Exhibit 1.2
$150,000,000
Series 2006A 5.65% Senior Insured Quarterly
Notes
due December 15, 2040
GEORGIA POWER
COMPANY
UNDERWRITING AGREEMENT
December 8, 2006
Edward D. Jones & Co., L.P.
|
as Representative of the Several Underwriters
listed on Schedule I hereto
|
12555 Manchester Road
St. Louis, Missouri 63131
Ladies and Gentlemen:
Georgia Power Company, a Georgia
corporation (the “Company”), confirms its agreement
(the “Agreement”) with you and the other Underwriters
named in Schedule I hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 11
hereof), for whom you are acting as representative (in such
capacity you shall hereinafter be referred to as the
“Representative”), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly, of $150,000,000 aggregate principal amount of the
Series 2006A 5.65% Senior Insured Quarterly Notes due December 15,
2040 (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 Representative deems advisable after this Agreement
has been executed and delivered. The Senior Notes will be issued
pursuant to an indenture, dated as of January 1, 1998 (the
“Base Indenture”), by and between the Company and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A.
(formerly known as The Chase Manhattan Bank)), as trustee (the
“Trustee”), as heretofore supplemented and amended and
as to be further supplemented and amended by a twenty-seventh
supplemental indenture, dated as of December 13, 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.
SECTION 1. REPRESENTATIONS
AND WARRANTIES . The Company represents and warrants to the
Underwriters as follows:
(a) A registration statement,
as amended, on Form S-3 (File Nos. 333-121202, 333-121202-01,
333-121202-02, 333-121202-03 and 333-121202-04) 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, as amended, has been issued and no
proceeding for that purpose or pursuant to Section 8A of the 1933
Act against the Company or related to the offering has been
initiated or, to the best knowledge of the Company, threatened by
the Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration
statement, as amended, 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 amended, as
used with respect to the Senior Notes, including the information
deemed a part thereof pursuant to Rule 430B(f)(1) under the 1933
Act on the date of such registration statement’s
effectiveness for purposes of Section 11 of the 1933 Act, as such
Section applies to the Company and the Underwriters for the Senior
Notes pursuant to Rule 430B(f)(2) under the 1933 Act (the
“Effective Date”), including the exhibits thereto and
all documents incorporated by reference therein pursuant to Item 12
of Form S-3 at the Effective Date, being hereinafter called the
“Registration Statement” the base prospectus relating
to the Senior Notes and certain other securities of the Company, in
the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement relating to
the Senior Notes, being hereinafter called the “Basic
Prospectus” the Basic Prospectus as amended and supplemented
by a preliminary prospectus supplement dated December 4, 2006
relating to the Senior Notes which has been filed with the
Commission pursuant to Rule 424(b) under the 1933 Act, as it may be
further amended and supplemented immediately prior to the
Applicable Time (as defined below) is hereinafter called the
“Pricing Prospectus” the Basic Prospectus as amended or
supplemented in final form, including by a prospectus supplement
relating to the Senior Notes in the form in which it is filed with
the Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 4(e) hereof is hereinafter called the
“Final Supplemented Prospectus” any reference herein to
any Preliminary Prospectus, the Basic Prospectus, the Pricing
Prospectus or the Final Supplemented Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, as of
the date of such Preliminary Prospectus, Basic Prospectus, Pricing
Prospectus or Final Supplemented Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary
Prospectus, the Basic Prospectus, the Pricing Prospectus or the
Final Supplemented Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus, Basic Prospectus, Pricing Prospectus or Final
Supplemented
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Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and incorporated by reference in such
Preliminary Prospectus, Basic Prospectus, Pricing Prospectus or
Final Supplemented Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the 1934 Act after the
effective date of the Registration Statement that is incorporated
by reference in the Registration Statement.
For purposes of this Agreement, the
“Applicable Time” is 10:30 a.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 1934
Act and the rules and regulations of the Commission thereunder, and
as of such time of filing, when read together with the Pricing
Prospectus and any Permitted Free Writing Prospectus (as defined in
Section 3(a) hereof), none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Final Supplemented Prospectus or
any further amendment or supplement thereto, when such documents
are filed with the Commission, will comply in all material respects
with the applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder and, when read together
with the Final Supplemented Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters through the Representative expressly for use in the
Pricing Prospectus, any Permitted Free Writing Prospectus and the
Final Supplemented Prospectus; (B) any information set forth in the
Pricing Prospectus or the Final Supplemented Prospectus under the
caption “Description of the Series 2006A Senior Notes -
Book-Entry-Only Issuance - The Depository Trust Company;” or
(C) any information set forth in the Pricing Prospectus or the
Final Supplemented Prospectus (i) under the captions “The
Policy and the Insurer” and “Experts” (as it
relates to information with respect to the Insurer) or (ii) in
Appendix A thereto.
(c) The Registration Statement
and the Final Supplemented Prospectus comply, and any further
amendments or supplements thereto, when any such amendments become
effective or supplements are filed with the Commission, as the case
may
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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 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)
any statements or omissions made in a Permitted Free Writing
Prospectus, the Registration Statement, the Pricing Prospectus or
the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by
the Underwriters through the Representative expressly for use
therein; (C) any information set forth in the Pricing Prospectus or
the Final Supplemented Prospectus under the caption
“Description of the Series 2006A Senior Notes -
Book-Entry-Only Issuance - The Depository Trust Company;” or
(D) any information set forth in the Pricing Prospectus or the
Final Supplemented Prospectus (i) under the captions “The
Policy and the Insurer” and “Experts” (as it
relates to information with respect to the Insurer) or (ii) in
Appendix A thereto.
(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 Basic
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 Representative 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.
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(f) At the determination date
for purposes of the Senior Notes within the meaning of Rule 164(h)
under the 1933 Act, the Company was not an “ineligible
issuer” as defined in Rule 405 under the 1933 Act.
(g) Since the respective dates
as of which information is given in the Registration Statement and
the Pricing Prospectus, except as otherwise stated therein, there
has been no material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business.
(h) The Company is a
corporation duly organized and existing under the laws of the State
of Georgia and has due corporate authority to carry on the public
utility business in which it is engaged and to own and operate the
properties used by it in such business, to enter into and perform
its obligations under this Agreement and the Indenture and to issue
and sell the Senior Notes to the Underwriters.
(i) This Agreement has been
duly authorized, executed and delivered by the Company.
(j) The Indenture has been
duly authorized by the Company and, on the Closing Date (as
hereinafter defined), will have been duly executed and delivered by
the Company, and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will, on
the Closing Date constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar
laws affecting creditors' rights generally or (2) general
principles of equity (regardless of whether enforcement is
considered in a proceeding at law or in equity) (the
“Enforceability Exceptions”); the Indenture will
conform in all material respects to all statements relating thereto
contained in the Pricing Disclosure Package and the Final
Supplemented Prospectus; and, on the Closing Date, the Indenture
will have been duly qualified under the 1939 Act.
(k) The issuance and delivery
of the Senior Notes have been duly authorized by the Company and,
on the Closing Date, the Senior Notes will have been duly executed
by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as
described in this Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Pricing
Disclosure Package and the Final Supplemented
Prospectus.
(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
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transactions contemplated herein and
therein and compliance by the Company with its obligations
hereunder and thereunder shall have been duly authorized by all
necessary corporate action on the part of the Company and do not
and will not result in any violation of the charter or bylaws of
the Company, and do not and will not conflict with, or result in a
breach of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
under (A) any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company is a
party or by which it may be bound or to which any of its properties
may be subject (except for conflicts, breaches or defaults which
would not, individually or in the aggregate, be materially adverse
to the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its
properties.
(m) The Company has duly
authorized all necessary action to be taken by it for the
procurement of an irrevocable financial guarantee insurance policy
(the “Insurance Policy”) issued by XL Capital Assurance
Inc. (the “Insurer”), insuring the payment of principal
and interest on the Senior Notes, when due.
(n) No authorization,
approval, consent or order of any court or governmental authority
or agency is necessary in connection with the issuance and sale by
the Company of the Senior Notes or the transactions by the Company
contemplated in this Agreement, except (A) such as may be required
under the 1933 Act or the rules and regulations thereunder; (B)
such as may be required under the Federal Power Act; (C) the
qualification of the Indenture under the 1939 Act; (D) the approval
of the Georgia Public Service Commission (the “Georgia
Commission”); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or “blue sky” laws.
(o) 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 (i)
the unaudited financial statements included in the Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2006 incorporated by reference in the Basic Prospectus, the Pricing
Prospectus and the Final Supplemented Prospectus reflect the
Company’s accounting for the merger of Savannah Electric and
Power Company into the Company (the “Merger”) in a
manner similar to a pooling of interests and give effect to the
Merger as if it had occurred on January 1, 2005 and (ii) the
unaudited financial statements incorporated by reference in the
Basic Prospectus, the Pricing Prospectus and the Final
Supplemented
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Prospectus may be subject to normal
year-end adjustments) throughout the periods involved and
necessarily include amounts that are based on the best estimates
and judgments of management. The selected financial data and the
summary financial information included in the Pricing Prospectus
and the Final Supplemented Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited and unaudited financial
statements incorporated by reference in the Registration
Statement.
SECTION 2. SALE AND
DELIVERY TO THE UNDERWRITERS; CLOSING .
(a) On the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, the principal amount of the Senior Notes set forth in
Schedule I to this Agreement opposite the name of such Underwriter
(plus any additional amount of Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of
Section 11 hereof) at a price equal to 96.85% of the principal
amount thereof.
(b) Payment of the purchase
price and delivery of certificates for the Senior Notes shall be
made at the offices of Dewey Ballantine LLP, 1301 Avenue of the
Americas, New York, New York 10019 at 10:00 A.M., New York Time, on
December 13, 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 Representative and the Company (such
time and date of payment and delivery being herein called the
“Closing Date”). Payment shall be made to the Company
by wire transfer in federal funds at the Closing Date against
delivery of the Senior Notes to the Representative on behalf of all
of the Underwriters. It is understood that each Underwriter has
authorized the Representative, for each Underwriter’s
account, to accept delivery of, receipt for, and make payment of,
the principal amount of the Senior Notes which each Underwriter has
agreed to purchase. The Representative, 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 Representative
not later than 12:00 Noon, New York time, on the last business day
prior to the Closing Date.
SECTION 3. FREE WRITING
PROSPECTUSES .
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(a) The Company represents and
agrees that, without the prior consent of the Representative, it
has not made and will not make any offer relating to the Senior
Notes that would constitute a “free writing prospectus”
as defined in Rule 405 under the 1933 Act, other than a Permitted
Free Writing Prospectus; each Underwriter, severally and not
jointly, represents and agrees that, without the prior consent of
the Company and the Representative, 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
Representative, 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 Representative, and to file such
pricing term sheet pursuant to Rule 433(d) under the 1933 Act
within the time period prescribed by such Rule.
(c) The Company and the
Representative have complied and will comply with the requirements
of Rule 433 under the 1933 Act applicable to any free writing
prospectus, including timely Commission filing where required and
legending.
(d) The Company agrees that if
at any time following issuance of a Permitted Free Writing
Prospectus any event occurred or occurs as a result of which such
Permitted Free Writing Prospectus would conflict with the
information in the Registration Statement, the Pricing Prospectus
or the Final Supplemented Prospectus or include an untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
then prevailing, not misleading, the Company will give prompt
notice thereof to the Representative and, if requested by the
Representative, 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 Representative, 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
Representative, 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
Representative so that any use of the Pricing Disclosure Package
may cease until it is amended or supplemented.
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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
Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the
institution of any proceedings for that purpose or pursuant to
Section 8A of the 1933 Act against the Company or related to the
offering, of which the Company shall have received notice, and will
use its best efforts to prevent the issuance of any such stop order
and to secure the prompt removal thereof, if issued. The Company
will deliver to the Representative sufficient conformed copies of
the Registration Statement, the Basic Prospectus, the Pricing
Prospectus and the Final Supplemented Prospectus and of all
supplements and amendments thereto (in each case without exhibits)
for distribution to the Underwriters and, from time to time, as
many copies of the Basic Prospectus, the Pricing Prospectus and the
Final Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish
the Underwriters with written or electronic copies of each
amendment and supplement to the Final Supplemented Prospectus
relating to the offering of the Senior Notes in such quantities as
the Underwriters may from time to time reasonably request. If,
during the period (not exceeding nine months) when the delivery of
a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) shall be required by law in connection
with the sale of any Senior Notes by an Underwriter, any event
relating to or affecting the Company, or of which the Company shall
be advised in writing by the 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 1933 Act) is delivered, or if for any
other reason it shall be necessary during such period to amend or
supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the Preliminary
Prospectus or the Basic Prospectus in order to comply with the 1933
Act or the 1934 Act, the Company forthwith will (i) notify the
Underwriters to suspend solicitation of purchases of the Senior
Notes and (ii) at its expense, make any such filing or prepare and
furnish to the Underwriters a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the
Final Supplemented Prospectus which will supplement or amend the
Final Supplemented Prospectus so that, as supplemented or amended,
it will not contain
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any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances when the
Final Supplemented Prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the 1933 Act) is delivered, not
misleading or which will effect any other necessary compliance. In
case any Underwriter is required to deliver a prospectus in
connection with the sale of any Senior Notes after the expiration
of the period specified in the preceding sentence, the Company,
upon the request of such Underwriter, will furnish to such
Underwriter, at the expense of such Underwriter, a reasonable
quantity of a supplemented or amended prospectus, or supplements or
amendments to the Final Supplemented Prospectus, complying with
Section 10(a) of the 1933 Act. During the period specified in the
second sentence of this subsection, the Company will continue to
prepare and file with the Commission on a timely basis all
documents or amendments required under the 1934 Act and the rules
and regulations thereunder; provided, that the Company shall not
file such documents or amendments without also furnishing copies
thereof prior to such filing to the Representative and Dewey
Ballantine 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
Representative may designate; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a consent
to service of process or to file annual reports or to comply with
any other requirements in connection with such qualification deemed
by the Company to be unduly burdensome.
(d) The Company will make
generally available to its security holders as soon as practicable
but not later than 45 days after the close of the period covered
thereby, an earnings statement of the Company (in form complying
with the provisions of Rule 158 of the rules and regulations under
the 1933 Act) covering a twelve-month period beginning not later
than the first day of the Company's fiscal quarter next following
the “effective date” (as defined in Rule 158) of the
Registration Statement.
(e) As soon as practicable
after the date of this Agreement, and in any event within the time
prescribed by Rule 424 under the 1933 Act, the Company will file
the Final Supplemented Prospectus, in a form approved by the
Representative, such approval not to be unreasonably withheld, with
the Commission and will advise the Representative of such filing
and will confirm such advice in writing. Furthermore, the Company
will make any other required filings pursuant to Rule 433(d)(1) of
the 1933 Act within the time required by such Rule.
(f) During a period of 15 days
from the date of this Agreement, the Company will not, without the
Representative’s 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
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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
Representative agrees that commercial paper or other debt
securities with scheduled maturities of less than one year are not
subject to this Section 4(f).
SECTION 5. PAYMENT OF
EXPENSES . The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, including but
not limited to, the expenses of (i) the printing and filing of the
Registration Statement as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the
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 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.
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 1933 Act against the Company or related to the
offering shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of
the Pricing Prospectus or the Final Supplemented Prospectus, or any
supplement thereto, is required pursuant to Rule 424, the Pricing
Prospectus and the Final Supplemented Prospectus, and any such
supplement, as applicable, shall have been filed in the manner and
within the time period required by Rule 424. The pricing term sheet
contemplated by 3(b) hereto, and any other material required to be
filed by the Company pursuant to Rule 433(d) under the 1933 Act,
shall have been filed by the Company with the
11
Commission within the applicable
time periods prescribed for such filings by Rule 433.
(b) Any required orders of the
Georgia Commission and the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriters or the
Company (but all provisions of such order or orders heretofore
entered, copies of which have heretofore been delivered to the
Representative, are deemed acceptable to the Underwriters and the
Company and all provisions of such order or orders hereafter
entered shall be deemed acceptable to the Underwriters and the
Company unless within 24 hours after receiving a copy of any such
order any party to this Agreement shall give notice to the other
parties to the effect that such order contains an unacceptable
provision).
(c) On the Closing Date the
Representative shall have received:
(1) The opinion, dated the
Closing Date, of Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
IV.
(2) The opinion, dated the
Closing Date, of Emmet, Marvin & Martin, LLP, counsel to the
Trustee, substantially in the form attached hereto as Schedule
V.
(3) The opinion, dated the
Closing Date, of Dewey Ballantine LLP, counsel for the
Underwriters, substantially in the form attached hereto as Schedule
VI.
(4) The opinion, dated the
Closing Date, of counsel for the Insurer, substantially in the form
attached hereto as Schedule VII.
(d) At the Closing Date, there
shall not have been, since the date hereof or since the respective
dates as of which information is given in the Registration
Statement and the Final Supplemented Prospectus, any material
adverse change in the business, properties or financial condition
of the Company, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate
of the President or any Vice President of the Company, and dated as
of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of the Closing Date,
(iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied on or prior
to the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose or pursuant to Section 8A of the 1933
Act against the Company or related to the offering have
12
been initiated or, to the knowledge
of the Compa
