EXHIBIT 1
$200,000,000 Series E 6.375% Senior Notes due November 15, 2036
SOUTHERN POWER COMPANY
UNDERWRITING AGREEMENT
November 13, 2006
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York
10013
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
As Representatives of
the Several Underwriters named on Schedule I hereto
Ladies and Gentlemen:
Southern Power Company, a Delaware 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 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 $200,000,000 aggregate
principal amount of
the Series E 6.375% Senior Notes due November 15, 2036 (the "Senior
Notes") as
set forth in Schedule I hereto.
The Company understands that the Underwriters are making a
public offering of the Senior Notes pursuant to this Agreement. The
Senior Notes
will be issued pursuant to an indenture, dated as of June 1, 2002,
as heretofore
supplemented (the "Base Indenture"), between the Company and The
Bank of New
York, as trustee (the "Trustee"), and as further supplemented by a
third
supplemental indenture, dated as of November 21, 2006, 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.
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SECTION 1.
REPRESENTATIONS AND WARRANTIES. The Company represents and
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warrants to the Underwriters as follows:
(a) A registration
statement on Form S-3, as amended, (File Nos. 333-134219) 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 "Securities 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, as amended,
has been issued and no proceeding for
that
purpose or pursuant to
Section 8A of the
Securities 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, as
amended, or filed with the
Commission pursuant
to Rule 424(a) of the rules and
regulations
of the
Commission under
the Securities Act, being hereinafter called a
"Preliminary Prospectus"); such registration statement, as amended,
as used
with
respect to the Senior Notes, including the information
deemed a part
thereof pursuant to Rule 430B(f)(1) under the Securities Act on the
date of
such
registration
statement's
effectiveness for purposes of Section 11 of
the
Securities
Act, as such Section applies to the Company and the
Underwriters for the
Senior Notes pursuant
to Rule 430B(f)(2)
under the
Securities 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
November 13, 2006 relating to the
Senior Notes and as further amended and supplemented immediately prior to
the
Applicable
Time (as defined
below) has been filed with the Commission
pursuant to Rule
424(b) under the Securities Act (such document 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 Securities 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
Securities 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 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
"Exchange Act"), and
incorporated by reference in such Preliminary Prospectus, Basic
Prospectus,
Pricing Prospectus or
Final Supplemented
Prospectus, as the
case may be;
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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 Exchange 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 4:15
p.m. EST (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
Exchange 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
Exchange 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 the Underwriters 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 E 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
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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 Securities Act, the Exchange Act, the 1939 Act
(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, 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)
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 the Underwriters 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 E 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 the Underwriters
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.
(f) At the
determination date for purposes of the Senior Notes within the
meaning of Rule 164(h) under the Securities Act, the Company was
not an
"ineligible issuer" as defined in Rule 405 under the Securities
Act.
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(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 Delaware and has due corporate authority to conduct
its
business 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.
(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
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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 Securities Act or the rules
and
regulations thereunder; (B) such as may be required under the
Federal
Power Act; (C) such consents, approvals, authorizations,
registrations
or qualifications as may be required under state securities or
"blue
sky" laws and (D) the qualification of the Indenture under the
1939
Act.
(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
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 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, 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
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Section 11 hereof), at a price equal to 99.125% of the principal
amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made
at the offices of Balch & Bingham LLP, 30 Allen Place, Suite
700, 30 Ivan Allen,
Jr. Blvd., NW, Atlanta, Georgia 30308 at 10:00 A.M., New York time,
on November
21, 2006 (unless postponed in accordance with the provisions of
Section 11) 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 Lehman
Brothers Inc. It is understood that each Underwriter has authorized
Lehman
Brothers 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. Lehman Brothers Inc.,
individually and not
as a representative of the Underwriters, may (but shall not be
obligated to)
make payment of the principal amount of the Senior Notes to be
purchased by any
Underwriter whose payment has not been received by the Closing
Date, but such
payment shall not relieve such Underwriter from its obligations
hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the
offices of The
Depository Trust Company in New York, New York or its designee, and
the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the 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 Securities 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 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; 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
Securities Act within the time period prescribed by such Rule.
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(c) The Company and
the Representatives have complied and will comply with
the
requirements of Rule 433 under the Securities 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 an 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 advised
thereof, it will advise the Representatives
orally of the issuance
of any stop order
under the Securities Act with
respect to
the Registration Statement, or the institution of any
proceedings for that
purpose or pursuant to
Section 8A of the
Securities
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
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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 Securities Act or
the
Exchange 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
Securities
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 Underwriters,
shall
occur, which in the
opinion of the
Company or of
Underwriters'
counsel
should be set
forth in a supplement to or an amendment of the Final
Supplemented
Prospectus, as the
case may be, in order
to make the Final
Supplemented
Prospectus not
misleading in the light of the circumstances
when
it (or in lieu
thereof, the notice
referred to in Rule
173(a) under
the
Securities
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 Exchange Act any document
incorporated
by
reference in the Final Supplemented Prospectus in order to comply with
the
Securities Act or the
Exchange 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 Securities 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 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
Securities 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
Exchange 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
Ballantine LLP.
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(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 Securities 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 Securities
Act,
to file the Final Supplemented Prospectus, in a form approved by
the
Representatives, such approval not to be unreasonably withheld,
with
the Commission and to advise the Representatives of such filing and
to
confirm such advice in writing. Furthermore, the Company will make
any
other required filings pursuant to Rule 433(d)(1) of the Securities
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.
-------------------
(a) The Company agrees
to 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
4(c) hereof, including filing fees and the
reasonable fees and
disbursements of Dewey Ballantine 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
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<PAGE>
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 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, and (xi) the cost of
qualifying the Senior Notes with The Depository Trust Company.
(b) 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 Ballantine 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 Securities 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 Securities 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 any applicable state commission or the Federal
Energy Regulatory 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 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).
11
<PAGE>
(c) On the Closing
Date the Representatives shall have received:
(1) The
opinion, dated the
Closing Date,
of Balch & Bingham
LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule IV-A.
(2) The
opinion, dated the
Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached
hereto as Schedule IV-B.
(3) The
opinion, dated the
Closing Date, of
Emmett, Marvin &
Martin,
LLP, counsel to the
Trustee, substantially
in the form
attached hereto as Schedule V.
(4) The
opinion, dated the Closing Date, of Dewey Ballantine LLP,
counsel
for the Underwriters, substantially in the form attached hereto
as
Schedule VI.
(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
Securities
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
Securities Act and the rules and regulations under the Securities 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 Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, comply as to form in all
material
respects with the applicable accounting requirements of the Exchange Act
and
the rules and regulations under the Exchange Act; and (C) on
the basis
12
<PAGE>
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)
("PCAOB") for a review of interim financial statement
information as
described in PCAOB Interim Standard AU 722, "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 do not
comply as to form in all material respects with the
applicable accounting
requirements
of the Exchange 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 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 unaudited 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
