ballantine or shall contain information (other than with respect to an
amendment or supplement relating solely to the activity of any
Underwriter or Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the market- ability of the
Junior Subordinated Notes.
(9) The Company shall have performed its obligations
when and as provided under this Agreement.
If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Sections 4, 7
and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF
THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
1934 Act or otherwise, and to reimburse the Underwriters and such controlling
person or persons, if any, for any legal or other expenses incurred by them in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged
15
<PAGE>
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus,
or the Final Supplemented Prospectus or, if the Company shall furnish to the
Underwriters any amendments or any supplements thereto, or shall make any
filings pursuant to Section 13 or 14 of the 1934 Act which are incorporated
therein by reference, in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Preliminary Supplemented Prospectus, or the Final
Supplemented Prospectus as so amended or supplemented, or arise out of or are
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission which was made in such
Registration Statement, Preliminary Prospectus, Prospectus, the Preliminary
Supplemented Prospectus, or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the Company by, or
through the Representative on behalf of, any Underwriter for use therein and
except that this indemnity with respect to the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus, or the Final Supplemented
Prospectus, if the Company shall have furnished any amendment or supplement
thereto, shall not inure to the benefit of any Underwriter (or of any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or actions arising from the sale of the Junior Subordinated Notes to
any person if a copy of the Preliminary Prospectus, the Prospectus, the
Preliminary Supplemented Prospectus, or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus as supplemented or amended at the time of
such confirmation. Each Underwriter agrees, within ten days after the receipt by
it of notice of the commencement of any action in respect of which indemnity may
be sought by it, or by any person controlling it, from the Company on account of
its agreement contained in this Section 7, to notify the Company in writing of
the commencement thereof but the omission of such Underwriter so to notify the
Company of any such action shall not release the Company from any liability
which it may have to such Underwriter or to such controlling person
16
<PAGE>
otherwise than on account of the indemnity agreement contained in this Section
7. In case any such action shall be brought against the Underwriters or any such
person controlling such Underwriters and such Underwriter shall notify the
Company of the commencement thereof as above provided, the Company shall be
entitled to participate in (and, to the extent that it shall wish, including the
selection of counsel, to direct) the defense thereof, at its own expense. In
case the Company elects to direct such defense and select such counsel, any
Underwriter or controlling person shall have the right to employ its own
counsel, but, in any such case, the fees and expenses of such counsel shall be
at the expense of such Underwriter or controlling person unless the employment
of such counsel has been authorized in writing by the Company in connection with
defending such action. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include any statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. In no event shall any indemnifying party have any liability
or responsibility in respect of the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim effected without its prior written consent.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its officers
who have signed the Registration Statement and each other Underwriter and each
person, if any, who controls the Company or any such other Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act to
the same extent and upon the same terms as the indemnity agreement of the
Company set forth in Section 7(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Company by, or through the Representative on behalf of, such
Underwriter for use therein.
17
<PAGE>
SECTION 8. REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Junior Subordinated Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice
to the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the Junior
Subordinated Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the
Representative pursuant to subsection (a) above or because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such case,
the Company will reimburse the Underwriters, severally, for the reasonable fees
and disbursements of Dewey Ballantine and for the out of pocket expenses (in an
amount not exceeding $10,000) reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Junior Subordinated
Notes and, upon such reimbursement, the Company shall be absolved from any
further liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE
UNDERWRITERS. If one or more of the Underwriters shall fail
on the Closing Date to purchase the Junior Subordinated
Notes that it or they are obligated to purchase under this
18
<PAGE>
Agreement (the "Defaulted Securities"), the Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities
does not exceed 10% of the Junior Subordinated Notes, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities
exceeds 10% of the Junior Subordinated Notes, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Final Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 3333 Peachtree Road,
N.E., South Tower, Atlanta, Georgia 30326, Attention: Syndicate Department;
notices to the Company shall be delivered to 500 Bayfront Parkway, Pensacola,
Florida 32501, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Charles N. Eldred.
SECTION 12. PARTIES. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the
Company and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other
19
<PAGE>
than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Junior Subordinated Notes from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be
executed by any one or more of the parties hereto in any
number of counterparts, each of which shall be deemed to be
an original, but all such respective counterparts shall
together constitute one and the same instrument.
20
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: WAYNE BOSTON
Title: ASSISTANT SECRETARY
CONFIRMED AND ACCEPTED,
as of the date first above written
THE ROBINSON-HUMPHREY COMPANY, INC.
By: C. MACLAINE KENAN
Title: SENIOR VICE PRESIDENT
For itself and as Representative of the other Underwriters named in Schedule I
hereto.
<PAGE>
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of
Series B Junior
Subordinated Notes
The Robinson-Humphrey Company, Inc. $ 5,000,000
J.C. Bradford & Co. 5,000,000
Edward D. Jones & Co., L.P. 5,000,000
Interstate/Johnson Lane Corporation 1,000,000
Legg Mason Wood Walker, Incorporated 1,000,000
Morgan Keegan & Company, Inc. 1,000,000
Raymond James & Associates, Inc. 1,000,000
Sterne, Agee & Leach, Inc. 1,000,000
----------
TOTAL $20,000,000
<PAGE>
Schedule II-A
[Letterhead of BEGGS & LANE]
___________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
Series B _.__% JUNIOR SUBORDINATED NOTES DUE JUNE 30, 2037
Dear Sirs:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance of $20,000,000
aggregate principal amount of its Series B ___% Junior Subordinated Notes due
June 30, 2037 (the "Notes") pursuant to a Subordinated Note Indenture dated as
of January 1, 1997, by and between the Company and The Chase Manhattan Bank, as
trustee, as heretofore supplemented and amended and as further supplemented by
the Second Supplemental Indenture dated as of __________ __, 199_ (collectively,
the "Indenture"); and (ii) the purchase by you of the Notes pursuant to the
terms of an Underwriting Agreement dated July __, 1997, among the Company and
the underwriters named in Schedule I thereto (the "Underwriters") for whom you
are acting as Representative (the "Underwriting Agreement"). This opinion is
being delivered to you as Representative pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333- 19271, 333-19271-01 and
333-19271-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
January 10, 1997 as supplemented by a final prospectus supplement dated
__________, 199_ (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 1996, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended and the Current Reports on Form 8-K of the
Company dated (the "Exchange
<PAGE>
Act Documents"), each as filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Notes, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture and the Underwriting Agreement are herein referred to as
the "Agreements".
We are of the opinion, relying as to matters of New York law upon the
opinion dated hereof rendered to you by Dewey Ballantine, as to matters of
Georgia law and with respect to the Act, the Exchange Act, the Trust Indenture
Act (as hereinafter defined) and the Public Utility Holding Company Act of 1935,
as amended, on the opinion dated the date hereof rendered to you by Troutman
Sanders LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes and conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
2
<PAGE>
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Debt Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Debt Trustee in the manner provided in the Indenture
and delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
7. The Company is not and, after giving effect to the offering and sale
of the Notes, will not be an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above and in the Final Supplemented Prospectus in the second paragraph
under the caption "Experts". In the course of the preparation by the Company of
the Registration Statement, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company
3
<PAGE>
and with representatives of Arthur Andersen LLP. Based upon our examination of
the Registration Statement, the Final Supplemented Prospectus and the Exchange
Act Documents, our investigations made in connection with the preparation of the
Registration Statement, the Final Supplemented Prospectus and the Exchange Act
Documents and our participation in the conferences referred to above, (i) we are
of the opinion that the Registration Statement, as of its effective date, and
the Final Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement therein of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents.
We are members of the State Bar of Florida and we do not
express any opinion herein concerning any law other than the law of the States
of Florida and Mississippi and the federal law of the United States and, to the
extent set forth herein, the laws of the States of Maine, Georgia and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine may
rely on this opinion in giving their opinions
4
<PAGE>
pursuant to Section 5(c) of the Underwriting Agreement insofar as such opinion
relates to matters of Florida and Mississippi law.
Yours very truly,
BEGGS & LANE
5
<PAGE>
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
SERIES B _.__% JUNIOR SUBORDINATED NOTES DUE JUNE 30, 2037
Dear Sirs:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $20,000,000 aggregate principal
amount of its Series B ___% Junior Subordinated Notes due June 30, 2037 (the
"Notes") pursuant to a Subordinated Note Indenture dated as of January 1, 1997,
by and between the Company and The Chase Manhattan Bank, as trustee, as
heretofore supplemented and as further supplemented by the Second Supplemental
Indenture dated as of __________ __, 199_ (collectively, the "Indenture"); and
(ii) the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated July __, 1997, among the Company and the underwriters named in
Schedule I thereto (the "Underwriters") for whom you are acting as
Representative (the "Underwriting Agreement"). This opinion is being delivered
to you as Representative pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333-19271, 333-19271-01 and
333-19271-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
January 10, 1997 as supplemented by a final prospectus supplement dated
__________, 199_ (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 1996, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended and the Current Reports on Form 8-K of the
Company dated (the "Exchange Act Documents"), each as filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
<PAGE>
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the certificates
representing the Notes, of which we have examined a specimen), and we have made
such other and further investigations as we deemed necessary to express the
opinions hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to
collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion, relying as to matters of
Florida and Mississippi law upon the opinion dated the date hereof rendered to
you by Beggs & Lane and relying as to matters of New York law upon the opinion
dated the date hereof rendered to you by Dewey Ballantine, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation in the States of
Florida, Georgia and Mississippi and has due corporate authority to carry on the
public utility business in which it is engaged, to own and operate the
properties used by it in such business and to enter into and perform its
obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
2
<PAGE>
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Debt Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Debt Trustee in the manner provided in the Indenture
and delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the
3
<PAGE>
conferences referred to above, (i) we are of the opinion that the Registration
Statement, as of its effective date, and the Final Supplemented Prospectus, as
of _______________, complied as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Maine, Mississippi, Florida and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent.
Yours very truly,
TROUTMAN SANDERS LLP
4
<PAGE>
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32501
Gulf Power Company
Series B _.__% Junior Subordinated Notes due June 30, 2037
Dear Sirs:
We have acted as counsel to The Chase Manhattan Bank (the "Bank") in
connection with (a) the Subordinated Note Indenture, dated as of January 1, 1997
(the "Original Indenture"), between Gulf Power Company (the "Company") and the
Bank, as Trustee, as heretofore supplemented and amended, (b) the Second
Supplemental Indenture dated as of ___________ (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of New York;
ii) the Bank has the corporate trust power and
authority to execute, deliver and perform its duties under the
Indenture, has duly executed and delivered the Indenture, and, insofar
as the laws governing the trust powers of the Bank are concerned and
assuming due authorization, execution and delivery thereof by the
Company, the Indenture constitutes a legal, valid and binding agreement
of the Bank, enforceable against the Bank in accordance with its
<PAGE>
terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting creditors'
rights generally from time to time in effect and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law).
iii) the execution, delivery and performance by the
Bank of the Indenture does not conflict with or constitute a breach of
the charter or bylaws of the Bank.
iv) no approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust powers of
the Bank is required in connection with the execution and delivery by
the Bank of the Indenture or the performance by the Bank of its duties
thereunder, except such as have been obtained, taken or made.
We are admitted to practice in the State of New York, and we
express no opinion as to matters governed by any laws other than the laws of the
State of New York and the Federal law of the United States of America. We are
furnishing this opinion to you solely for your benefit. This opinion is not to
be used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
2
<PAGE>
Schedule IV
[Letterhead of DEWEY BALLANTINE]
__________ __, 199_
The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
GULF POWER COMPANY
Series B _.__% Junior Subordinated Notes, due ____
Ladies and Gentlemen:
We have represented you in connection with (i) the Company's
issuance of $20,000,000 of its Series B ___% Junior Subordinated Notes (the
"Notes") pursuant to a Subordinated Note Indenture dated as of January 1, 1997,
by and between the Company and The Chase Manhattan Bank, as trustee, as
heretofore supplemented and amended and as further supplemented by the Second
Supplemental Indenture dated as of __________ __, 199_ (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated July __, 1997, among the Company and the
underwriters named in Schedule I thereto (the "Underwriters") for whom you are
acting as Representative (the "Underwriting Agreement"). This opinion is being
delivered to you as Representative pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have the
meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined the
registration statement on Form S-3 (Nos. 333-19271, 333-19271-01 and
333-19271-02) pertaining to the Notes (the "Registration Statement"), filed
under the Securities Act of 1933, as amended (the "Act"), and the prospectus
dated January 10, 1997, as supplemented by a final prospectus supplement dated ,
which pursuant to Form S-3 incorporates by reference the Annual Report on Form
10-K of the Company for the fiscal year ended December 31, 1996, the Quarterly
Reports on Form 10-Q of the Company for the quarters ended and the Current
Reports on Form 8-K of the Company, dated
(the "Exchange Act Documents"), each as filed under
<PAGE>
the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
In addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the Notes, of which
we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein referred to as
the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Florida and Mississippi upon the opinion of Beggs & Lane
dated the date hereof and addressed to you and as to all matters covered hereby
which are governed by or dependent upon the laws of the State of Georgia upon
the opinion of Troutman Sanders LLP dated the date hereof and addressed to you,
that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation in the
States of Florida, Georgia and Mississippi and has due corporate authority to
carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Florida Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other
2
<PAGE>
authorization or approval of any Florida or United States governmental body
(other than in connection or in compliance with the provisions of the securities
or "blue sky" laws of any jurisdiction, as to which we express no opinion) is
legally required for the issuance and sale of the Notes in accordance with the
terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Debt Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Debt Trustee in the manner provided in
the Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives
3
<PAGE>
of Arthur Andersen LLP and with counsel to the Company. Based upon our
examination of the Registration Statement, the Final Supplemented Prospectus and
the Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement and the Final Supplemented Prospectus
and our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of ___________, complied as to form in all material
respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing with the
Commission of the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1996 (including such Annual Report on Form 10-K), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the laws of the States of Maine, Mississippi, Georgia and Florida.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP may rely on this
opinion in giving their opinions pursuant
4
<PAGE>
to Section 5(c) of the Underwriting Agreement, insofar as such opinions relate
to matters of New York law, and Troutman Sanders LLP may rely on this opinion in
giving its opinion pursuant to Sections 102, 302 and 904 of the Indenture,
insofar as such opinion relates to matters of New York law.
Very truly yours,
DEWEY BALLANTINE
5
Exhbit 4.2
================================================================================
GULF POWER COMPANY
TO
THE CHASE MANHATTTAN BANK,
TRUSTEE.
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 1, 1997
$20,000,000
SERIES B 7.50% JUNIOR SUBORDINATED NOTES
DUE JUNE 30, 2037
================================================================================
<PAGE>
TABLE OF CONTENTS1
PAGE
ARTICLE 1.................................................................2
SECTION 101. Establishment................................................2
SECTION 102. Definitions..................................................2
SECTION 103. Payment of Principal and Interest............................2
SECTION 104. Denominations................................................3
SECTION 105. Global Securities............................................3
SECTION 106. Transfer.....................................................4
SECTION 107. Redemption...................................................4
ARTICLE 2.................................................................4
SECTION 201. Recitals by Company..........................................5
SECTION 202. Ratification and Incorporation of Original Indenture.........5
SECTION 203. Executed in Counterparts.....................................5
1This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
<PAGE>
THIS SECOND SUPPLEMENTAL INDENTURE is made as of the 1st day
of August, 1997, by and between GULF POWER COMPANY, a Maine corporation, 500
Bayfront Parkway, Pensacola, Florida 32501 (the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation, 450 West 33rd Street, New York,
New York 10001 (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore entered into a
Subordinated Note Indenture, dated as of January 1, 1997 (the "Original
Indenture"), with The Chase Manhattan Bank, as supplemented by a First
Supplemental Indenture, dated as of January 1, 1997 (the "First Supplemental
Indenture"), with The Chase Manhattan Bank;
WHEREAS, the Original Indenture is incorporated herein by this
reference and the Original Indenture, as supplemented by the First Supplemental
Indenture and this Second Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Original Indenture, a new series of Junior
Subordinated Notes may at any time be established by the Board of Directors of
the Company in accordance with the provisions of the Original Indenture and the
terms of such series may be described by a supplemental indenture executed by
the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a new series of
Junior Subordinated Notes;
WHEREAS, additional Junior Subordinated Notes of other series
hereafter established, except as may be limited in the Original Indenture as at
the time supplemented and modified, may be issued from time to time pursuant to
the Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution,
delivery and recording of this Second Supplemental Indenture and to make it a
valid and binding obligation of the Company have been done or performed.
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
<PAGE>
ARTICLE 1
Series B Junior Subordinated Notes
SECTION 101. Establishment. There is hereby established a new series of
Junior Subordinated Notes to be issued under the Indenture, to be designated as
the Company's Series B 7.50% Junior Subordinated Notes due June 30, 2037 (the
"Series B Notes").
There are to be authenticated and delivered $20,000,000 principal
amount of Series B Notes, and no further Series B Notes shall be authenticated
and delivered except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series B Notes shall be issued in definitive fully
registered form.
The Series B Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Series B Notes shall
initially be evidenced by one certificate issued to the Depositary (which shall
be The Depository Trust Company) or its nominee.
The form of the Trustee's Certificate of Authentication for the Series
B Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series B Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 102. Definitions. The following defined terms used herein
shall, unless the context otherwise requires, have the meanings specified below.
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Original Indenture.
"Interest Payment Dates" means March 31, June 30, September 30 and
December 31 of each year.
"Original Issue Date" means August 1, 1997.
"Regular Record Date" means, with respect to each Interest Payment
Date, the close of business on the 15th calendar day preceding such Interest
Payment Date.
"Stated Maturity" means June 30, 2037.
SECTION 103. Payment of Principal and Interest. Principal shall be paid
at the Stated Maturity (or upon earlier redemption). The unpaid principal amount
of the Series B Notes shall bear interest at the rate of 7.50% per annum until
paid or duly provided for. Interest shall be paid quarterly in arrears on each
Interest Payment Date to the Person in whose name the Series B Notes are
registered on the Regular Record Date for such Interest Payment Date, provided
that interest payable at the Stated Maturity of principal or on a Redemption
Date as provided herein will be paid to the Person to whom principal is payable.
Any such interest that is not so punctually paid or duly provided for will
forthwith cease to be payable to the Holders on such Regular Record Date and may
either be paid to the Person or Persons in whose name the Series B Notes are
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee ("Special Record Date"),
notice whereof shall be given to Holders of the Series B Notes not less than ten
(10) days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange,
if any, on which the Series B Notes shall be listed, and upon such notice as may
be required by any such exchange, all as more fully provided in the Original
Indenture.
Payments of interest on the Series B Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series B Notes shall be computed and paid on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series B Notes is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
that is a Business Day, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date the payment was originally payable.
Payment of the principal and interest (including Additional Interest,
if any) due at the Stated Maturity or earlier redemption of the Series B Notes
shall be made upon surrender of the Series B Notes at the Corporate Trust Office
of the Trustee, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Payments of interest (including interest on any Interest Payment Date) will be
made, subject to such surrender where applicable, at the option of the Company,
(i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
SECTION 104. Denominations. The Series B Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 105. Global Securities. The Series B Notes will be issued in
the form of one or more Global Securities registered in the name of the
Depositary (which shall be The Depository Trust Company) or its nominee. Except
under the limited circumstances described below, Series B Notes represented by
the Global Security will not be exchangeable for, and will not otherwise be
issuable as, Series B Notes in definitive form. The Global Securities described
above may not be transferred except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or to a successor Depositary or its nominee.
Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Series B Note shall be exchangeable, except for
another Global Security of like denomination and tenor to be registered in the
name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.
A Global Security shall be exchangeable for Series B Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iii) there shall have occurred an Event of Default with respect to the Series B
Notes. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Series B Notes registered in such names as
the Depositary shall direct.
SECTION 106. Transfer. No service charge will be made for any transfer
or exchange of Series B Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (a) to issue, transfer or exchange
any Series B Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Series B Notes to be called for redemption, and ending at the
close of business on the day of the mailing, or (b) to transfer or exchange any
Series B Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series B Note redeemed in part.
SECTION 107. Redemption. The Series B Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, at any time or from time to time on or after August 1, 2002, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including Additional Interest, if any, to the
Redemption Date.
In the event of redemption of the Series B Notes in part only, a new
Series B Note or Notes for the unredeemed portion will be issued in the name or
names of the Holders thereof upon the surrender thereof.
The Series B Notes will not have a sinking fund.
Notice of redemption shall be given as provided in Section 1104 of the
Original Indenture.
Any redemption of less than all of the Series B Notes shall, with
respect to the principal thereof, be divisible by $25.
ARTICLE 2
Miscellaneous Provisions
SECTION 201. Recitals by Company. The recitals in this Second
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect of Series B Notes and of this Second Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 202. Ratification and Incorporation of Original Indenture. As
heretofore supplemented by the First Supplemental Indenture and as supplemented
hereby, the Original Indenture is in all respects ratified and confirmed, and
the Original Indenture, the First Supplemental Indenture and this Second
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 203. Executed in Counterparts. This Second Supplemental
Indenture may be simultaneously executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
ATTEST: GULF POWER COMPANY
By: By:
Assistant Secretary Vice President
ATTEST: THE CHASE MANHATTAN BANK
By: By:
<PAGE>
EXHIBIT A
FORM OF SERIES B NOTE
<PAGE>
NO. 1 CUSIP NO. ___________
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS AND THIS SECURITY IS ISSUED SUBJECT TO THE
PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
GULF POWER COMPANY
SERIES B 7.50% JUNIOR SUBORDINATED NOTE
DUE JUNE 30, 2037
Principal Amount: $_________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date: August 1, 1997
Stated Maturity: June 30, 2037
Interest Payment Dates: March 31, June 30, September 30 and December 31
Interest Rate: 7.50% per annum
Authorized Denomination: $25
Initial Redemption Date: August 1, 2002
Gulf Power Company, a Maine corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_____________________________________, or registered assigns, the principal sum
of _________ DOLLARS ($__________) on the Stated Maturity shown above (or upon
earlier redemption), and to pay interest thereon from the Original Issue Date
shown above, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly in arrears on each Interest Payment
Date as specified above, commencing on the Interest Payment Date next succeeding
the Original Issue Date shown above and on the Stated Maturity (or upon earlier
redemption) at the rate per annum shown above until the principal hereof is paid
or made available for payment and on any overdue principal and on any overdue
installment of interest. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date (other than an Interest Payment Date
that is the Stated Maturity or on a Redemption Date) will, as provided in such
Indenture, be paid to the Person in whose name this Note (the "Note") is
registered at the close of business on the Regular Record Date as specified
above next preceding such Interest Payment Date, provided that any interest
payable at Stated Maturity or on any Redemption Date will be paid to the Person
to whom principal is payable. Except as otherwise provided in the Indenture, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Notes of this series shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. In the event that any date on which interest is payable on this Note is
not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day that is a Business Day, except that, if such
Business Day is in the next succeeding calendar year, payment shall be made on
the immediately preceding Business Day, in each case with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to remain closed or a day on which the Corporate Trust Office of
the Trustee is closed for business.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Series
B Notes shall be made upon surrender of the Series B Notes at the Corporate
Trust Office of the Trustee, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Payment of interest (including interest on an Interest Payment
Date) will be made, subject to such surrender where applicable, at the option of
the Company, (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or (ii) by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Trustee at least 16 days prior to the
date for payment by the Person entitled thereto.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness (as defined in the Indenture), and this Note
is issued subject to the provisions of the Indenture with respect thereto. Each
Holder of this Note, by accepting the same, (a) agrees to and shall be bound by
such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided, and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ________________, 19__.
GULF POWER COMPANY
By:
Attest:
Assistant Secretary
{Seal of GULF POWER COMPANY appears here}
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
<PAGE>
(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior Subordinated
Notes of the Company (the "Notes"), issued and issuable in one or more series
under a Subordinated Note Indenture, dated as of January 1, 1997, as
supplemented (the "Indenture"), between the Company and The Chase Manhattan
Bank, Trustee (the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures incidental thereto
reference is hereby made for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes issued thereunder and of the terms upon which said Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof as Series B 7.50% Junior Subordinated Notes due
June 30, 2037 (the "Series B Notes") in the aggregate principal amount of up to
$20,000,000. Capitalized terms used herein for which no definition is provided
herein shall have the meanings set forth in the Indenture.
The Company shall have the right, subject to the terms and conditions
of the Indenture, to redeem this Note at any time on or after August 1, 2002 at
the option of the Company, without premium or penalty, in whole or in part, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including any Additional Interest, if any, to the
Redemption Date.
In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the surrender hereof. The Notes will not have a sinking
fund.
If an Event of Default with respect to the Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the Notes at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register,
upon surrender of this Note for registration of transfer at the office or agency
of the Company for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar and duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and of like tenor and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes of
this series are exchangeable for a like aggregate principal amount of Notes of
this series of a different authorized denomination, as requested by the Holder
surrendering the same upon surrender of the Note or Notes to be exchanged at the
office or agency of the Company.
This Note shall be governed by, and construed in accordance with, the
internal laws of the State of New York.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM- as tenants in UNIF GIFT MIN ACT- _______ Custodian ________
common (Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to Minors Act
JT TEN- as joint tenants
with right of
survivorship and ________________________
not as tenants (State)
in common
Additional abbreviations may also be used
though not on the above list.
-------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within instrument in every
particular without alteration or
enlargement, or any change whatever.
<PAGE>
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
Authorized Officer
Exhibit 12.1
7/30/97
GULF POWER COMPANY
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 1996
and the twelve months ended June 30, 1997
<TABLE>
<CAPTION>
Twelve
Months
Ended
Year ended December 31, June 30,
===========================================================
1992 1993 1994 1995 1996 1997
------------------Thousands of Dollars---------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 98,422 $ 96,088 $ 93,407 $ 92,693 $ 94,283 $ 92,042
Federal and state income taxes 28,569 28,304 40,848 33,796 35,417 37,810
Deferred income taxes, net 3,322 5,347 (6,987) 390 2,156 (2,342)
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 46 454 656 187 58 6
---------- --------- --------- -------- --------- ---------
Earnings as defined $ 130,359 $ 130,193 $127,924 $127,066 $131,914 $127,516
========== ========= ========= ======== ========= =========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 35,792 $ 31,344 $ 27,124 $ 23,294 $ 24,691 $ 23,593
Interest on interim obligations 1,041 870 1,509 2,931 2,071 1,464
Amort of debt disc, premium and expense, net 1,032 1,412 1,834 2,014 2,087 2,180
Other interest charges 1,410 2,877 2,442 1,674 1,882 4,179
---------- --------- --------- -------- --------- ---------
Fixed charges as defined $ 39,275 $ 36,503 $ 32,909 $ 29,913 $ 30,731 $ 31,416
========== ========= ========= ======== ========= =========
RATIO OF EARNINGS TO FIXED CHARGES 3.32 3.57 3.89 4.25 4.29 4.06
</TABLE>
Exhibit 12.2
7/30/97
GULF POWER COMPANY
Computation of ratio of earnings to fixed charges plus preferred
dividend requirements for the five years ended December 31, 1996
and the twelve months ended June 30, 1997
<TABLE>
<CAPTION>
Twelve
Months
Ended
Year ended December 31, June 30,
===========================================================================
1992 1993 1994 1995 1996 1997
----------------------------Thousands of Dollars---------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED IN ITEM 503 OF REGULATION S-K:
Income Before Interest Charges $ 98,422 $ 96,088 $ 93,407 $ 92,693 $ 94,283 $ 92,042
Federal and state income taxes 28,569 28,304 40,848 33,796 35,417 37,810
Deferred income taxes, net 3,322 5,347 (6,987) 390 2,156 (2,342)
Deferred investment tax credits - - - - - -
AFUDC - Debt funds 46 454 656 187 58 6
--------- --------- --------- --------- --------- ---------
Earnings as defined $130,359 $130,193 $127,924 $127,066 $131,914 $127,516
========= ========= ========= ========= ========= =========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 35,792 $ 31,344 $ 27,124 $ 23,294 $ 24,691 $ 23,593
Interest on interim obligations 1,041 870 1,509 2,931 2,071 1,464
Amort of debt disc, premium and expense, net 1,032 1,412 1,834 2,014 2,087 2,180
Other interest charges 1,410 2,877 2,442 1,674 1,882 4,179
--------- --------- --------- --------- --------- ---------
Fixed charges as defined 39,275 36,503 32,909 29,913 30,731 31,416
Tax deductible preferred dividends 199 156 156 156 156 156
--------- -------- -------- -------- -------- ---------
39,474 36,659 33,065 30,069 30,887 31,572
--------- --------- --------- --------- --------- ---------
Non-tax deductible preferred dividends 4,904 5,572 5,769 5,657 5,609 5,343
Ratio of net income before taxes to net income x 1.539 x 1.560 x 1.555 x 1.543 x 1.591 x 1.585
--------- --------- --------- --------- --------- ---------
Pref dividend requirements before income taxes 7,547 8,692 8,971 8,729 8,924 8,469
--------- --------- --------- --------- --------- ---------
Fixed charges plus pref dividend requirements $ 47,021 $ 45,351 $ 42,036 $ 38,798 $ 39,811 $ 40,041
========= ========= ========= ========= ========= =========
RATIO OF EARNINGS TO FIXED CHARGES PLUS
PREFERRED DIVIDEND REQUIREMENTS 2.77 2.87 3.04 3.28 3.31 3.18
</TABLE>
