Exhibit 1
$65,000,000 Series F 5.60% Senior Insured Quarterly Notes
due April 1, 2033
GULF POWER COMPANY
UNDERWRITING AGREEMENT
March 21, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with you and each of the other
Underwriters named in Schedule I hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof) with respect to the sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of $65,000,000 aggregate
principal amount of the Series F 5.60% Senior Insured Quarterly Notes due April
1, 2033 (the "Senior Notes") as set forth in Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank (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
sixth supplemental indenture, dated as of March 26, 2003, to the Base Indenture
relating to the Senior Notes (the "Supplemental Indenture" and, together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File Nos. 333-59942,
000-00000-00 and 333-59942-02), in respect of the Senior Notes and
certain other securities has been prepared and filed in accordance
with the provisions of the Securities Act of 1933, as amended (the
"1933 Act"), with the Securities and Exchange Commission (the
"Commission"); such registration statement, as amended, and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Underwriters, has been declared
effective by the Commission in such form (except that copies of the
registration statement, as amended, and any post-effective amendment
delivered to the Underwriters need not include exhibits but shall
include all documents incorporated by reference therein); and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or,
to the best knowledge of the Company, threatened by the Commission
(any preliminary prospectus, as supplemented by a preliminary
prospectus supplement, included in such registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the 1933 Act, being hereinafter
called a "Preliminary Prospectus"); such registration statement, as it
became effective, including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 at
the time such registration statement became effective, being
hereinafter called the "Registration Statement"; the prospectus
relating to the Senior Notes, in the form in which it was included in
the Registration Statement at the time it became effective, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective
date of the Registration Statement that is incorporated by reference
in the Registration Statement; the Prospectus as supplemented by a
preliminary prospectus supplement dated March 19, 2003 relating to the
Senior Notes, including any documents incorporated by reference
therein as of such date, being hereinafter called the "Preliminary
Supplemented Prospectus"; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to the
Senior Notes in the form in which it is filed with the Commission,
pursuant to Rule 424(b) under the 1933 Act in accordance with Section
3(e) hereof, including any documents incorporated by reference therein
as of the date of such filing, being hereinafter called the "Final
Supplemented Prospectus".
(b) The documents incorporated by reference in the Registration Statement
or Prospectus, when they were filed with the Commission, complied in
all material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder, and as of
such time of filing, when read together with the Prospectus, none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will comply in all material
respects with the applicable provisions of the 1934 Act and the rules
and regulations of the Commission thereunder and, when read together
with the Prospectus as it otherwise may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the Company makes no
warranty or representation to the Underwriters with respect to: (A)
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use in the Preliminary Supplemented
Prospectus or the Final Supplemented Prospectus; or (B) any
information set forth in the Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus under the captions "Description of
the Series F Senior Notes-- Book-Entry Only Issuance-- The Depository
Trust Company", "The Policy and the Insurer" and "Experts".
(c) The Registration Statement, the Prospectus, the Preliminary
Supplemented Prospectus and the Final Supplemented Prospectus comply,
and any further amendments or supplements to the Registration
Statement or the Prospectus, when any such post-effective amendments
are declared effective or supplements are filed with the Commission,
as the case may be, will comply, in all material respects with the
applicable provisions of the 1933 Act, the 1934 Act, the 1939 Act
(hereinafter defined) and the General Rules and Regulations of the
Commission thereunder and do not and will not, (i) as of the
applicable effective date as to the Registration Statement and any
amendment thereto, (ii) as of the filing date thereof as to the
Preliminary Supplemented Prospectus and (iii) as of the applicable
filing date as to the Final Supplemented Prospectus and any Prospectus
as further amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein 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 Final Supplemented Prospectus and any Prospectus as
further amended or 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) statements or omissions made in the
Registration Statement, the Preliminary Supplemented Prospectus or the
Final Supplemented Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
expressly for use therein; or (C) any information set forth in the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus under the captions "Description of the Series F Senior
Notes-- Book-Entry Only Issuance -- The Depository Trust Company",
"The Policy and the Insurer" and "Experts".
(d) With respect to the Registration Statement, the conditions for use of
Form S-3, as set forth in the General Instructions thereof, have been
satisfied.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Final Supplemented Prospectus, except
as otherwise stated therein, there has been no material adverse change
in the business, properties or financial condition of the Company.
(f) The Company is a corporation duly organized and existing under the
laws of the State of Maine, is duly qualified to carry on its business
as a foreign corporation under the laws of the States of Florida,
Georgia and Mississippi, and has due corporate authority to carry on
the public utility business in which it is engaged and to own and
operate the properties used by it in such business, to enter into and
perform its obligations under this Agreement and the Indenture and to
issue and sell the Senior Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and delivered by the
Company.
(h) The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company, and, assuming due authorization, execution and delivery of
the Indenture by the Trustee, the Indenture will, on the Closing Date,
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except to the extent
that enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights generally
or (2) general principles of equity (regardless of whether enforcement
is considered in a proceeding at law or in equity) (the
"Enforceability Exceptions"); the Indenture will conform in all
material respects to all statements relating thereto contained in the
Final Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been duly
authorized by the Company and, on the Closing Date, the Senior Notes
will have been duly executed by the Company and, when authenticated in
the manner provided for in the Indenture and delivered against payment
therefor as described in the Final Supplemented Prospectus, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
to the extent that enforcement thereof may be limited by the
Enforceability Exceptions, will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all
material respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Senior Notes and the consummation by
the Company of the transactions contemplated herein and therein and
compliance by the Company with its obligations hereunder and
thereunder shall have been duly authorized by all necessary corporate
action on the part of the Company and do not and will not result in
any violation of the charter or bylaws of the Company, and do not and
will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company under (A) any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument
to which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially adverse
to the transactions contemplated by this Agreement), or (B) any
existing applicable law, rule, regulation, judgment, order or decree
of any government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of its
properties.
(k) The Company has duly authorized all necessary action to be taken by it
for the procurement of an irrevocable financial guaranty insurance
policy (the "Insurance Policy") issued by XL Capital Assurance Inc.
(the "Insurer"), insuring the payment of principal and interest on the
Senior Notes, when due.
(l) No authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with the
issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except (A)
such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the Public
Utility Holding Company Act of 1935, as amended; (C) the qualification
of the Indenture under the 1939 Act; (D) the approval of the Florida
Public Service Commission (the "Florida Commission"); and (E) such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or "blue sky" laws.
(m) The financial statements incorporated by reference in the Registration
Statement, the Preliminary Supplemented 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 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 Registration Statement, the Preliminary
Supplemented 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 and unaudited financial statements
incorporated by reference in the Registration Statement.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
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(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, the
principal amount of Senior Notes set forth in Schedule I to this
Agreement opposite the name of such Underwriter (plus any additional
amount of Senior Notes that such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof), at a price
equal to 96.85% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Xxxxxxxx Xxxxxxx LLP, Bank of
America Plaza, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx at 10:00
A.M., Atlanta time, on March 26, 2003 (unless postponed in accordance
with the provisions of Section 10) or such other time, place or date as
shall be agreed upon by Underwriters and the Company (such time and
date of payment and delivery being herein called the "Closing Date").
Payment shall be made to the Company by wire transfer in federal funds
at the Closing Date against delivery of the Senior Notes to the
Underwriters.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriters not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will deliver to the
Underwriters conformed copies of the Registration Statement as
originally filed and of all amendments thereto, heretofore or
hereafter made, including any post-effective amendment (in each case
including all exhibits filed therewith, and including unsigned copies
of each consent and certificate included therein or filed as an
exhibit thereto, except exhibits incorporated by reference, unless
specifically requested). As soon as the Company is advised thereof, it
will advise the Underwriters orally of the issuance of any stop order
under the 1933 Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the Company shall
have received notice, and will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof, if issued. The Company will deliver to the Underwriters
sufficient conformed copies of the Registration Statement, the
Preliminary Supplemented Prospectus, the Prospectus and the Final
Supplemented Prospectus and of all supplements and amendments thereto
(in each case without exhibits) for distribution to the Underwriters
and, from time to time, as many copies of the Preliminary Supplemented
Prospectus, the Prospectus and the Final Supplemented Prospectus as
the Underwriters may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act.
(b) The Company will furnish the Underwriters with copies of each
amendment and supplement to the Preliminary Supplemented Prospectus
and Final Supplemented Prospectus relating to the offering of the
Senior Notes in such quantities as the Underwriters may from time to
time reasonably request. If, during the period (not exceeding nine
months) when the delivery of a prospectus shall be required by law in
connection with the sale of any Senior Notes by an Underwriter, any
event relating to or affecting the Company, or of which the Company
shall be advised in writing by the Underwriters, shall occur, which in
the opinion of the Company or of Underwriters' counsel should be set
forth in a supplement to or an amendment of the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus, as the
case may be, in order to make the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus not misleading in the light of
the circumstances when it is delivered, or if for any other reason it
shall be necessary during such period to amend or supplement the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus or to file under the 1934 Act any document incorporated by
reference in the Preliminary Prospectus or Prospectus in order to
comply with the 1933 Act or the 1934 Act, the Company forthwith will
(i) notify the Underwriters to suspend solicitation of purchases of
the Senior Notes and (ii) at its expense, make any such filing or
prepare and furnish to the Underwriters a reasonable number of copies
of a supplement or supplements or an amendment or amendments to the
Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus which will supplement or amend the Preliminary Supplemented
Prospectus or 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 Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus is delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to deliver a
prospectus in connection with the sale of any Senior Notes after the
expiration of the period specified in the preceding sentence, the
Company, upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable quantity
of a supplemented or amended prospectus, or supplements or amendments
to the Final Supplemented Prospectus, complying with Section 10(a) of
the 1933 Act. During the period specified in the second sentence of
this subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments required
under the 1934 Act and the rules and regulations thereunder; provided,
that the Company shall not file such documents or amendments without
also furnishing copies thereof prior to such filing to the
Underwriters and Xxxxx Xxxxxxxxxx LLP.
(c) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the applicable
securities laws of such states and the other jurisdictions of the
United States as the Underwriters may designate; provided, however,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or to
file a consent to service of process or to file annual reports or to
comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome.
(d) The Company will make generally available to its security holders as
soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the rules and regulations
under the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement.
(e) As soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act, to
file the Final Supplemented Prospectus with the Commission and to
advise the Underwriters of such filing and to confirm such advice in
writing.
(f) During a period of 15 days from the date of this Agreement, the
Company will not, without the Underwriters' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the
sale of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior Notes
(except for the Senior Notes issued pursuant to this Agreement). The
Underwriters agree that commercial paper or other debt securities with
scheduled maturities of less than one year are not subject to this
Section 3(f).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incidental to the performance of its obligations under this Agreement,
including but not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the preparation, issuance and delivery of the certificate(s) for the Senior
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants, (iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 3(c) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed $3,500), (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto and of the
Prospectus, the Preliminary Supplemented Prospectus, the Final Supplemented
Prospectus, and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky survey, (vii) the fee of
the National Association of Securities Dealers, Inc. in connection with its
review of the offering contemplated by this Agreement, if applicable, (viii) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Senior Notes,
(ix) any fees payable in connection with the rating of the Senior Notes, (x) the
cost and charges of any transfer agent or registrar, (xi) the premium payable to
the Insurer in connection with the issuance of the Insurance Policy, and (xii)
the cost of qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes, including fees and disbursements of their
counsel, Xxxxx Xxxxxxxxxx LLP.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the Senior Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement
shall be in effect on the Closing Date and no proceedings for that purpose shall
be pending before, or to the knowledge of the Company threatened by, the
Commission on such date. If filing of the Preliminary Supplemented Prospectus or
the Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Preliminary Supplemented Prospectus or the Final
Supplemented Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424.
(b) Any required orders of the Florida Commission and the Commission permitting
the transactions contemplated hereby substantially in accordance with the terms
and conditions hereof shall be in full force and effect and shall contain no
provision unacceptable to the Underwriters or the Company (but all provisions of
such order or orders heretofore entered, copies of which have heretofore been
delivered to the Underwriters, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter entered shall be
deemed acceptable to the Underwriters and the Company unless within 24 hours
after receiving a copy of any such order any party to this Agreement shall give
notice to the other parties to the effect that such order contains an
unacceptable provision).
(c) On the Closing Date, the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Xxxxx & Xxxx, a Registered Limited
Liability Partnership, general counsel for the Company, substantially in the
form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Xxxxxxxx Xxxxxxx LLP, counsel for
the Company, substantially in the form attached hereto as Schedule II-B.
(3) The opinion, dated the Closing Date, of Xxxxxxx, Swaine & Xxxxx, counsel to
the Trustee, substantially in the form attached hereto as Schedule III.
(4) The opinion, dated the Closing Date, of Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, substantially in the form attached hereto as Schedule IV.
(5) The opinion, dated the Closing Date, of counsel for the Insurer,
substantially in the form attached hereto as Schedule V.
(6) At the Closing Date, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Registration
Statement and the Final Supplemented Prospectus, any material adverse change in
the business, properties or financial condition of the Company, whether or not
arising in the ordinary course of business, and the Underwriters shall have
received a certificate of the President or any Vice President of the Company,
and dated as of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
on or prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to the knowledge of the Company,
threatened by the Commission.
(7) On the Closing Date, the Underwriters shall have received from Deloitte &
Touche LLP a letter dated the Closing Date to the effect that: (A) they are
independent public accountants with respect to the Company within the meaning of
the 1933 Act and the rules and regulations under the 1933 Act; (B) in their
opinion, the financial statements audited by them and incorporated by reference
in the Final Supplemented Prospectus comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the rules and
regulations under the 1934 Act; (C) on the basis of certain limited procedures
performed through a specified date not more than five business days prior to the
date of such letter, namely (i) reading the minute books of the Company; (ii)
performing the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in
Statement on Auditing Standards No. 71, "Interim Financial Information", on the
unaudited financial statements, if any, of the Company incorporated in the
Prospectus and of the latest available unaudited financial statements of the
Company, if any, for any calendar quarter subsequent to the date of those
incorporated in the Prospectus; and (iii) making inquiries of certain officials
of the Company who have responsibility for financial and accounting matters
regarding such unaudited financial statements or any specified unaudited amounts
derived therefrom (it being understood that the foregoing procedures do not
constitute an audit performed in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of significance with
respect to the comments made in such letter, and accordingly that 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 in the Prospectus, for them
to be in conformity with GAAP; (2) such unaudited condensed financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act as it applies to Form 10-Q and the related
published rules and regulations thereunder; (3) the unaudited amounts for
Operating Revenues, Earnings Before Income Taxes and Net Income After Dividends
on Preferred Stock and the unaudited Ratio of Earnings to Fixed Charges set
forth in the Prospectus do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period; (4) as of a
specified date not more than five business days prior to the date of delivery of
such letter, there has been any change in the capital stock or long-term debt of
the Company or any decrease in net assets as compared with amounts shown in the
latest audited balance sheet incorporated in the Prospectus, except in each case
for changes or decreases which (i) the Prospectus discloses have occurred or may
occur, (ii) are occasioned by the declaration of dividends, (iii) are occasioned
by draw-downs under existing pollution control financing arrangements, (iv) are
occasioned by draw-downs and regularly scheduled payments of capitalized lease
obligations, (v) are occasioned by the purchase or redemption of bonds or stock
to satisfy mandatory or optional redemption provisions relating thereto, (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 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 Prospectus.
(8) On the Closing Date, counsel for the Underwriters shall have been furnished
with such documents and opinions as it may reasonably require for the purpose of
enabling it to pass upon the issuance and sale of the Senior Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Senior Notes as herein contemplated
shall be satisfactory in form and substance to the Underwriters and Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters.
(9) That no amendment or supplement to the Registration Statement, the
Preliminary Supplemented Prospectus or the Final Supplemented Prospectus filed
subsequent to the date of this Agreement (including any filing made by the
Company pursuant to Section 13 or 14 of the 1934 Act) shall be unsatisfactory in
form to Xxxxx Xxxxxxxxxx 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 Underwriters, shall
materially impair the marketability of the Senior Notes.
(10) The Company shall have performed its obligations when and as provided under
this Agreement.
(11) Evidence that the Insurance Policy has been issued by the Insurer and
confirmation that the Senior Notes have been rated at least "Aaa" by Xxxxx'x
Investors Services, Inc. and at least "AAA" by Standard and Poor's Corporation,
a division of the XxXxxx-Xxxx Companies.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Company at any time prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Sections 4, 7 and 9(b) hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
--------------------------------------------
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
---------------
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
1934 Act or otherwise, and to reimburse any such Underwriter and such
controlling person or persons, if any, for any legal or other expenses incurred
by them in connection with defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Preliminary Supplemented
Prospectus, the Prospectus or the Final Supplemented Prospectus or, if the
Company shall furnish to the Underwriters any amendments or any supplements
thereto, or shall make any filings pursuant to Section 13 or 14 of the 1934 Act
which are incorporated therein by reference, in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus as so amended or supplemented, or arise out
of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue statement
or alleged untrue statement or omission or alleged omission which was made in
such Registration Statement, Preliminary Prospectus, Prospectus, Preliminary
Supplemented Prospectus or Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by any
Underwriter for use therein and except that this indemnity with respect to the
Preliminary Prospectus, the Prospectus, the Preliminary Supplemented Prospectus
or the Final Supplemented Prospectus, if the Company shall have furnished any
amendment or supplement thereto, shall not inure to the benefit of any
Underwriter (or of any person controlling such Underwriter) on account of any
losses, claims, damages, liabilities or actions arising from the sale of the
Senior Notes to any person if a copy of the Preliminary Prospectus, the
Prospectus, the Preliminary Supplemented Prospectus or the Final Supplemented
Prospectus (exclusive of documents incorporated therein by reference pursuant to
Item 12 of Form S-3), as the same may then be amended or supplemented, shall not
have been sent or given by or on behalf of such Underwriter to such person with
or prior to the written confirmation of the sale involved and the untrue
statement or alleged untrue statement or omission or alleged omission was
corrected in the Preliminary Prospectus, the Prospectus, the Preliminary
Supplemented Prospectus or the Final Supplemented Prospectus as supplemented or
amended at the time of such confirmation. Each Underwriter agrees, within ten
days after the receipt by it of notice of the commencement of any action in
respect of which indemnity may be sought by it, or by any person controlling it,
from the Company on account of its agreement contained in this Section 7, to
notify the Company in writing of the commencement thereof but the omission of
such Underwriter so to notify the Company of any such action shall not release
the Company from any liability which it may have to such Underwriter or to such
controlling person otherwise than on account of the indemnity agreement
contained in this Section 7. In case any such action shall be brought against an
Underwriter or any such person controlling such Underwriter and such Underwriter
shall notify the Company of the commencement thereof as above provided, the
Company shall be entitled to participate in (and, to the extent that it shall
wish, including the selection of counsel, to direct) the defense thereof, at its
own expense. In case the Company elects to direct such defense and select such
counsel, any Underwriter or controlling person shall have the right to employ
its own counsel, but, in any such case, the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person unless
the employment of such counsel has been authorized in writing by the Company in
connection with defending such action. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party. In no event shall any indemnifying party have any
liability or responsibility in respect of the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or threatened
action or claim effected without its prior written consent.
(b) Each Underwriter agrees severally and not jointly, to
indemnify and hold harmless the Company, its directors and such of its officers
who have signed the Registration Statement and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act to the same extent and upon the same terms as the indemnity
agreement of the Company set forth in Section 7(a) hereof, but only with respect
to alleged untrue statements or omissions made in the Registration Statement,
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
or such documents as amended or supplemented, in reliance upon and in conformity
with information furnished in writing to the Company by such Underwriter for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
------------------------
(a) The Underwriters 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 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 Underwriters, the marketability of the Senior Notes
shall have been materially impaired.
(b) If this Agreement shall be terminated by the Underwriters
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 Xxxxx
Xxxxxxxxxx LLP and for the out of pocket expenses (in an amount not exceeding
$10,000) reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Senior Notes and, upon such reimbursement,
the Company shall be absolved from any further liability hereunder, except as
provided in Sections 4 and 7.
SECTION 10. DEFAULT BY 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 Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for 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 Underwriters shall not have completed such arrangements
within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the Senior Notes, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds
10% of the Senior Notes, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Final
Supplemented Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters at Xxxxxx X. Xxxxx
& Co., L.P., 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx Xxxxxxxx 00000,
Attention: Legal Department and Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, Attention: Credit Capital Markets; notices
to the Company shall be mailed to Xxx Xxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxx, 00000-0100, Attention: Corporate Secretary, with a copy to
Southern Company Services, Inc., 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxx X. Xxxx.
SECTION 12. PARTIES. This Agreement shall inure to the benefit
of and be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Senior Notes from the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
XXXXXX X. XXXXX & CO., X.X.
XXXXXXX, XXXXX & CO.
Xxxxxx X. Xxxxx & Co., L.P.
By: ___________________________
Title:
By: ___________________________
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE I
NAME OF UNDERWRITER Principal Amount of Series F
Senior Notes
Xxxxxx X. Xxxxx & Co., L.P. $61,750,000
Xxxxxxx, Xxxxx & Co. $ 3,250,000
------------
TOTAL $65,000,000
===========
Schedule II-A
[Letterhead of XXXXX & XXXX]
March __, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
GULF POWER COMPANY
Series F 5.60% Senior Insured Quarterly Notes due April 1, 2033
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 $65,000,000
aggregate principal amount of its Series F 5.60% Senior Insured Quarterly Notes
due April 1, 2033 (the "Notes") pursuant to a Senior Note Indenture dated as of
January 1, 1998, by and between the Company and JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and as further supplemented by the Sixth Supplemental Indenture
dated as of March 26, 2003 (collectively, the "Indenture"); and (ii) the
purchase by you of the Notes pursuant to the terms of an Underwriting Agreement
dated March 21, 2003 (the "Underwriting Agreement"). This opinion is being
delivered to you pursuant to Section 5(c)(1) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-59942, 000-00000-00 and
333-59942-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
June 1, 2001 as supplemented by a final prospectus supplement relating to the
Notes dated March 21, 2003 (the "Final Supplemented Prospectus"), which pursuant
to Form S-3 incorporates by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended December 31, 2002 (the "Form 10-K") and the
Current Report on Form 8-K of the Company dated _________ (the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
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
Georgia law and the federal law of the United States upon the opinion dated the
date hereof rendered to you by Xxxxxxxx Xxxxxxx LLP, and relying as to matters
of New York law upon the opinion dated the date hereof rendered to you by Xxxxx
Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged, and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by you pursuant to the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 21, 2003, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of the date of filing of the Form
10-K (including the Exchange Act Documents on file with the Commission as of
such date), contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Final Supplemented
Prospectus (including the Exchange Act Documents) 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
the Registration Statement, the Final Supplemented Prospectus or the Exchange
Act Documents and with respect to information set forth in the Final
Supplemented Prospectus under the captions "Description of the Series F Senior
Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
We are members of the Florida Bar and we do not express any
opinion herein concerning any law other than the law of the States of Maine,
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.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxxxxx Xxxxxxx LLP and Xxxxx Xxxxxxxxxx LLP
may rely on this opinion in giving their opinions pursuant to Section 5(c) of
the Underwriting Agreement insofar as such opinions relates to matters of Maine,
Florida and Mississippi law.
Yours very truly,
XXXXX & XXXX
Schedule II-B
[Letterhead of XXXXXXXX XXXXXXX LLP]
March __, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
GULF POWER COMPANY
Series F 5.60% Senior Insured Quarterly Notes due April 1, 2033
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $65,000,000 aggregate principal
amount of its Series F 5.60% Senior Insured Quarterly Notes due April 1, 2033
(the "Notes") pursuant to a Senior Note Indenture dated as of January 1, 1998,
by and between the Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented and as
further supplemented by the Sixth Supplemental Indenture dated as of March 26,
2003 (collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated March 21, 2003 among
the Company and you (the "Underwriting Agreement"). This opinion is being
delivered to you pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-59942, 000-00000-00 and
333-59942-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
June 1, 2001 as supplemented by a final prospectus supplement dated March 21,
2003 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2002 (the "Form 10-K") and the Current Report on
Form 8-K of the Company dated _________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
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
Maine, Florida and Mississippi law upon the opinion dated the date hereof
rendered to you by Xxxxx & Xxxx, a Registered Limited Liability Partnership
("Xxxxx & Xxxx"), and relying as to matters of New York law upon the opinion
dated the date hereof rendered to you by Xxxxx Xxxxxxxxxx LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Indenture conforms as
to legal matters in all material respects to the description thereof in the
Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by you pursuant to the Underwriting Agreement, will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualifications that the
enforceability of the Company's obligations under the Notes may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Notes conform as to legal matters in
all material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Deloitte & Touche
LLP and with your counsel. Based upon our examination of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of March 21, 2003, 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 the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) 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 the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the captions "Description of the Series F
Senior Notes -- Book-Entry Only Issuance -- The Depository Trust Company" and
"The Policy and the Insurer" or in Appendix A thereto.
We are members of the State Bar of Georgia and we do not
express any opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set forth
herein, the laws of the States of Maine, Florida, Mississippi and New York.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon by you for any
other purpose or relied upon by or furnished to any other person without our
prior written consent, except that Xxxxx & Xxxx may rely on this opinion in
giving its opinion pursuant to Section 5(c) of the Underwriting Agreement
insofar as such opinion relates to matters of Georgia law and the federal law of
the United States and Xxxxx Xxxxxxxxxx LLP may rely on this opinion in giving
its opinion pursuant to Section 5(c) of the Underwriting Agreement insofar as
such opinion relates to matters of Georgia law.
Yours very truly,
XXXXXXXX XXXXXXX LLP
Schedule III
[Letterhead of Cravath, Swaine & Xxxxx]
March __, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gulf Power Company
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000
XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Gulf Power Company
Series F 5.60% Senior Insured Quarterly Notes
due April 1, 2033
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Gulf Power Company (the "Company") and the
Bank, as Trustee, and (b) the Sixth Supplemental Indenture dated as of March 26,
2003 (together with the Original Indenture, herein called the "Indenture"),
between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
(i) the Bank has been duly incorporated and is
validly existing as a
banking corporation in good standing under the laws of the State of New York;
(ii) the Bank has the corporate trust power and
authority to execute,
deliver and perform its duties under the Indenture, has duly executed and
delivered the Indenture, and, insofar as the laws governing the trust powers of
the Bank are concerned and assuming due authorization, execution and delivery
thereof by the Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws affecting creditors' rights generally
from time to time in effect and to general principles of equity (including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing), regardless of whether considered in a proceeding in equity or at law;
(iii) the execution, delivery and performance by the
Bank of the Indenture do not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
(iv) no approval, authorization or other action by,
or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the trust powers of the Bank is required in connection
with the execution and delivery by the Bank of the Indenture or the performance
by the Bank of its duties thereunder, except such as have been obtained, taken
or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, XXXXXX & XXXXX
Schedule IV
[Letterhead of XXXXX XXXXXXXXXX LLP]
March__, 2003
Xxxxxx X. Xxxxx & Co., X.X.
Xxxxxxx, Xxxxx & Co.
c/o Xxxxxx X. Xxxxx & Co., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
GULF POWER COMPANY
Series F 5.60% Senior Insured Quarterly Notes
due April 1, 2033
Ladies and Gentlemen:
We have represented you in connection with (i) the issuance by
Gulf Power Company (the "Company") of $65,000,000 of its Series F 5.60% Senior
Insured Quarterly Notes due April 1, 2033 (the "Notes") pursuant to a Senior
Note Indenture dated as of January 1, 1998, by and between the Company and
JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as trustee
(the "Trustee"), as heretofore supplemented and as further supplemented by the
Sixth Supplemental Indenture dated as of March 26, 2003 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated March 21, 2003, among the Company and you (the
"Underwriting Agreement"). This opinion is being delivered to you pursuant to
Section 5(c)(3) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (File Nos. 333-59942, 000-00000-00 and
333-59942-02) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
June 1, 2001 as supplemented by a final prospectus supplement dated March 21,
2003 (the "Final Supplemented Prospectus"), which pursuant to Form S-3
incorporates by reference the Annual Report on Form 10-K of the Company for the
fiscal year ended December 31, 2002 (the "Form 10-K") and the Current Report on
Form 8-K of the Company dated _________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
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 as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Maine, Florida and Mississippi upon the opinion of Xxxxx &
Xxxx, a Registered Limited Liability Partnership ("Xxxxx & Xxxx"), dated the
date hereof and addressed to you and as to all matters covered hereby which are
governed by or dependent upon the law of the State of Georgia upon the opinion
of Xxxxxxxx Xxxxxxx LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation under the
laws of the States of Florida, Georgia and Mississippi, and has due corporate
authority to carry on the public utility business in which it is engaged, to own
and operate the properties used by it in such business and to enter into and
perform its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Florida Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by you pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Deloitte & Touche LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of March 21, 2003, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of the date of filing
of the Form 10-K (including the Exchange Act Documents on file with the
Commission as of such date), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the Final
Supplemented Prospectus (including the Exchange Act Documents) 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 the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the captions "Description of the Series F
Senior Notes --Book-Entry Only Issuance --The Depository Trust Company" and "The
Policy and the Insurer" or in Appendix A thereto.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Maine, Florida, Georgia and Mississippi.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Xxxxx & Xxxx and Xxxxxxxx Xxxxxxx LLP may rely on this
opinion in giving their opinions pursuant to Section 5(c) of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Xxxxxxxx Xxxxxxx 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,
XXXXX XXXXXXXXXX LLP
Schedule V
[Letterhead of XL CAPITAL ASSURANCE INC.]
March __, 2003
To Each of the Addressees Listed
on the Attached Schedule A
GULF POWER COMPANY
Series F 5.60% Senior Insured Quarterly Notes
due April 1, 2033
Ladies and Gentlemen:
I am [Associate] General Counsel of XL Capital Assurance Inc.,
a New York stock insurance corporation (the "Corporation"), and have acted as
counsel to the Corporation in connection with the issuance of Financial Guaranty
Insurance Policy No. [ ] (the "Policy") relating to the above-captioned notes
(the "Notes").
In so acting, I have examined a copy of (a) the Policy, (b)
the Insurance and Indemnity Agreement, dated as of [ ] (the "Insurance
Agreement"), among [ ], (c) the Indemnification Agreement, dated as of [ ] (the
"Indemnification Agreement"), among [ ], (d) information under the heading "The
Policy and the Insurer" contained in the Prospectus of Gulf Power Company dated
June 1, 2001, as supplemented by a Prospectus Supplement dated March__, 2003
relating to the Notes (the "Final Supplemented Prospectus") and (e) such other
relevant documents as I have deemed necessary.
Based upon the foregoing, I am of the following opinion:
1. The Corporation is a stock insurance corporation, duly incorporated
and validly existing under the laws of the State of New York and is
licensed and authorized to issue the Policy and to perform its
obligations under the Policy under the laws of the State of New York.
2. The Policy, the Insurance Agreement and the Indemnification Agreement
(collectively, the "Insurance Documents") have been duly executed, and
the Policy, and assuming due authorization, execution and delivery of
the Insurance Agreement and the Indemnification Agreement by the
parties thereto (other than the Corporation), the Insurance Agreement
and the Indemnification Agreement are valid and binding obligations of
the Corporation enforceable in accordance with their terms except that
the enforcement of the Insurance Documents may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws 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 enforceability of rights to indemnification under the
Insurance Agreement and the Indemnification Agreement may be subject
to limitations of public policy under applicable securities laws.
3. The execution, delivery and performance by the Corporation of its
obligations under the Insurance Documents do not contravene any
provision of the charter or by-laws of the Corporation. The execution,
delivery and performance by the Corporation of its obligations under
the Insurance Documents do not, to the extent that either of the
following would affect the validity or enforceability of any of the
Insurance Documents, (a) contravene any law or government regulation
or order presently binding on the Corporation or (b) contravene any
provision of or constitute a default under any indenture, contract or
other instrument to which the Corporation is a party or by which the
Corporation is bound.
4. The Policy is exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act").
5. The information in the Final Supplemented Prospectus under the heading
"The Policy and the Insurer" is limited and does not purport to
provide the scope of disclosure required to be included in a
prospectus with respect to a registrant under the Act in connection
with a public offering and sale of securities of such registrant.
Within such limited scope of disclosure, however, there has not come
to my attention any information that would cause me to believe that
the description of the Corporation referred to above, as of the date
of the Final Supplemented Prospectus and as of the date hereof,
contained or contains 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 to make the statements therein, in the light
of the circumstances under which they were made, not misleading
(except that no opinion is rendered with respect to any financial
statements or other financial information contained or referred to
therein).
I am qualified to practice law in the State of New York and do
not purport to be an expert on, or to express any opinion concerning, any law
other than the laws of the State of New York and the federal laws of the United
States of America.
This opinion is being delivered to you in connection with the
issuance of the Policy and the execution of the other Insurance Documents and
may not be relied upon for any other purposes or by any other person without my
express written consent.
Very truly yours,
[Xxxx Xxxx]
[Xxxxx Xxxxxxxxx]
[Xxxx Xxxx Constant]
[Associate] General Counsel
