Attached files
file | filename |
---|---|
8-K - GULF POWER CO | gulf8k2010a.htm |
EX-5.2 - GULF POWER CO | x5-2.htm |
EX-4.2 - GULF POWER CO | x4-2.htm |
EX-12.1 - GULF POWER CO | x12-1.htm |
Exhibit
1.3
$175,000,000
Series
2010A 4.75% Senior Notes
due April
15, 2020
GULF
POWER COMPANY
UNDERWRITING
AGREEMENT
April 6,
2010
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
As Representatives of the Several
Underwriters named on Schedule I hereto
Ladies
and Gentlemen:
Gulf
Power Company, a Florida corporation (the “Company”), confirms its agreement
(the “Agreement”) with you and the other Underwriters named in Schedule I hereto
(collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for whom you are
acting as representatives (in such capacity you shall hereinafter be referred to
as the “Representatives”), with respect to the sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of $175,000,000
aggregate principal amount of the Series 2010A 4.75% Senior Notes due April 15,
2020 (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 pursuant to this Agreement. The Senior Notes will be
issued pursuant to a Senior Note Indenture, dated as of January 1, 1998 (the
“Base Indenture”), between the Company and The Bank of New York Mellon (as
successor to JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan
Bank)), as trustee (the “Trustee”), as heretofore supplemented and amended and
as to be further supplemented and amended by a sixteenth supplemental indenture,
dated as of April 13, 2010, 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 (File No. 333-149664) 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 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 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 or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering 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
used with respect to the Senior Notes, including the information deemed a part
thereof pursuant to Rule 430B(f)(1) under the 1933 Act on the date of such
registration statement’s effectiveness for purposes of Section 11 of the 1933
Act, as such Section applies to the Company and the Underwriters for the Senior
Notes pursuant to Rule 430B(f)(2) under the 1933 Act (the “Effective Date”),
including the exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the Effective Date, being hereinafter
called the “Registration Statement”; the base prospectus relating to the Senior
Notes and certain other securities of the Company, in the form in which it has
most recently been filed with the Commission on or prior to the date of this
Agreement relating to the Senior Notes, being hereinafter called the “Basic
Prospectus”; the Basic Prospectus as amended and supplemented by a preliminary
prospectus supplement dated April 6, 2010 relating to the Senior Notes which has
been filed with the Commission pursuant to Rule 424(b) under the 1933 Act, as it
may be further amended and supplemented immediately prior to the Applicable Time
(as hereinafter defined) is hereinafter called the “Pricing Prospectus”; the
Basic Prospectus as amended or supplemented in final form, including 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 4(e) hereof is hereinafter called the “Final
Supplemented Prospectus”; any reference herein to any Preliminary Prospectus,
the Basic Prospectus, the Pricing Prospectus or the Final Supplemented
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, Basic Prospectus, Pricing Prospectus or
Final Supplemented Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus, the Basic Prospectus, the
Pricing Prospectus or the Final Supplemented Prospectus shall be deemed to refer
to and include any documents filed after the date of
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such
Preliminary Prospectus, Basic Prospectus, Pricing Prospectus or Final
Supplemented 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, Basic Prospectus, Pricing Prospectus or Final
Supplemented 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.
For purposes of this Agreement, the
“Applicable Time” is 11:15 a.m. (New York Time) on the date of this Agreement;
the documents listed in Schedule III, taken together and attached hereto, are
collectively referred to as the “Pricing Disclosure Package.”
(b) The
documents incorporated by reference in the Registration Statement or the Pricing
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 Pricing Prospectus and any Permitted Free Writing
Prospectus (as defined in Section 3(a) hereof), 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 Final
Supplemented 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 Final
Supplemented 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 any
Underwriter through the Representatives expressly for use in the Pricing
Prospectus, any Permitted Free Writing Prospectus and the Final Supplemented
Prospectus; or (B) any information set forth in the Pricing Prospectus or the
Final Supplemented Prospectus under the caption “Description of the Series 2010A
Senior Notes ─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
(c) The
Registration Statement and the Final Supplemented Prospectus comply, and any
further amendments or supplements thereto, when any such amendments become
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
3
Act, the
1939 Act (as hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and the Registration Statement, the Pricing Disclosure
Package and the Final Supplemented Prospectus do not and will not, (i) as of the
Effective Date as to the Registration Statement and any amendment thereto, (ii)
as of the Applicable Time as to the Pricing Disclosure Package and (iii) as of
the date of the Final Supplemented Prospectus as to the Final Supplemented
Prospectus or as of the date when any supplement is filed as to the Final
Supplemented Prospectus as further supplemented or as of the Closing Date as to
the Final Supplemented Prospectus or the Final Supplemented Prospectus as it may
be further supplemented as provided above, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the case of the Registration Statement and
any amendment thereto, and, in the light of the circumstances under which they
were made, not misleading in the case of the Pricing Disclosure Package and the
Final Supplemented Prospectus as further supplemented; 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) under the Trust Indenture Act of 1939, as amended (the “1939 Act”),
(B) any statements or omissions made in a Permitted Free Writing Prospectus, the
Registration Statement, the Pricing Prospectus or the Final Supplemented
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through the Representatives expressly
for use therein; or (C) any information set forth in the Pricing Prospectus or
the Final Supplemented Prospectus under the caption “Description of the Series
2010A Senior Notes ─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
(d) Each
Permitted Free Writing Prospectus listed on Schedule III hereto does not include
anything that conflicts with the information contained in the Registration
Statement, the Pricing Prospectus or the Final Supplemented Prospectus and each
such Permitted Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, did not 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 warranty or representation to the Underwriters with respect to
any statement or omissions made in a Permitted Free Writing Prospectus in
reliance upon and in conformity with information furnished in writing to the
Company by any Underwriter through the Representatives expressly for use
therein.
(e) With
respect to the Registration Statement, the conditions for use of Form S-3, as
set forth in the General Instructions thereof, have been satisfied.
4
(f) At the
determination date for purposes of the Senior Notes within the meaning of Rule
164(h) under the 1933 Act, the Company was not an “ineligible issuer” as defined
in Rule 405 under the 1933 Act.
(g) Since the
respective dates as of which information is given in the Registration Statement
and the Pricing Prospectus, except as otherwise stated therein, there has been
no material adverse change in the business, properties or financial condition of
the Company, whether or not arising in the ordinary course of
business.
(h) The
Company is a corporation duly organized and existing under the laws of the State
of Florida, is duly qualified to carry on its business as a foreign corporation
under the laws of the States of 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.
(i) This
Agreement has been duly authorized, executed and delivered by the
Company.
(j) The
Indenture has been duly authorized by the Company and, on the Closing Date (as
hereinafter defined), 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 Pricing Disclosure Package and the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture will have
been duly qualified under the 1939 Act.
(k) 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 this Agreement,
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 Pricing Disclosure Package and the Final Supplemented
Prospectus.
5
(l) 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.
(m) 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 Federal Power
Act; (C) the qualification of the Indenture under the 1939 Act; (D) the approval
of the Florida Public Service Commission (the “Florida Commission”); and (E)
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or “blue sky” laws.
(n) The
financial statements incorporated by reference in the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, together with the
related schedules and notes, present fairly, in all material respects, the
financial position, results of operations and cash flows of the Company as of
and for the dates indicated; said financial statements have been prepared in
conformity with accounting principles generally accepted in the United States
(“GAAP”) applied on a consistent basis (except that the unaudited financial
statements incorporated by reference in the Registration Statement, the Pricing
Prospectus and the Final Supplemented Prospectus may be subject to normal
year-end adjustments) throughout the periods involved and necessarily include
amounts that are based on the best estimates and judgments of
management. The selected financial data and the summary financial
information included in the Pricing Prospectus and the Final Supplemented
Prospectus present fairly the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements incorporated
by reference in the Registration Statement.
6
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, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, the principal amount of the Senior
Notes set forth in Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of the Senior Notes that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 11 hereof), at a price equal to 99.334% of the principal amount
thereof.
(b) Payment
of the purchase price and delivery of certificates for the Senior Notes shall be
made at the offices of Southern Company Services, Inc., 30 Ivan Allen Jr. Blvd,
NW, Atlanta, Georgia 30308, at 10:00 a.m., New York time, on April 13, 2010
(unless postponed in accordance with the provisions of Section 11 hereof) or
such other time, place or date as shall be agreed upon by the Representatives
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 Citigroup Global Markets Inc. on behalf of all of the
Underwriters. It is understood that each Underwriter has authorized
Citigroup Global Markets Inc., for each Underwriter’s account, to accept
delivery of, receipt for, and make payment of, the principal amount of the
Senior Notes which each Underwriter has agreed to purchase.
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 Representatives not later than 12:00 Noon, New York time, on the last
business day prior to the Closing Date.
SECTION
3. FREE WRITING
PROSPECTUSES.
(a) The
Company represents and agrees that, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the
Senior Notes that would constitute a “free writing prospectus” as defined in
Rule 405 under the 1933 Act, other than a Permitted Free Writing Prospectus;
each Underwriter, severally and not jointly, represents and agrees that, without
the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Senior Notes that would constitute a
“free writing prospectus” as defined in Rule 405 under the 1933 Act, other than
a Permitted Free Writing Prospectus or a free writing prospectus that is not
required to be filed by the Company pursuant to Rule 433 or one or more free
writing prospectuses through customary Bloomberg distribution that do
7
not
contain substantive changes from or additions to the information contained in
Schedule II hereto; any such free writing prospectus (which shall include the
pricing term sheet discussed in Section 3(b) hereof), the use of which has been
consented to by the Company and the Representatives, is listed on Schedule III
and herein called a “Permitted Free Writing Prospectus.”
(b) The
Company agrees to prepare a pricing term sheet, substantially in the form of
Schedule II hereto and approved by the Representatives, and to file such pricing
term sheet pursuant to Rule 433(d) under the 1933 Act within the time period
prescribed by such Rule.
(c) The
Company and the Underwriters have complied and will comply with the requirements
of Rule 433 under the 1933 Act applicable to any free writing prospectus,
including timely Commission filing where required and legending.
(d) The
Company agrees that if at any time following issuance of a Permitted Free
Writing Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Final Supplemented
Prospectus or include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of
the circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter a free writing
prospectus or other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any
statements or omissions in a Permitted Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
any Underwriter through the Representatives, expressly for use
therein.
(e) The
Company agrees that if there occurs an event or development as a result of which
the Pricing Disclosure Package would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing, not
misleading, the Company will notify the Representatives so that any use of the
Pricing Disclosure Package may cease until it is amended or
supplemented.
SECTION
4. 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
8
advised
thereof, it will advise the Representatives orally of the issuance of any stop
order under the 1933 Act with respect to the Registration Statement, or the
institution of any proceedings for that purpose or pursuant to Section 8A of the
1933 Act against the Company or related to the offering, 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 Representatives sufficient
conformed copies of the Registration Statement, the Basic Prospectus, the
Pricing 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 Basic Prospectus, the
Pricing 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 written or electronic 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 (or in lieu thereof, the notice
referred to in Rule 173(a) under the 1933 Act) 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 Representatives, 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 (or in lieu thereof, the notice referred to in Rule 173(a)
under the 1933 Act) 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 Final Supplemented 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 (or in lieu thereof, the notice referred to in
Rule 173(a) under the 1933 Act) 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
9
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 Representatives and
Dewey & LeBoeuf 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 Representatives
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) 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, the Company will file the Final
Supplemented Prospectus, in a form approved by the Representatives, such
approval not to be unreasonably withheld, with the Commission and will advise
the Representatives of such filing and will confirm such advice in
writing. Furthermore, the Company will make any other required
filings pursuant to Rule 433(d)(1) of the 1933 Act within the time required by
such Rule.
(f) During a
period of 15 days from the date of this Agreement, the Company will not, without
the Representatives’ 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). The Representatives agree that commercial paper or other
debt securities with scheduled maturities of less than one year are not subject
to this Section 4(f).
SECTION
5. 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
10
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 4(c) hereof, including filing
fees and the reasonable fees and disbursements of Dewey & LeBoeuf LLP,
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 Pricing Prospectus, any Permitted Free Writing 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 Financial Industry Regulatory Authority, 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, and
(xi) the cost of qualifying the Senior Notes with The Depository Trust
Company.
Except as
otherwise provided in Section 10 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 & LeBoeuf
LLP.
SECTION
6. 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 or pursuant to
Section 8A of the 1933 Act against the Company or related to the offering shall
be pending before, or to the knowledge of the Company threatened by, the
Commission on such date. If filing of the Pricing Prospectus or the
Final Supplemented Prospectus, or any supplement thereto, is required pursuant
to Rule 424, the Pricing Prospectus and the Final Supplemented Prospectus, and
any such supplement, as applicable, shall have been filed in the manner and
within the time period required by Rule 424. The pricing term sheet
contemplated by Section 3(b) hereto, and any other material required to be filed
by the Company pursuant to Rule 433(d) under the 1933 Act, shall have been filed
by the Company with the Commission within the applicable time periods prescribed
for such filings by Rule 433.
(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 Representatives, are deemed acceptable to the Underwriters and
the Company and all
11
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 Representatives 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 IV.
(2) The
opinion, dated the Closing Date, of Troutman Sanders LLP, counsel for the
Company, substantially in the form attached hereto as Schedule V.
(3) The
opinion, dated the Closing Date, of Emmet, Marvin & Martin, LLP, counsel to
the Trustee, substantially in the form attached hereto as Schedule
VI.
(4) The
opinion, dated the Closing Date, of Dewey & LeBoeuf LLP, counsel for the
Underwriters, substantially in the form attached hereto as Schedule
VII.
(d) 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 Representatives 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 or pursuant to Section 8A of the 1933 Act against the Company
or related to the offering have been initiated or, to the knowledge of the
Company, threatened by the Commission.
(e) The
Representatives shall have received on the date hereof and shall receive on the
Closing Date from Deloitte & Touche LLP, a letter or letters addressed to
the Representatives (which may refer to letters previously delivered to the
Representatives) dated the respective dates of delivery thereof to the effect
that: (A) they are an independent registered public accounting firm
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 Registration Statement and
the Pricing Prospectus or the Registration Statement, the
12
Pricing
Prospectus and the Final Supplemented Prospectus, as applicable, 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
three 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
standards of the Public Company Accounting Oversight Board (United States) for a
review of interim financial statement information as described in Statement on
Auditing Standards No. 100, “Interim Financial Information”, on the unaudited
financial statements, if any, of the Company incorporated by reference in the
Registration Statement and the Pricing Prospectus or the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, as applicable, and
on the latest available unaudited financial statements of the Company, if any,
for any calendar quarter subsequent to the date of those incorporated by
reference in the Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable; and (iii) making inquiries of certain officials of
the Company who have responsibility for financial and accounting matters
regarding such unaudited financial statements or any specified unaudited amounts
derived therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly that Deloitte &
Touche LLP make no representations as to the sufficiency of such procedures for
the Underwriters’ purposes), nothing came to their attention that caused them to
believe that: (1) any material modifications should be made to the
unaudited condensed financial statements, if any, incorporated by reference in
the Registration Statement and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, for them to be in conformity with GAAP; (2) such unaudited condensed
financial statements, if any, 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
amounts for Operating Revenues, Earnings Before Income Taxes and Net Income
After Dividends on Preferred and Preference Stock and the unaudited Ratio of
Earnings to Fixed Charges set forth in the Registration Statement and the
Pricing Prospectus or the Registration Statement, the Pricing Prospectus and the
Final Supplemented Prospectus, as applicable, do not agree with the amounts set
forth in or derived from the audited financial statements for the same period
included or incorporated by reference in the Registration Statement; (4) as of a
specified date not more than three 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 balance sheet incorporated by reference in the Registration Statement
and the Pricing Prospectus or the Registration Statement, the Pricing Prospectus
and the Final Supplemented Prospectus, as applicable, except in each case for
13
changes
or decreases which (i) the Registration Statement and the Pricing Prospectus or
the Registration Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as applicable, disclose 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
regularly scheduled payments of capitalized lease obligations, (v) are
occasioned by the purchase or redemption of bonds or stock to satisfy mandatory
or optional redemption provisions relating thereto, (vi) are occasioned by the
reclassification of current maturities of long-term debt, or (vii) are disclosed
in such letter; and (5) the unaudited amounts for Operating Revenues, Earnings
Before Income Taxes and Net Income After Dividends on Preferred and Preference
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
Registration Statement and the Pricing Prospectus or the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable.
(f) 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 Representatives and Dewey &
LeBoeuf LLP, counsel for the Underwriters.
(g) 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 & LeBoeuf 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
Representatives, shall materially impair the marketability of the Senior
Notes.
(h) The
Company shall have performed its obligations when and as provided under this
Agreement.
If any
condition specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the
Representatives 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 5, 8 and 10(b) hereof.
14
SECTION
7. 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
6(a) and in Section 6(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 Representatives. Any such
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 5, 8 and 10(b) hereof.
SECTION
8. 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, the 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 Basic Prospectus, the Pricing Prospectus, any Permitted Free
Writing 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 Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing Prospectus, the Final Supplemented Prospectus as so
amended or supplemented, or in any free writing prospectus used by the Company
other than a Permitted Free Writing Prospectus, 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, Basic Prospectus, Pricing Prospectus, Permitted Free
Writing Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter through the Representatives for use therein. 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 8, 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
8. 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
15
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 8(a) hereof, but only with respect to alleged
untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Basic Prospectus, the Pricing Prospectus, any
Permitted Free Writing 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 any Underwriter through the
Representatives for use therein.
SECTION
9. 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
10. TERMINATION OF
AGREEMENT.
(a) The
Representatives 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 or there shall have been
a material disruption in settlement in securities generally, (ii) minimum or
maximum ranges
16
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,
crisis or emergency (including, without limitation, acts of terrorism) affecting
the United States, in any such case provided for in clauses (i) through (iv)
with the result that, in the reasonable judgment of the Representatives, the
offering, sale or delivery of the Senior Notes on the terms and in the manner
contemplated by this Agreement and the Final Supplemented Prospectus shall have
been materially impaired.
(b) If
this Agreement shall be terminated by the Representatives 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 & LeBoeuf
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 5 and 8 hereof.
SECTION
11. DEFAULT BY AN
UNDERWRITER. If an Underwriter shall fail on the Closing Date
to purchase the Senior Notes that it is obligated to purchase under this
Agreement (the “Defaulted Securities”), the Representatives 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 Representatives
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.
17
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 Representatives 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, the Pricing
Prospectus or the Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION
12. NOTICES. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representatives at Citigroup Global Markets Inc., 388 Greenwich Street, New
York, New York 10013, Attention: General Counsel, Fax: 212-816-7912, UBS
Securities LLC, 677 Washington Boulevard Stamford, Connecticut 06901, Attention:
Fixed Income Syndicate, Fax: 203-719-0495, and Wells Fargo Securities, 301 South
College Street, Charlotte, North Carolina 28288, Attention: Transaction
Management Department, Fax: 704-383-9165; notices to the Company shall be mailed
to One Energy Place, Pensacola, Florida 32520-0786, Attention:
Corporate Secretary, with a copy to Southern Company Services, Inc., 30 Ivan
Allen Jr. Boulevard, N.W., Atlanta, Georgia 30308, Attention: Earl C.
Long.
SECTION
13. 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 8 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 any of the
Underwriters shall be deemed to be a successor by reason merely of such
purchase. The Company acknowledges and agrees that in connection with
all aspects of each transaction contemplated by this Agreement, the Company and
the Underwriters have arms-length business relationships that create no
fiduciary duty on the part of any party and each expressly disclaims any
fiduciary or financial advisory relationship.
SECTION
14. 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
15. 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.
18
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 among the Underwriters
and the Company in accordance with its terms.
Very
truly yours,
GULF
POWER COMPANY
By: /s/Philip
C.
Raymond
Name: Philip
C. Raymond
|
Title:
|
Vice
President and Chief Financial
Officer
|
CONFIRMED
AND ACCEPTED,
as of the
date first above written
CITIGROUP
GLOBAL MARKETS INC.
By: /s/Brian
D. Bednarski
Name:
Brian D. Bednarski
Title:
Managing Director
UBS
SECURITIES LLC
By: /s/Christopher
Forshner
Name:
Christopher Forshner
Title:
Managing Director
UBS Securities LLC
By:
/s/Mark Spadaccini
Name:
Mark Spadaccini
Title:
Associate Director
Debt Capital Markets
UBS Investment Bank
WELLS
FARGO SECURITIES, LLC
By:
/s/Carolyn C.
Hurley
Name:
Carolyn C. Hurley
Title:
Director
SCHEDULE
I
Name of Underwriters
|
Principal Amount of Series 2010A Senior
Notes
|
Citigroup
Global Markets Inc.
|
$54,250,000
|
UBS
Securities LLC
|
$54,250,000
|
Wells
Fargo Securities LLC
|
$54,250,000
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
LLC
|
$12,250,000
|
TOTAL:
|
$175,000,000
|
NY3
3051711.10
SCHEDULE
II
PRICING
TERM SHEET
|
|
(To
Preliminary Prospectus Supplement dated April 6,
2010)
|
Issuer:
|
Gulf
Power Company
|
Security:
|
Series
2010A 4.75% Senior Notes due April 15, 2020
|
Expected
Ratings:*
|
A2/A/A
(Moody’s/Standard & Poor’s/Fitch)
|
Principal
Amount:
|
$175,000,000
|
Initial
Public Offering Price:
|
99.984%
|
Maturity
Date:
|
April
15, 2020
|
Treasury
Benchmark:
|
3.625%
due February 15, 2020
|
US
Treasury Yield:
|
3.952%
|
Spread
to Treasury:
|
80
basis points
|
Re-Offer
Yield:
|
4.752%
|
Make-Whole
Call:
|
T+15
basis points
|
Coupon:
|
4.75%
|
Interest
Payment Dates:
|
April
15 and October 15 of each year beginning October 15,
2010
|
Format:
|
SEC
Registered
|
Denominations:
|
$1,000
and any integral multiple thereof
|
CUSIP:
|
402479
CA5
|
Trade
Date:
|
April
6, 2010
|
Expected
Settlement Date:
|
April
13, 2010 (T+5)
|
Joint
Book-Running Managers:
|
Citigroup
Global Markets Inc., UBS Securities LLC, Wells Fargo Securities,
LLC
|
Co-Manager:
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
LLC
|
* Note: A
securities rating is not a recommendation to buy, sell or hold securities
and may be subject to revision or withdrawal at any time.
|
|
The
issuer has filed a registration statement (including a prospectus) with
the SEC for the offering to which this communication
relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with
the SEC for more complete information about the issuer and this
offering. You may get these documents for free by visiting
EDGAR on the SEC website at www.sec.gov. Alternatively, the
issuer, the underwriter or any dealer participating in the offering will
arrange to send you the prospectus if you request it by calling Gulf Power
Company collect at 1-850-444-6111 or Citigroup Global Markets Inc. toll
free at 1-877-858-5407, UBS Securities LLC toll free at 1-877-827-6444 ext
561-3884 or Wells Fargo Securities, LLC toll free at
1-800-326-5897.
|
SCHEDULE
III
PRICING
DISCLOSURE PACKAGE
1) Prospectus
dated March 27, 2008
|
2)
|
Preliminary
Prospectus Supplement dated April 6, 2010 (which shall be deemed to
include documents incorporated by reference
therein)
|
3) Permitted
Free Writing Prospectuses
a) Pricing
Term Sheet attached as Schedule II hereto
Schedule
IV
[Letterhead
of BEGGS & LANE]
April 13, 2010
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
As
Representatives of the Underwriters
GULF
POWER COMPANY
$175,000,000
Series
2010A 4.75% Senior Notes
due April
15, 2020
Ladies
and Gentlemen:
We have
acted as general counsel to Gulf Power Company (the “Company”) in connection
with (i) the Company’s issuance and sale of
$175,000,000 aggregate principal amount of its
Series 2010A 4.75% Senior Notes due April 15, 2020 (the “Notes”) pursuant to a
Senior Note Indenture dated as of January 1, 1998, between the Company and The
Bank of New York Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly
known as The Chase Manhattan Bank)), as trustee (the “Trustee”), as heretofore
supplemented and amended and as further supplemented by the Sixteenth
Supplemental Indenture dated as of April 13,
2010 (collectively, the “Indenture”); and (ii) the purchase by the Underwriters
(as defined herein) of the Notes pursuant to the terms of an Underwriting
Agreement (the “Underwriting Agreement”) dated April 6, 2010 among the Company
and you and the other Underwriters listed on Schedule I of the Underwriting
Agreement (the “Underwriters”) for whom you are acting as representatives (in
such capacity you shall hereinafter be referred to as the “Representatives”).
This opinion is being delivered to you pursuant to Section 6(c)(1) of the
Underwriting Agreement.
All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Underwriting Agreement.
In
rendering the opinions expressed below, we have examined the registration
statement on Form S-3 (File No. 333-149664) pertaining to the Notes and certain
other securities filed by the Company under the Securities Act of 1933, as
amended (the “Act”), as it became effective under the Act (the “Registration
Statement”); the Company’s prospectus dated March 27, 2008 (the “Basic
Prospectus”) as supplemented by a preliminary prospectus supplement dated April
6, 2010 (the “Pricing Prospectus”), filed by the Company pursuant to Rule 424(b)
of the rules and regulations of the Securities and Exchange Commission (the
“Commission”) under the Act, which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2009 and the Current Report on Form 8-K of the Company dated
January 25, 2010 (the “Pricing Exchange Act Documents”), and as supplemented by
a prospectus supplement dated April 6, 2010 (together with the Basic Prospectus,
the “Final Supplemented Prospectus”), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, which,
pursuant to Form S-3, incorporates by reference the Pricing Exchange Act
Documents and the Current Report on Form 8-K of the Company dated April 6, 2010
(the “Exchange Act Documents”), each as filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”). We have also examined the
free writing prospectus prepared by the Company and filed with the Commission on
April 6, 2010 pursuant to Rule 433 of the Act (the “Permitted Free Writing
Prospectus”). The documents listed in Schedule III to the
Underwriting Agreement, taken together, are collectively referred to as the
“Pricing Disclosure Package.”
In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificate 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 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 & LeBoeuf 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 Florida, is duly qualified to carry
on its business as a foreign corporation under the laws of the States of Georgia
and Mississippi and has due corporate authority to carry on the public utility
business in which it
2
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
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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package, 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
3
the
course of the preparation by the Company of the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company, with
representatives of Deloitte & Touche LLP and with your
counsel. Based upon our examination of the Registration Statement,
the Pricing Disclosure Package, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Pricing Disclosure Package, 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, on the Effective Date, and the Final
Supplemented Prospectus, as of April 6, 2010, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that each Exchange Act
Document, as of its date 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 (or
omitted from) the Registration Statement, the Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents, and (ii) we confirm
to you that nothing came to our attention which gives us reason to believe that
the Registration Statement, on the 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, that the Pricing Disclosure Package, as of the Applicable Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in (or omitted from) the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and with respect to information set forth in the Pricing Prospectus
and the Final Supplemented Prospectus under the caption “Description of the
Series 2010A Senior Notes─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
We are
members of the Florida Bar and we do not express any opinion herein concerning
any law other than the law of the States of Florida and Mississippi and, to the
extent set forth herein, the laws of the States of Georgia and New York and the
federal law of the United States.
4
This
opinion letter is rendered by us only to you and is solely for your benefit in
your capacity as Underwriters in connection with the above-described
transaction. This opinion letter is limited to the date hereof. This
opinion letter may not be used, quoted or 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 & LeBoeuf LLP
may rely on this opinion letter 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
V
[Letterhead
of TROUTMAN SANDERS LLP]
April 13,
2010
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
As
Representatives of the Underwriters
GULF
POWER COMPANY
$175,000,000
Series
2010A 4.75% Senior Notes
due April
15, 2020
Ladies
and Gentlemen:
We have
acted as counsel to Gulf Power Company (the “Company”) in connection with (i)
the Company’s issuance of $175,000,000 aggregate principal amount of its Series
2010A 4.75% Senior Notes due April 15, 2020 (the “Notes”) pursuant to a Senior
Note Indenture dated as of January 1, 1998, between the Company and The Bank of
New York Mellon (as successor to JPMorgan Chase Bank, N.A. (formerly known as
The Chase Manhattan Bank)), as trustee (the “Trustee”), as heretofore
supplemented and as further supplemented by the Sixteenth Supplemental Indenture
dated as of April 13, 2010 (collectively, the “Indenture”); and (ii) the
purchase by the Underwriters (as defined herein) of the Notes pursuant to the
terms of an Underwriting Agreement dated April 6, 2010 (the “Underwriting
Agreement”), among the Company and you and the other Underwriters named in
Schedule I of the Underwriting Agreement (the “Underwriters”) for whom you are
acting as representatives (in such capacity you shall hereinafter be referred to
as the “Representatives”). This opinion is being delivered to you
pursuant to Section 6(c)(2) of the Underwriting Agreement.
All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Underwriting Agreement.
In
rendering the opinions expressed below, we have examined the registration
statement on Form S-3 (File No. 333-149664) pertaining to the Notes and certain
other securities filed by the Company under the Securities Act of 1933, as
amended (the “Act”), as it became effective under the Act (the “Registration
Statement”); the Company’s prospectus dated March 27, 2008 (the “Basic
Prospectus”) as supplemented by a preliminary prospectus supplement dated April
6, 2010 (the “Pricing Prospectus”), filed by the Company pursuant to Rule 424(b)
of the rules and regulations of the Securities and Exchange Commission (the
“Commission”) under the Act which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2009 and the Current Report on Form 8-K of the Company dated
January 25, 2010 (the “Pricing Exchange Act Documents”), and a prospectus
supplement dated April 6, 2010 (together with the Basic Prospectus, the “Final
Supplemented Prospectus”), filed by the Company pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, which, pursuant to Form
S-3, incorporates by reference the Pricing Exchange Act Documents and the
Current Report on Form 8-K of the Company dated April 6, 2010 (the “Exchange Act
Documents”), each as filed under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”); and the Indenture. We have also examined the
free writing prospectus prepared by the Company and filed with the Commission on
April 6, 2010 pursuant to Rule 433 of the Act (the “Permitted Free Writing
Prospectus”). The documents listed in Schedule III to the
Underwriting Agreement, taken together, are collectively referred to as the
“Pricing Disclosure Package.”
In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificate representing
the Notes, of which we have examined a specimen), and we have made such other
and further investigations as we deemed necessary to express the opinions
hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter
documents.
The
Indenture and the Underwriting Agreement are herein referred to collectively as
the “Agreements.”
Based
upon the foregoing, and subject to the qualifications and limitations stated
herein, we are of the opinion, relying as to matters of Florida and Mississippi
law upon the opinion dated the date hereof rendered to you by Beggs & Lane,
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 & LeBoeuf 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 Florida, is duly qualified to carry
on its business as a foreign corporation in the States of Georgia and
Mississippi, and has due corporate authority to carry on the public utility
business in which it is engaged, to
2
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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package, 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
3
the
course of the preparation by the Company of the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with other counsel for the Company, with
representatives of Deloitte & Touche LLP and with your
counsel. Based upon our examination of the Registration Statement,
the Pricing Disclosure Package, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Pricing Disclosure Package, 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, on the Effective Date and the Final
Supplemented Prospectus, as of April 6, 2010, complied as to form in all
material respects with the relevant requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that each Exchange Act
Document, as of its date 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 (or
omitted from) the Registration Statement, the Pricing Disclosure Package, the
Final Supplemented Prospectus or the Exchange Act Documents, and (ii) we confirm
to you that nothing came to our attention which gives us reason to believe that
the Registration Statement, on the 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, that the Pricing Disclosure Package, as of the Applicable Time,
included an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) contained, as of
its date, or contains, on the date hereof, any untrue statement therein of a
material fact or omitted, as of its date, or omits, on the date hereof, to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that in
each case we express no opinion or belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in (or omitted from) the Registration Statement, the Pricing
Disclosure Package, the Final Supplemented Prospectus or the Exchange Act
Documents and with respect to information set forth in the Pricing Prospectus
and the Final Supplemented Prospectus under the caption “Description of the
Series 2010A Senior Notes ─ Book-Entry Only Issuance ─ The Depository Trust
Company.”
The
attorneys in this firm that are rendering this opinion 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, the federal law of the United States and,
to the extent set forth herein, the laws of the States of Florida, Mississippi
and New York.
This
opinion letter is rendered by us only to you and is solely for your benefit in
your capacity as Underwriters in connection with the above-described
transaction. This opinion letter is limited to the date
hereof. This opinion letter may not be used, quoted or relied upon by
you for any other purpose, or relied upon by or furnished to
4
any other
person without our prior written consent, except that Beggs & Lane may rely
on this opinion letter 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 & LeBoeuf LLP may rely on this
opinion letter 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
5
Schedule
VI
[Letterhead
of Emmet, Marvin & Martin LLP]
April 13,
2010
Citigroup
Global Markets Inc.
388
Greenwich Street
New York,
New York 10013
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
As
Representatives of the Underwriters
Gulf
Power Company
500
Bayfront Parkway
Pensacola,
Florida 32520
Gulf Power
Company
Series 2010A 4.75% Senior
Notes due April 15, 2020
Ladies
and Gentlemen:
We have
acted as counsel for The Bank of New York Mellon (as successor to JPMorgan Chase
Bank, N.A. (formerly known as The Chase Manhattan Bank)) (“BNYM”), in connection
with the issuance by Gulf Power Company (the “Company”) of $175,000,000
aggregate principal amount of Series 2010A 4.75% Senior Notes due April 15,
2020 (the “Notes”). The Notes are being issued under
the Senior Note Indenture dated as of January 1, 1998 (the “Original Indenture”)
between the Company and BNYM, as trustee (in such capacity, the “Trustee”), as
heretofore supplemented and as further supplemented by the Sixteenth
Supplemental Indenture dated as of April 13, 2010 (the “Supplemental Indenture”
and, together with the Original Indenture, the “Indenture”), between the Company
and the Trustee.
For
purposes of this opinion, we have reviewed the Indenture and such other
documents, records and papers, and satisfied ourselves as to such other matters,
as we have deemed necessary or appropriate for this opinion. As to
questions of fact material to this opinion, we have relied on certificates of
BNYM and of public officials. In such review, 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
the originals of all documents submitted to us as copies or forms and the
authenticity of the originals of such latter documents. We have
assumed that BNYM has been duly incorporated and that the Indenture has been
duly authorized, executed and delivered by the Company and constitutes the valid
and binding agreement of, and is enforceable in accordance with its terms
against, the Company.
Based
upon the foregoing and subject to the qualifications below, we are of the
opinion that:
1) BNYM
is a banking corporation validly existing under the laws of the State of New
York with corporate power and authority to enter into and perform its
obligations under the Indenture.
2) The
Supplemental Indenture has been duly authorized, executed and delivered by BNYM
and constitutes a valid and binding agreement of BNYM enforceable against BNYM
in accordance with its terms, except as may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at law) and by an
implied covenant of reasonableness, good faith and fair dealing.
We are
members of the Bar of the State of New York and, for purposes of this opinion,
do not hold ourselves out as experts on the laws of any jurisdiction other than
the State of New York. The opinions expressed herein are limited to
matters governed by the laws of the State of New York.
This
opinion is solely for your benefit in connection with the issuance and sale by
the Company of the Notes and may not be relied upon by you for any other
purpose, or relied upon or furnished to any other person, without our prior
written consent.
Very
truly yours,
2
Schedule
VII
[Letterhead
of DEWEY & LEBOEUF LLP]
April 13,
2010
Citibank
Global Markets
388
Greenwich Street
New York,
New York 10013
UBS
Securities LLC
677
Washington Boulevard
Stamford,
Connecticut 06901
Wells
Fargo Securities, LLC
301 South
College Street
Charlotte,
North Carolina 28288
As
Representatives of the Underwriters
GULF
POWER COMPANY
Series
2010A 4.75% Senior Notes
due April
15, 2020
Ladies
and Gentlemen:
We have
represented the Underwriters (hereinafter defined) in connection with (i) the
issuance and sale by Gulf Power Company (the “Company”) of $175,000,000
aggregate principal amount of its Series 2010A 4.75% Senior Notes due April 15,
2020 (the “Notes”) pursuant to a Senior Note Indenture, dated as of January 1,
1998, between the Company and The Bank of New York Mellon (as successor to
JPMorgan Chase Bank, N.A. (formerly known as The Chase Manhattan Bank)), as
trustee (the “Trustee”), as heretofore supplemented and as further supplemented
by the Sixteenth Supplemental Indenture, dated as of April 13, 2010
(collectively, the “Indenture”); and (ii) the purchase by the Underwriters of
the Notes pursuant to the terms of an Underwriting Agreement dated April 6, 2010
(the “Underwriting Agreement”), among the Company and you and the other
Underwriters named in Schedule I of the Underwriting Agreement (the
“Underwriters”) for whom you are acting as representatives (in such capacity you
shall hereinafter be referred to as the “Representatives”). This
opinion is being delivered to you pursuant to Section 6(c)(4) of the
Underwriting Agreement.
All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Underwriting Agreement.
In
rendering the opinions expressed below, we have examined the Company’s
registration statement on Form S-3 (File No. 333-149664) pertaining to the Notes
and certain other securities filed by the Company under the Securities Act of
1933, as amended (the “Act”), as it became effective under the Act (the
“Registration Statement”); the Company’s prospectus dated March 27, 2008 (the
“Basic Prospectus”) as supplemented by a preliminary prospectus supplement dated
April 6, 2010 (the “Pricing Prospectus”), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the “Commission”) under the Act, which, pursuant to Form S-3, incorporates by
reference the Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 2009 and the Current Report on Form 8-K of the Company dated
January 25, 2010 (collectively, the “Pricing Exchange Act Documents”), and a
prospectus supplement dated April 6, 2010 (together with the Basic Prospectus,
the “Final Supplemented Prospectus”), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, which,
pursuant to Form S-3, incorporates by reference the Pricing Exchange Act
Documents and the Current Report on Form 8-K of the Company dated April 6, 2010
(the “Exchange Act Documents”), each as filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”); and the Indenture. We have
also examined the free writing prospectus prepared by the Company and filed with
the Commission on April 6, 2010 pursuant to Rule 433 of the Act (the “Permitted
Free Writing Prospectus”). The documents listed in Schedule III to
the Underwriting Agreement, taken together, are collectively referred to as the
“Pricing Disclosure Package.”
In
addition, we have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the certificate representing
the Notes, of which we have examined a specimen), and we have made such other
and further investigations as we deemed necessary to express the opinions
hereinafter set forth. In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter
documents.
The
Indenture and the Underwriting Agreement are herein referred to collectively as
the “Agreements.”
Based
upon the foregoing, and subject to the qualifications and limitations stated
herein, we are of the opinion, relying as aforesaid and as to all matters
covered hereby which are governed by or dependent upon the law of the State 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 or
dependent upon the law 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 Florida, is duly qualified to carry
on its business as a foreign corporation under the laws of the States of Georgia
and Mississippi and has due corporate authority to carry on the public utility
business in which it
2
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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package and 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 Pricing
Disclosure Package, 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
3
the
course of the preparation by the Company of the Registration Statement, the
Pricing Disclosure Package, the Final Supplemented Prospectus and the Exchange
Act Documents, we participated in conferences with certain officers and
employees of the Company, with representatives of Deloitte & Touche LLP and
with counsel to the Company. Based upon our examination of the
Registration Statement, the Pricing Disclosure Package, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement, the Pricing Disclosure
Package and the Final Supplemented Prospectus and our participation in the
conferences referred to above, (i) we are of the opinion that the Registration
Statement, on the Effective Date and the Final Supplemented Prospectus, as of
April 6, 2010, complied as to form in all material respects with the relevant
requirements of the Act and the applicable rules and regulations of the
Commission thereunder and that each Exchange Act Document, as of its date 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 (or omitted from) the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) we confirm to you that nothing came to our
attention which gives us reason to believe that the Registration Statement, on
the 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, that the Pricing
Disclosure Package, as of the Applicable Time, included an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contained, as of its date, or contains, on the date
hereof, any untrue statement of a material fact or omitted, as of its date, or
omits, on the date hereof, to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in (or omitted from) the Registration
Statement, the Pricing Disclosure Package, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Pricing Prospectus and the Final Supplemented Prospectus under the caption
“Description of the Series 2010A Senior Notes ─ Book-Entry Only Issuance ─ The
Depository Trust Company.”
We are
members of the State Bar of New York and we do not express any opinion herein
concerning any law other than the law of the State of New York and the federal
law of the United States and, to the extent set forth herein, the laws of the
States of Florida, Georgia and Mississippi.
This
opinion letter is rendered by us only to you and is solely for your benefit in
your capacity as Underwriters in connection with the above
matter. This opinion letter is limited to the date
hereof. This letter opinion may not be used, quoted or relied upon by
you for any other purpose or relied upon by or furnished to any other person
without
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our prior
written consent except that Beggs & Lane and Troutman Sanders LLP may rely
on this opinion letter in giving their opinions pursuant to Section 6 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
& LEBOEUF LLP
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