0000044545-01-500012.txt : 20011026
0000044545-01-500012.hdr.sgml : 20011026
ACCESSION NUMBER: 0000044545-01-500012
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 5
CONFORMED PERIOD OF REPORT: 20011005
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20011018
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: GULF POWER CO
CENTRAL INDEX KEY: 0000044545
STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911]
IRS NUMBER: 590276810
STATE OF INCORPORATION: ME
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-02429
FILM NUMBER: 1761202
BUSINESS ADDRESS:
STREET 1: ONE ENERGY PLACE
CITY: PENSACOLA
STATE: FL
ZIP: 32520-0102
BUSINESS PHONE: 8504446111
MAIL ADDRESS:
STREET 1: ONE ENERGY PLACE
CITY: PENSACOLA
STATE: FL
ZIP: 32520-0102
8-K
1
gulf8k.txt
FORM 8-K
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) October 5, 2001
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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.)
One Energy Place, Pensacola, Florida 32520-0102
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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.)
Item 5. Other Events.
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On October 5, 2001, Gulf Power Company (the "Company") entered
into an Underwriting Agreement covering the issue and sale by the Company of
$75,000,000 aggregate principal amount of its Series D 6.10% Senior Notes due
September 30, 2016 (the "Series D Senior Notes"). Said Notes were registered
under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to
the shelf registration statement (Registration Statement Nos. 333-59942,
333-59942-01 and 333-59942-02) of the Company.
The consolidated financial statements of Ambac Assurance
Corporation and subsidiaries as of December 31, 2000 and December 31, 1999, and
for each of the years in the three year period ended December 31, 2000, included
in the Annual Report on Form 10-K of Ambac Financial Group, Inc. (which was
filed with the Securities and Exchange Commission on March 28, 2001; Commission
File Number 1-10777) and the unaudited consolidated financial statements of
Ambac Assurance Corporation and subsidiaries as of June 30, 2001 and for the
periods ended June 30, 2001 and June 30, 2000, included in the Quarterly Report
on Form 10-Q of Ambac Financial Group, Inc. for the period ended June 30, 2001
(which was filed with the Securities and Exchange Commission on August 10,
2001), and information on events subsequent to the Quarterly Report on Form 10-Q
contained in press releases issued on September 13, 2001 and September 18, 2001,
included in the Current Report on Form 8-K of Ambac Financial Group, Inc. (which
was filed with the Commission on September 17, 2001 and September 19, 2001,
respectively), are hereby incorporated by reference in this Current Report on
Form 8-K and in the registration statement and shall be deemed to be a part
hereof. The consent of KPMG LLP is filed herewith as Exhibit 23.4.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
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(c) Exhibits.
1 Underwriting Agreement, dated October 5, 2001, among the
Company and A.G. Edwards & Sons, Inc., Edward D. Jones &
Co., L.P. and Wachovia Securities, Inc., as the
Underwriters.
4.2 Fourth Supplemental Indenture to Senior Note
Indenture dated as of October 18, 2001, providing
for the issuance of the Company's Series D 6.10%
Senior Notes due September 30, 2016.
4.9 Form of Series D 6.10% Senior Note due September 30, 2016.
(included in Exhibit 4.2 above).
12.1 Computation of ratio of earnings to fixed charges.
23.4 Consent of KPMG LLP.
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 hereunto duly authorized.
Date: October 18, 2001 GULF POWER COMPANY
By
/s/ Wayne Boston
Wayne Boston
Assistant Secretary
EX-1
3
ex1.txt
UNDERWRITING AGREEMENT
Exhibit 1
$75,000,000 Series D 6.10% Senior Notes
due September 30, 2016
GULF POWER COMPANY
UNDERWRITING AGREEMENT
October 5, 2001
A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with A.G. Edwards & Sons, Inc., acting
as the representative (the "Representative") of the underwriters named in
Schedule I hereto (the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $75,000,000 principal amount of the Series D 6.10%
Senior Notes due September 30, 2016 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and amended and as to be further
supplemented and amended by a fourth supplemental indenture, dated as of October
18, 2001, to the Base Indenture relating to the Senior Notes (the "Supplemental
Indenture," and together with the Base Indenture and any other amendments or
supplements thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The
Company represents and warrants to the
Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File
Nos. 333-59942, 333-59942-01 and 333-59942-02), in respect
of the Senior Notes and certain other securities has been
prepared and filed in accordance with the provisions of the
Securities Act of 1933, as amended (the "1933 Act"), with
the Securities and Exchange Commission (the "Commission");
such registration statement, as amended, and any
post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Underwriters,
has been declared effective by the Commission in such form
(except that copies of the registration statement, as
amended, and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all
documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose
has been initiated or, to the best knowledge of the Company,
threatened by the Commission (any preliminary prospectus, as
supplemented by a preliminary prospectus supplement,
included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being
hereinafter called a "Preliminary Prospectus"); such
registration statement, as it became effective, including
the exhibits thereto and all documents incorporated by
reference therein pursuant to Item 12 of Form S-3 at the
time such registration statement became effective, being
hereinafter called the "Registration Statement"; the
prospectus relating to the Senior Notes, in the form in
which it was included in the Registration Statement at the
time it became effective, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, as of
the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and the Prospectus
as amended or supplemented in final form by a prospectus
supplement relating to the Senior Notes in the form in which
it is filed with the Commission, pursuant to Rule 424(b)
under the 1933 Act in accordance with Section 3(g) hereof,
including any documents incorporated by reference therein as
of the date of such filing, being hereinafter called the
"Final Supplemented Prospectus."
(b) The documents incorporated by reference in the
Registration Statement or Prospectus, when they were filed
with the Commission, complied in all material respects with
the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such
time of filing, when read together with the Prospectus, none
of such documents contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents
are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and
the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may
be amended or supplemented, will not contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that the
Company makes no warranty or representation to the
Underwriters with respect to: (A) any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the
Underwriters expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the captions "Description of
the Series D Senior Notes - Book-Entry Only Issuance -- The
Depository Trust Company" and "The Policy and the Insurer"
or in Appendix A thereto.
(c) The Registration Statement, the Prospectus 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, and (ii)
as of the applicable filing date as to the Final
Supplemented Prospectus and any Prospectus as further
amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
except that the Company makes no warranties or
representations with respect to (A) that part of the
Registration Statement which shall constitute the Statements
of Eligibility (Form T-1) (collectively, the "Form T-1")
under the Trust Indenture Act of 1939, as amended (the "1939
Act"), (B) statements or omissions made in the Registration
Statement or the Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing
to the Company by the Underwriters expressly for use therein
or (C) any information set forth in the Final Supplemented
Prospectus under the captions "Description of the Series D
Senior Notes - Book-Entry Only Issuance -- The Depository
Trust Company" and "The Policy and the Insurer" or in
Appendix A thereto.
(d) With respect to the Registration Statement, the
conditions for use of Form S-3, as set forth in the General
Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Final
Supplemented Prospectus, except as otherwise stated therein,
there has been no material adverse change in the business,
properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing
under the laws of the State of Maine, is duly qualified to
carry on its business as a foreign corporation under the
laws of the States of Florida, Georgia and Mississippi, and
has due corporate authority to carry on the public utility
business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and
perform its obligations under this Agreement and the
Indenture and to issue and sell the Senior Notes to the
Underwriters.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Indenture has been duly authorized by the Company
and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization,
execution and delivery of the Indenture by the Trustee, the
Indenture will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other similar laws
affecting creditors' rights generally or (2) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in
all material respects to all statements relating thereto
contained in the Final Supplemented Prospectus; and, on the
Closing Date, the Indenture will have been duly qualified
under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been
duly authorized by the Company and, on the Closing Date, the
Senior Notes will have been duly executed by the Company
and, when authenticated in the manner provided for in the
Indenture and delivered against payment therefor as
described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions, will be in
the form contemplated by, and entitled to the benefits of,
the Indenture and will conform in all material respects to
all statements relating thereto in the Final Supplemented
Prospectus.
(j) The execution, delivery and performance by the Company
of this Agreement, the Indenture and the Senior Notes and
the consummation by the Company of the transactions
contemplated herein and therein and compliance by the
Company with its obligations hereunder and thereunder shall
have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and
do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or
to which any of
its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or
materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign,
or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or
any of its properties.
(k) The Company has duly authorized all necessary action to
be taken by it for the procurement of an irrevocable
financial guarantee insurance policy (the "Insurance
Policy") issued by Ambac Assurance Corporation (the
"Insurer"), insuring the payment of principal and interest
on the Senior Notes, when due.
(l) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Senior Notes or the transactions by the Company contemplated
in this Agreement, except (A) such as may be required under
the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Public Utility Holding
Company Act of 1935, as amended; (C) the qualification of
the Indenture under the 1939 Act; (D) the approval of the
Florida Public Service Commission (the "Florida
Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS;
CLOSING.
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter, severally and not jointly, agrees to purchase
from the Company, the principal amount of Senior Notes set forth
in Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of Senior Notes that such
Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof), at a price equal to 97.65% of
the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Troutman Sanders LLP, Bank
of America Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia at
10:00 A.M., Atlanta time, on October 18, 2001 (unless postponed
in accordance with the provisions of Section 10) or such other
time, place or date as shall be agreed upon by the Underwriters
and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the
Company by wire transfer in federal funds at the Closing Date
against delivery of the Senior Notes to the Representative. 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 Senior 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 Senior 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 Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the
offices of The Depository Trust Company in New York, New York or
its designee, and the Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made
available for examination by the Underwriters not later than
12:00 Noon, New York time, on the last business day prior to the
Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to
the Underwriters conformed copies of the Registration Statement
as originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each
case including all exhibits filed therewith, and including
unsigned copies of each consent and certificate included therein
or filed as an exhibit thereto, except exhibits incorporated by
reference, unless specifically requested). As soon as the Company
is advised thereof, it will advise the Representative orally of
the issuance of any stop order under the 1933 Act with respect to
the Registration Statement, or the institution of any proceedings
therefor, of which the Company shall have received notice, and
will use its best efforts to prevent the issuance of any such
stop order and to secure the prompt removal thereof, if issued.
The Company will deliver to the Representative sufficient
conformed copies of the Registration Statement, the Prospectus
and the Final Supplemented Prospectus and of all supplements and
amendments thereto (in each case without exhibits) for
distribution to the Underwriters and, from time to time, as many
copies of the Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such quantities
as the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery
of a prospectus shall be required by law in connection with the
sale of any Senior Notes by an Underwriter, any event relating to
or affecting the Company, or of which the Company shall be
advised in writing by the 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 Final
Supplemented Prospectus, as the case may be, in order to make the
Final Supplemented Prospectus not misleading in the light of the
circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the
Final Supplemented Prospectus or to file under the 1934 Act any
document incorporated by reference in the Preliminary Prospectus
or Prospectus in order to comply with the 1933 Act or the 1934
Act, the Company forthwith will (i) notify the Underwriters to
suspend solicitation of purchases of the Senior Notes and (ii) at
its expense, make any such filing or prepare and furnish to the
Underwriters a reasonable number of copies of a supplement or
supplements or an amendment or amendments to the Final
Supplemented Prospectus which will supplement or amend the Final
Supplemented Prospectus so that, as supplemented or amended, it
will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the
Final Supplemented Prospectus is delivered, not misleading or
which will effect any other necessary compliance. In case any
Underwriter is required to deliver a prospectus in connection
with the sale of any Senior Notes after the expiration of the
period specified in the preceding sentence, the Company, upon the
request of such Underwriter, will furnish to such Underwriter, at
the expense of such Underwriter, a reasonable quantity of a
supplemented or amended prospectus, or supplements or amendments
to the Final Supplemented Prospectus, complying with Section
10(a) of the 1933 Act. During the period specified in the second
sentence of this subsection, the Company will continue to prepare
and file with the Commission on a timely basis all documents or
amendments required under the 1934 Act and the rules and
regulations thereunder; provided, that the Company shall not file
such documents or amendments without also furnishing copies
thereof prior to such filing to the Underwriters and Dewey
Ballantine LLP.
(c) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Senior Notes for offering and sale
under the applicable securities laws of such states and the other
jurisdictions of the United States as the Underwriters may
designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a consent to service
of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to its security
holders as soon as practicable but not later than 45 days after
the close of the period covered thereby, an earnings statement of
the Company (in form complying with the provisions of Rule 158 of
the rules and regulations under the 1933 Act) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in Rule 158) of the Registration Statement.
(e) During a period of 15 days from the date of this Agreement,
the Company will not, without the Underwriters' prior written
consent, directly or indirectly, sell, offer to sell, grant any
option for the sale of, or otherwise dispose of, any Senior Notes
or any security convertible into or exchangeable into or
exercisable for the Senior Notes or any debt securities
substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement).
(f) As soon as practicable after the date of this Agreement, and
in any event within the time prescribed by Rule 424 under the
1933 Act, to file the Final Supplemented Prospectus with the
Commission and to advise the Representative of such filing and to
confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all expenses
incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements
of the Company's counsel and accountants, (iv) the qualification of
the Senior Notes under securities laws in accordance with the
provisions of Section 3(c) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any
blue sky survey (such fees and disbursements of counsel shall not
exceed $3,500), (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto and of the Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of any blue sky
survey, (vii) the fee of the National Association of Securities
Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the
Senior Notes, (ix) any fees payable in connection with the rating of
the Senior Notes, (x) the cost and charges of any transfer agent or
registrar, (xi) the premium payable to the Insurer in connection with
the issuance of the Insurance Policy, and (xii) the cost of qualifying
the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in
connection with their offering of the Senior Notes including fees and
disbursements of their counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and
pay for the Senior Notes are subject to the
following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect on the Closing Date and
no proceedings for that purpose shall be pending before, or to
the knowledge of the Company threatened by, the Commission on
such date. If filing of the Final Supplemented Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Final
Supplemented Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424.
(b) Any required orders of the 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 Underwriters, are
deemed acceptable to the Underwriters and the Company and all
provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriters and the Company unless
within 24 hours after receiving a copy of any such order any
party to this Agreement shall give notice to the other parties to
the effect that such order contains an unacceptable provision).
(c) On the Closing Date the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Beggs & Lane, a
Registered Limited Liability Partnership, general counsel for the
Company, substantially in the form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine &
Moore, counsel to the Trustee, substantially in the form attached
hereto as Schedule III.
(4) The opinion, dated the Closing Date, of Dewey Ballantine LLP,
counsel for the Underwriters, substantially in the form attached
hereto as Schedule IV.
(5) The opinion, dated the Closing Date, of counsel to the
Insurer, substantially in the form attached hereto as Schedule V.
(6) At the Closing Date, there shall not have been, since the
date hereof or since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, and the Underwriters shall have received
a certificate of the President or any Vice President of the Company,
and dated as of the Closing Date, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same
force and effect as though expressly made at and as of the Closing
Date, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or prior to
the Closing Date, and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been initiated or, to the knowledge of the Company,
threatened by the Commission.
(7) On the Closing Date, the Underwriters shall have received
from Arthur Andersen LLP a letter dated the Closing Date to the effect
that: (A) they are independent public accountants with respect to the
Company within the meaning of the 1933 Act and the rules and
regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the Final
Supplemented Prospectus comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the
rules and regulations under the 1934 Act; and (C) on the basis of
certain limited procedures performed through a specified date not more
than five business days prior to the date of such letter, namely (i)
reading the minute books of the Company; (ii) performing the
procedures specified by the American Institute of Certified Public
Accountants ("AICPA") for a review of interim financial information as
described in Statement on Auditing Standards No. 71, "Interim
Financial Information", on the unaudited financial statements, if any,
of the Company incorporated in the Final Supplemented Prospectus and
of the latest available unaudited financial statements of the Company,
if any, for any calendar quarter subsequent to the date of those
incorporated in the Final Supplemented Prospectus; and (iii) making
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters regarding such unaudited
financial statements or any specified unaudited amounts derived
therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted
auditing standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Arthur Andersen LLP make no representations as to the
sufficiency of such procedures for the Underwriters' purposes),
nothing came to their attention that caused them to believe that: (1)
any material modifications should be made to the unaudited condensed
financial statements, if any, incorporated in the Final Supplemented
Prospectus, for them to be in conformity with generally accepted
accounting principles; (2) such unaudited condensed financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act as it applies to
Form 10-Q and the related published rules and regulations thereunder;
(3) the unaudited amounts for Operating Revenues, Earnings Before
Interest and Income Taxes and Net Income After Dividends on Preferred
Stock and the unaudited Ratio of Earnings to Fixed Charges set forth
in the Final Supplemented Prospectus do not agree with the amounts set
forth in or derived from the unaudited financial statements for the
same period or were not determined on a basis substantially consistent
with that of the corresponding audited amounts or ratios included or
incorporated by reference in Registration Statement; (4) as of a
specified date not more than five business days prior to the date of
delivery of such letter, there has been any change in the capital
stock or long-term debt of the Company or any decrease in net assets
as compared with amounts shown in the latest audited balance sheet
incorporated in the Final Supplemented Prospectus, except in each case
for changes or decreases which (i) the Final Supplemented Prospectus
discloses have occurred or may occur, (ii) are occasioned by the
declaration of dividends, (iii) are occasioned by draw-downs under
existing pollution control financing arrangements, (iv) are occasioned
by draw-downs and regularly scheduled payments of capitalized lease
obligations, (v) are occasioned by the purchase or redemption of bonds
or stock to satisfy mandatory or optional redemption provisions
relating thereto, or (vi) are disclosed in such letter; and (5) the
unaudited amounts for Operating Revenues, Earnings Before Interest and
Income Taxes and Net Income After Dividends on Preferred Stock and the
unaudited Ratio of Earnings to Fixed Charges for any calendar quarter
subsequent to those set forth in (3) above, which if available shall
be set forth in such letter, do not agree with the amounts set forth
in or derived from the unaudited financial statements for the same
period or were not determined on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
incorporated by reference in the Final Supplemented Prospectus.
(8) On the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as it may reasonably
require for the purpose of enabling it to pass upon the issuance and
sale of the Senior Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Senior Notes as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and Dewey Ballantine LLP, counsel for the Underwriters.
(9) That no amendment or supplement to the Registration Statement
or the Final Supplemented Prospectus filed subsequent to the date of
this Agreement (including any filing made by the Company pursuant to
Section 13 or 14 of the 1934 Act) shall be unsatisfactory in form to
Dewey Ballantine LLP or shall contain information (other than with
respect to an amendment or supplement relating solely to the activity
of the Underwriters) which, in the reasonable judgment of the
Representative, shall materially impair the marketability of the
Senior Notes.
(10) The Company shall have performed its obligations when and as
provided under this Agreement.
(11) Evidence that the Insurance Policy has been issued by the
Insurer and confirmation that the Senior Notes have been rated at
least Aaa by Moody's Investor Services, Inc. and at least AAA by
Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
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 any such Underwriter and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus or,
if the Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14 of
the 1934 Act which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, or arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
the Underwriters for use therein and except that this indemnity with respect to
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
if the Company shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b) Each Underwriter agrees severally and not jointly, to indemnify
and hold harmless the Company, its directors and such of its officers who
have signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act to the same extent and upon the same terms as
the indemnity agreement of the Company set forth in Section 7(a) hereof,
but only with respect to alleged untrue statements or omissions made in the
Registration Statement, the Preliminary Prospectus, the Prospectus or the
Final Supplemented Prospectus, or such documents as amended or
supplemented, in reliance upon and in conformity with information furnished
in writing to the Company by such Underwriter for use therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representative
pursuant to subsection (a) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters for the reasonable fees
and disbursements of Dewey Ballantine LLP and for the out of pocket
expenses (in an amount not exceeding $10,000) reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of
the Senior Notes and, upon such reimbursement, the Company shall be
absolved from any further liability hereunder, except as provided in
Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Senior Notes that it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the non-defaulting
Underwriters 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 non-defaulting Underwriters shall not have completed
such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed
10% of the Senior Notes, 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
Senior Notes, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters 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 A.G. Edwards & Sons, Inc., One North
Jefferson, St. Louis, Missouri 63103, Attention: Corporate Debt Syndicate
Desk; notices to the Company shall be mailed to One Energy Place, Pensacola,
Florida 32520-0100, Attention: Corporate Secretary, with a copy to Southern
Company Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303,
Attention: Christopher J. Kysar.
SECTION 12. PARTIES. This Agreement shall inure to the
benefit of and be binding upon the Underwriters, the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation,
other than the Underwriters and the Company and their respective successors
and the controlling persons and officers and directors referred to in Section
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and
the Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Senior
Notes from the Underwriters shall be deemed to be a successor by reason merely
of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in said State. Except
as otherwise set forth herein, specified times of day refer to New York City
time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
A.G. EDWARDS & SONS, INC.
as Representative of the Underwriters
By:___________________________
Title:
SCHEDULE I
Principal Amount of
NAME OF UNDERWRITER Senior Notes
A.G. Edwards & Sons, Inc. $25,000,000
Edward D. Jones & Co., L.P. 25,000,000
Wachovia Securities, Inc. 25,000,000
TOTAL $75,000,000
Schedule II-A
[Letterhead of Beggs & Lane]
__________, 2001
A.G. Edwards & Sons, Inc.
Edward D. Jones & Co., L.P.
Wachovia Securities, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
GULF POWER COMPANY
Series D ____% Senior Notes
due September 30, 2016
Ladies and Gentlemen:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance of $75,000,000
aggregate principal amount of its Series D ______% Senior Notes due September
30, 2016 (the "Notes") pursuant to a Senior Note Indenture dated as of January
1, 1998, by and between the Company and The Chase Manhattan Bank, as trustee
(the "Trustee"), as heretofore supplemented and as further supplemented by the
Fourth Supplemental Indenture dated as of __________, 2001 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated _______, 2001, among the Company and you (the
"Underwriters") (the "Underwriting Agreement"). This opinion is being delivered
to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-______and
333-______) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2001 as supplemented by a final prospectus supplement dated
__________, 2001 (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, 2000, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended ____________ and the Current Reports on Form
8-K of the Company dated __________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Act, the Exchange Act,
the Trust Indenture Act of 1939, as amended and to the applicable rules and
regulations of the Commission under said Acts and in expressing the opinions
stated herein, with respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Georgia law and the federal law of the United States upon the opinion dated the
date hereof rendered to you by Troutman Sanders LLP, and relying as to matters
of New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company and with representatives of Arthur Andersen
LLP. Based upon our examination of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents, our investigations made
in connection with the preparation of the Registration Statement, the Final
Supplemented Prospectus and the Exchange Act Documents and our participation in
the conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Final Supplemented
Prospectus, as of __________, complied as to form in all material respects with
the requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that the Exchange Act Documents, as of their
respective dates of filing with the Commission, complied as to form in all
material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement therein of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company" and "The Policy and the Insurer" or in Appendix A
thereto.
We are members of the State Bar of Florida and we do not
express any opinion herein concerning any law other than the law of the States
of Florida and Mississippi and, to the extent set forth herein, the laws of the
States of Maine, Georgia and New York and the federal law of the United States.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey Ballantine LLP
may rely on this opinion in giving their opinions pursuant to the Underwriting
Agreement insofar as such opinions relate to matters of Florida and Mississippi
law.
Yours very truly,
BEGGS & LANE
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________, 2001
A.G. Edwards & Sons, Inc.
Edward D. Jones & Co., L.P.
Wachovia Securities, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
GULF POWER COMPANY
Series D ____% Senior Notes
due September 30, 2016
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $75,000,000 aggregate principal
amount of its Series D _____% Senior Notes due September 30, 2016 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as
heretofore supplemented and as further supplemented by the Fourth Supplemental
Indenture dated as of ________, 2001 (collectively, the "Indenture"); and (ii)
the purchase by you of the Notes pursuant to the terms of an Underwriting
Agreement dated _____, 2001 among the Company and you (the "Underwriting
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(2)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-______and 333-______
) pertaining to the Notes (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated
___________, 2001 as supplemented by a final prospectus supplement dated
__________, 2001 (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, 2000, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended ____________ and the Current Reports on Form
8-K of the Company dated _________ (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Florida and Mississippi law upon the opinion dated the date hereof rendered to
you by Beggs & Lane, a Registered Limited Liability Partnership ("Beggs &
Lane"), and relying as to matters of New York law upon the opinion dated the
date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company" and "The Policy and the Insurer" or in Appendix A
thereto.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Maine, Florida, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Beggs & Lane may rely on this opinion in
giving its opinion pursuant to the Underwriting Agreement insofar as such
opinion relates to matters of Georgia law and the federal law of the United
States and Dewey Ballantine LLP may rely on this opinion in giving its opinion
pursuant to the Underwriting Agreement insofar as such opinion relates to
matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 2001
A.G. Edwards & Sons, Inc.
Edward D. Jones & Co., L.P.
Wachovia Securities, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32520
Ambac Assurance Corporation
1 State Street Plaza
New York, New York 10004
Gulf Power Company
Series D ____% Senior Notes
due September 30, 2016
Ladies and Gentlemen:
We have acted as counsel to The Chase Manhattan Bank (the
"Bank") in connection with (a) the Senior Note Indenture, dated as of January 1,
1998 as heretofore supplemented (the "Original Indenture"), between Gulf Power
Company (the "Company") and the Bank, as Trustee, and (b) the Fourth
Supplemental Indenture dated as of October , 2001 (together with the Original
Indenture, herein called the "Indenture"), between the Company and the Bank, as
Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State of
New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture, has duly executed
and delivered the Indenture, and, insofar as the laws governing the trust powers
of the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its terms
subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of the
Indenture do not conflict with or constitute a breach of the charter or bylaws
of the Bank; and
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State
of New York having jurisdiction over the trust powers of the Bank is required
in connection with the execution and delivery by the Bank of the Indenture or
the performance by the Bank of its duties thereunder, except such as have
been obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2001
A.G. Edwards & Sons, Inc.
Edward D. Jones & Co., L.P.
Wachovia Securities, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
GULF POWER COMPANY
Series D ____% Senior Notes
due September 30, 2016
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Gulf Power Company (the "Company") of $75,000,000 of
its Series D _____% Senior Notes (the "Notes") pursuant to a Senior Note
Indenture dated as of January 1, 1998, by and between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Fourth Supplemental Indenture dated as of __________
__, 2001 (collectively, the "Indenture"); and (ii) the purchase by you of the
Notes pursuant to the terms of an Underwriting Agreement dated ________________,
2001, among the Company and the Underwriters (the "Underwriting Agreement").
This opinion is being delivered to you pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-_____ and 333-______
) pertaining to the Notes (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2001, 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, 2000,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended
_________, and the Current Reports on Form 8-K of the Company dated __________
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Florida and Mississippi upon the opinion of Beggs & Lane,
a Registered Limited Liability Partnership ("Beggs & Lane"), dated the date
hereof and addressed to you and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Georgia upon the opinion
of Troutman Sanders LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation in the
States of Florida, Georgia and Mississippi, and has due corporate authority to
carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Florida Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series D Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company" and "The Policy and the Insurer" or in Appendix A
thereto.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Maine, Florida, Mississippi and Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP may rely on this
opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Troutman Sanders LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
Schedule V
[Letterhead of Insurer's counsel]
__, 2001
A.G. Edwards & Sons, Inc.
Edward D. Jones & Co., L.P.
Wachovia Securities, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, Missouri 63103
GULF POWER COMPANY
Series D ____ % Senior Notes
Due September 30, 2016
Ladies and Gentlemen:
This opinion has been requested of the undersigned, a Vice
President and an Assistant General Counsel of Ambac Assurance Corporation, a
Wisconsin stock insurance company ("Ambac Assurance"), in connection with the
issuance by Ambac Assurance of a certain Financial Guaranty Insurance Policy and
endorsement thereto, effective as of the date hereof (the "Policy"), insuring
$75,000,000 in aggregate principal amount of the Gulf Power Company (the
"Issuer") Series D _% Senior Notes due September 30, 2016 (the "Senior Notes").
In connection with my opinion herein, I have examined the
Policy, such statutes, documents and proceedings as I have considered necessary
or appropriate under the circumstances to render the following opinion,
including, without limiting the generality of the foregoing, certain statements
contained in the Prospectus Supplement dated __, 2001 to the Prospectus of the
Issuer dated __, 199_ relating to the Obligations (the "Prospectus Supplement")
under the headings "The Policy and the Insurer" and "Appendix A - Form of
Policy."
Based upon the foregoing and having regard to legal
considerations I deem relevant, I am of the opinion that:
1. Ambac Assurance is a stock insurance company duly organized
and validly existing under the laws of the State of Wisconsin
and duly qualified to conduct an insurance business in the
State of Mississippi.
2. Ambac Assurance has full corporate power and authority to
execute and deliver the Policy and the Policy has been duly
authorized, executed and delivered by Ambac Assurance and
constitutes a legal, valid and binding obligation of Ambac
Assurance enforceable in accordance with its terms except to
the extent that the enforceability (but not the validity) of
such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law
or enactment now or hereafter enacted affecting the
enforcement of creditors' rights.
3. The execution and delivery by Ambac Assurance of the Policy
will not, and the consummation of the transactions
contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the
terms, conditions or provisions of the Certificate of
Authority, Articles of Incorporation or By-Laws of Ambac
Assurance, or any restriction contained in any contract,
agreement or instrument to which Ambac Assurance is party or
by which it is bound or constitute a default under any of the
foregoing.
4. Proceedings legally required for the issuance of the Policy
have been taken by Ambac Assurance and licenses, orders,
consents or other authorizations or approvals of any
governmental boards or bodies legally required for the
enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or
approvals not obtained are not material to the enforceability
of the Policy.
5. The statements contained in the Prospectus Supplement under
the heading "The Policy and the Insurer", insofar as such
statements constitutes summaries of the matters referred to
therein, accurately reflect and fairly present the information
purported to be shown and, insofar as such statements describe
Ambac Assurance, fairly and accurately describe Ambac
Assurance. The form of Policy contained in the Prospectus
Supplement under the heading "Appendix A - Form of Policy" is
a true and complete copy of the form of Policy.
Very truly yours,
Vice President and
Assistant General Counsel
EX-4
4
ex4-2.txt
INDENTURE
Exhibit 4.2
GULF POWER COMPANY
TO
THE CHASE MANHATTTAN BANK,
TRUSTEE.
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 18, 2001
$75,000,000
SERIES D 6.10% SENIOR NOTES
DUE SEPTEMBER 30, 2016
TABLE OF CONTENTS 1
ARTICLE 1..................................................................1
SECTION 101. Establishment...........................................1
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............................................................. ....5
SECTION 201. Supplemental Indentures.................................5
SECTION 202. Events of Default and Remedies..........................5
SECTION 203. Insurance Policy Payment Procedures.....................5
SECTION 204. Application of Term "Outstanding" to Series D Notes.....6
SECTION 205. Insurer as Third Party Beneficiary......................7
SECTION 206. Concerning the Special Insurance Provisions.............7
ARTICLE 3..................................................................7
SECTION 301. Recitals by Company.....................................7
SECTION 302. Ratification and Incorporation of Original Indenture....7
SECTION 303. Executed in Counterparts................................7
_____________________
1 This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
THIS FOURTH SUPPLEMENTAL INDENTURE is made as of the 18th day
of October, 2001, by and between GULF POWER COMPANY, a Maine corporation, One
Energy Place, Pensacola, Florida 32520-0100 (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 Senior
Note Indenture, dated as of January 1, 1998 (the "Original Indenture"), as
heretofore supplemented;
WHEREAS, the Original Indenture is incorporated herein by
this reference and the Original Indenture, as heretofore supplemented and as
further supplemented by this Fourth Supplemental Indenture, is herein called
the "Indenture";
WHEREAS, under the Original Indenture, a new series of
Senior Notes may at any time be established pursuant to a supplemental
indenture executed by the Company and the Trustee;
WHEREAS, the Company proposes to create under the Indenture a
new series of Senior Notes;
WHEREAS, additional Senior 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
and delivery of this Fourth 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:
ARTICLE 1
Series D Senior Notes
SECTION 101. Establishment. There is hereby established a new series of
Senior Notes to be issued under the Indenture, to be designated as the Company's
Series D 6.10% Senior Notes due September 30, 2016 (the "Series D Notes").
There are to be authenticated and delivered $75,000,000 principal
amount of Series D Notes, and such principal amount of the Series D Notes may be
increased from time to time pursuant to Section 301 of the Original Indenture.
All Series D Notes need not be issued at the same time and such series may be
reopened at any time, without the consent of any Holder, for issuances of
additional Series D Notes. Any such additional Series D Notes will have the same
interest rate, maturity and other terms as those initially issued. No Series D
Notes shall be authenticated and delivered in excess of the principal amount as
so increased except as provided by Sections 203, 303, 304, 907 or 1107 of the
Original Indenture. The Series D Notes shall be issued in definitive fully
registered form.
The Series D Notes shall be issued in the form of one Global Security
in substantially the form set out in Exhibit A hereto. The Depositary with
respect to the Series D Notes shall be The Depository Trust Company.
The form of the Trustee's Certificate of Authentication for the Series
D Notes shall be in substantially the form set forth in Exhibit B hereto.
Each Series D 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.
"Insurance Trustee" means The Bank of New York, New York, New York, or
any successor thereto, as the Insurance Trustee under the Policy.
"Insurer" means Ambac Assurance Corporation, a Wisconsin-domiciled
stock insurance corporation.
"Interest Payment Dates" means January 1, April 1, July 1 and October 1
of each year, commencing January 1, 2002.
"Original Issue Date" means October 18, 2001.
"Policy" means the financial guaranty insurance policy issued by the
Insurer with respect to payments due for principal of and interest on the Series
D Notes as provided in such policy.
"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 September 30, 2016.
SECTION 103. Payment of Principal and Interest. The principal of the
Series D Notes shall be due at Stated Maturity (unless earlier redeemed). The
unpaid principal amount of the Series D Notes shall bear interest at the rate of
6.10% 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 D 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 D 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, notice
whereof shall be given to Holders of the Series D 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 D 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 D Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series D 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 D 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 (and without any interest or other payment in respect of
any such delay), with the same force and effect as if made on the date the
payment was originally payable.
Payment of the principal and interest due at the Stated Maturity or
earlier redemption of the Series D Notes shall be made upon surrender of the
Series D Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series D Notes shall be paid 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 or other electronic 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 D Notes may be issued in the
denominations of $1,000, or any integral multiple thereof.
SECTION 105. Global Securities. The Series D 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 D Notes represented by
the Global Securities will not be exchangeable for, and will not otherwise be
issuable as, Series D 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 D 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 D 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 by the Company, 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 by the
Company, in each case within 90 days after the Company receives such notice or
becomes aware of such cessation, (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 D Notes. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series D 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 D 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 D Notes except to the Insurer during a period beginning at the
opening of business fifteen (15) days before the day of the mailing of a notice
pursuant to Section 1104 of the Original Indenture identifying the serial
numbers of the Series D 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 D Notes theretofore selected for redemption in whole or in part, except
the unredeemed portion of any Series D Note redeemed in part.
SECTION 107. Redemption. The Series D 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 October 1, 2004, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest to the Redemption Date.
In the event of redemption of the Series D Notes in part only, a new
Series D 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 D 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 D Notes shall, with
respect to the principal thereof, be divisible by $1,000.
ARTICLE 2
Special Insurance Provisions
SECTION 201. Supplemental Indentures. The consent of the Insurer shall
be required with respect to any indenture or indentures supplemental to the
Original Indenture requiring the consent of the Holders of the Series D Notes
pursuant to Section 902 of the Original Indenture.
SECTION 202. Events of Default and Remedies. Subject to Section 107 of
the Original Indenture and to the Trust Indenture Act, including, without
limitation, Sections 316(a)(1) and 317(a) thereof, if an Event of Default with
respect to the Series D Notes occurs and is continuing, the Insurer shall be
entitled to control and direct the enforcement of all rights and remedies
granted to the Holders of the Series D Notes or the Trustee for the benefit of
the Holders of the Series D Notes under the Indenture, including, without
limitation, (i) the right to accelerate the principal of the Series D Notes as
provided in Section 502 of the Original Indenture, and (ii) the right to annul
any such declaration of acceleration, and the Insurer shall also be entitled to
approve any waiver of an Event of Default with respect to the Series D Notes,
the obligation of the Trustee to comply with any such direction to be subject to
compliance with the conditions set forth in Sections 512 and 603(e) of the
Original Indenture (as if references in those Sections to Holders were
references to the Insurer) and the protections provided to the Trustee by
Section 601(c)(3) of the Original Indenture shall be applicable with respect to
any direction from the Insurer given pursuant hereto (as if references in said
Section to Holders were references to the Insurer).
In addition to the Events of Default listed in the Original Indenture,
the occurrence and continuance of an "Event of Default" under the Insurance
Agreement dated as of October 18, 2001 between the Company and the Insurer, as
the same may be amended, shall also constitute an Event of Default with respect
to the Series D Notes.
SECTION 203. Insurance Policy Payment Procedures. (a) The Insurer will
make payments of principal or interest due on the Series D Notes in accordance
with the Policy on or before the first (1st) Business Day next following the
date on which the Insurer shall have received notice of Nonpayment (as defined
in the Policy) from the Trustee.
(b) In the event of Nonpayment and notification thereof to the
Insurer, the Security Registrar shall make available to the Insurer and, at the
Insurer's direction, to the Insurance Trustee, the books kept by the Security
Registrar for the registration and for the registration of transfer of Series D
Notes as provided in the Indenture.
(c) The Trustee shall, at the time it provides notice to the
Insurer pursuant to (a) above, notify Holders of Series D Notes entitled to
receive the payment of principal or interest thereon from the Insurer (i) as to
the fact of such entitlement, (ii) that the Insurer will remit to them all or a
part of the interest payments next coming due upon proof of Holder entitlement
to interest payments and delivery to the Insurance Trustee, in form satisfactory
to the Insurance Trustee, of an appropriate assignment of the Holder's right to
payment, (iii) that should they be entitled to receive full payment of principal
from the Insurer, they must surrender their Series D Notes (along with an
appropriate instrument of assignment in form satisfactory to the Insurance
Trustee to permit ownership of such Series D Notes to be registered in the name
of the Insurer) for payment to the Insurance Trustee, and not the Trustee or any
Paying Agent, and (iv) that should they be entitled to receive partial payment
of principal from the Insurer, they must surrender their Series D Notes for
payment thereon first to the Trustee, who shall note on such Series D Notes the
portion of the principal paid by the Trustee, and then, along with an
appropriate instrument of assignment in form satisfactory to the Insurance
Trustee, to the Insurance Trustee, which will then pay the unpaid portion of
principal.
(d) In the event that the Trustee has notice that any payment of
principal of or interest on a Series D Note which has become Due for Payment (as
defined in the Policy) and which is made to a Holder by or on behalf of the
Company has been deemed a preferential transfer and theretofore recovered from
its Holder pursuant to the United States Bankruptcy Code by a trustee in
bankruptcy in accordance with a final, nonappealable order of a court having
competent jurisdiction, the Trustee shall, at the time the Insurer is notified
pursuant to (a) above, notify all Holders of the Series D Notes that in the
event that any Holder's payment is so recovered, such Holder will be entitled to
payment from the Insurer to the extent of such recovery if sufficient funds are
not otherwise available, and the Trustee shall furnish to the Insurer its
records evidencing the payments of principal of and interest on the Series D
Notes which have been made by the Trustee and subsequently recovered from
Holders and the dates on which such payments were made.
(e) In addition to those rights granted the Insurer under the
Indenture, the Insurer shall, to the extent it makes payment of principal of or
interest on Series D Notes, become subrogated to the rights of the recipients of
such payments in accordance with the terms of the Policy, and to evidence such
subrogation (i) in the case of subrogation as to claims for past due interest,
the Trustee shall note the Insurer's rights as subrogee on the registration
books of the Company maintained by the Trustee upon receipt from the Insurer of
proof of the payment of interest thereon to the Holders of the Series D Notes,
and (ii) in the case of subrogation as to claims for past due principal, the
Trustee shall note the Insurer's rights as subrogee on the registration books of
the Company maintained by the Trustee upon surrender of the Series D Notes by
the Holders thereof together with proof of the payment of principal thereof.
SECTION 204. Application of Term "Outstanding" to Series D Notes. In
the event that the principal and/or interest due on the Series D Notes shall be
paid by the Insurer pursuant to the Policy, the Series D Notes shall remain
Outstanding for all purposes of the Indenture, not be considered defeased or
otherwise satisfied and not be considered paid by the Company, and the
assignment and pledge of the Indenture and all covenants, agreements and other
obligations of the Company to the Holders of the Series D Notes shall continue
to exist and shall run to the benefit of the Insurer, and the Insurer shall be
subrogated to the rights of such Holders to the extent of each such payment.
SECTION 205. Insurer as Third Party Beneficiary. To the extent that the
Indenture confers upon or gives or grants to the Insurer any right, remedy or
claim under or by reason of the Indenture, the Insurer is hereby explicitly
recognized as being a third-party beneficiary hereunder and may enforce any such
right, remedy or claim conferred, given or granted hereunder.
SECTION 206. Concerning the Special Insurance Provisions. The
provisions of this Article 2 shall apply notwithstanding anything in the
Indenture to the contrary, but only so long as the Policy shall be in full force
and effect and the Insurer is not in default thereunder.
ARTICLE 3
Miscellaneous Provisions
SECTION 301. Recitals by Company. The recitals in this Fourth
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 D Notes and of this Fourth Supplemental
Indenture as fully and with like effect as if set forth herein in full.
SECTION 302. Ratification and Incorporation of Original Indenture. As
heretofore supplemented and as supplemented hereby, the Original Indenture is in
all respects ratified and confirmed, and the Original Indenture, as heretofore
supplemented and as supplemented by this Fourth Supplemental Indenture shall be
read, taken and construed as one and the same instrument.
SECTION 303. Executed in Counterparts. This Fourth 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.
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:
--------------------- ----------------------------------
Susan D. Ritenour Warren E. Tate
Assistant Secretary Vice President, Secretary and Treasurer
ATTEST: THE CHASE MANHATTAN BANK, as Trustee
By: By:
------------------------- ---------------------------------------
Virginia Dominguez R. Lorenzen
Trust Officer Assistant Vice President
EXHIBIT A
FORM OF SERIES D NOTE
NO. __ CUSIP NO. 402479BM0
GULF POWER COMPANY
SERIES D 6.10% SENIOR NOTE
DUE SEPTEMBER 30, 2016
Principal Amount: $_____________
Regular Record Date: 15th calendar day prior to the applicable Interest
Payment Date
Original Issue Date: October 18, 2001
Stated Maturity: September 30, 2016
Interest Payment Dates: January 1, April 1, July 1 and October 1
Interest Rate: 6.10% per annum
Authorized Denominations: $1,000 or any integral multiple thereof
Initial Redemption Date: October 1, 2004
Gulf Power Company, a Maine corporation (the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
_______________________________________________, or registered assigns, the
principal sum of _________ DOLLARS ($__________) 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 January 1, 2002, 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 (and without any interest or other payment in respect of any
such delay), then payment of the interest payable on such date will be made on
the next succeeding day that is a Business Day, 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 due at the Stated Maturity or
earlier redemption of the Series D Notes shall be made upon surrender of the
Series D Notes at the Corporate Trust Office of the Trustee. The principal of
and interest on the Series D Notes shall be paid 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.
Financial Guaranty Insurance Policy No. 18786BE (the "Policy") with
respect to payments due for principal of and interest on this Note has been
issued by Ambac Assurance Corporation ("Ambac Assurance"). The Policy has been
delivered to The Bank of New York, New York, New York, as the Insurance Trustee
under said Policy and will be held by such Insurance Trustee or any successor
insurance trustee. The Policy is on file and available for inspection at the
principal office of the Insurance Trustee and a copy thereof may be secured from
Ambac Assurance or the Insurance Trustee. All payments required to be made under
the Policy shall be made in accordance with the provisions thereof. The owner of
this Note acknowledges and consents to the subrogation rights of Ambac Assurance
as more fully set forth in the Policy.
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
GULF POWER COMPANY
By:
---------------------------------------
Vice President
Attest:
___________________________
Assistant Secretary
{Seal of GULF POWER COMPANY appears here}
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------------------
Authorized Officer
(Reverse Side of Note)
This Note is one of a duly authorized issue of Senior Notes of the
Company (the "Notes"), issued and issuable in one or more series under a Senior
Note Indenture, dated as of January 1, 1998, 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 D 6.10%
Senior Notes due September 30, 2016 (the "Series D Notes") which is unlimited in
aggregate principal amount. 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 October 1, 2004 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 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 $1,000 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.
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
JT TEN- as joint tenants Minors Act
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.
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _______________________________
Authorized Officer
EX-12
5
ex12_1.txt
RATIO OF EARNINGS
Exhibit 12.1
Computation of ratio of earnings to fixed charges for the
the five years ended December 31, 2001
and the twelve months ended June 2001
Twelve
Months
Ended
Year ended December 31, June
-------------------------------------------------------------------------
1996 1997 1998 1999 2000 2001
---- ---- ---- ---- ---- ----
-----------------------Thousands of Dollars---------------------------------------
Income Before Interest and Income Taxes $ 131,856 $ 124,428 $ 120,946 $ 119,576 $ 116,893 $ 126,510
AFUDC - Debt funds 58 5 0 0 440 974
Earnings as defined $ 131,914 $ 124,433 $ 120,946 $ 119,576 $ 117,333 $ 127,484
========== ========== ========= ========= ========== =========
FIXED CHARGES AS DEFINED IN ITEM 503 OF REGULATION S-K:
Interest on long-term debt $ 24,691 $ 21,699 $ 19,718 $ 21,375 $ 22,622 $ 22,286
Interest on interim obligations 2,071 891 1,190 2,371 2,804 1,728
Amort of debt disc, premium and expense, net 2,087 2,281 2,100 1,989 2,047 1,997
Other interest charges 1,882 4,885 8,582 7,326 7,253 7,381
Fixed charges as defined $ 30,731 $ 29,756 $ 31,590 $ 33,061 $ 34,726 $ 33,392
========== ========= ========= ========== =========
RATIO OF EARNINGS TO FIXED CHARGES 4.29 4.18 3.83 3.62 3.38 3.82
===== ===== ===== ===== ===== ====
EX-23
6
ex23_4.txt
CONSENT
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Ambac Assurance Corporation:
We consent to the incorporation by reference in the registration statements
(Nos. 333-59942, 333-59942-01 and 333-59942-02) of Gulf Power Company (the
"Registrant"), and in the Prospectus Supplement of the Registrant (the
"Prospectus Supplement"), via the Form 8-K of the Registrant dated October 5,
2001, of our report dated January 22, 2001 on the consolidated financial
statements of Ambac Assurance Corporation and subsidiaries as of December 31,
2000 and 1999, and for each of the years in the three-year period ended December
31, 2000, which report appears in the Annual Report on Form 10-K of Ambac
Financial Group, Inc. which was filed with the Securities and Exchange
Commission on March 28, 2001 and to the reference to our firm under the heading
"Experts" in the Prospectus Supplement.
New York, New York
October 18, 2001