Exhibit 1
$110,000,000 Series M 5.300% Senior Notes due December 1, 2016
GULF POWER COMPANY
UNDERWRITING AGREEMENT
November 28, 2006
Barclays Capital Inc.
200 Park Avenue
New York, New York
10166
Goldman, Sachs & Co.
85 Broad Street
New York, New York
10004
Ladies and Gentlemen:
Gulf Power
Company, a Florida corporation (the "Company"),
confirms its agreement (the "Agreement") with you (collectively,
the
"Underwriters," which term shall also include any underwriter
substituted as
hereinafter provided in Section 11 hereof), with respect to the
sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly,
of $110,000,000 aggregate principal amount of the Series M 5.300%
Senior Notes
due December 1, 2016 (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 January 1,
1998, as
heretofore supplemented (the "Base Indenture"), 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"), and as further
supplemented
by a thirteenth supplemental indenture, dated as of December 6,
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:
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(a) A registration
statement on Form S-3
(File Nos. 333-138480,
333-138480-01
and
333-138480-02)
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
"Securities Act"),
with the
Securities and Exchange Commission (the "Commission"); such registration
statement and any
post-effective
amendment thereto, each in the form
heretofore delivered
or to be delivered to the Underwriters, has been
declared effective by
the Commission
in such form (except
that copies of
the
registration statement
and any post-effective
amendment delivered
to
the
Underwriters need not
include exhibits but shall include all documents
incorporated by
reference therein); and no stop order suspending the
effectiveness of
such registration statement has been issued and no
proceeding for that purpose or pursuant to Section 8A of the
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 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 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 28, 2006 relating to the
Senior Notes
which has been filed
with the Commission
pursuant to Rule
424(b) under
the Securities 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 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
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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;
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 5:30
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 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 M Senior Notes - Book-Entry-Only
Issuance - The
Depository Trust Company."
(c) The Registration
Statement and the
Final Supplemented
Prospectus comply,
and
any further amendments or supplements thereto, when any such
amendments
become effective or supplements are filed with the Commission,
as the case
may
be, will comply, in all material respects with the applicable
provisions of
the Securities Act, the Exchange Act, the 1939 Act
(hereinafter defined)
and the General Rules and Regulations of the
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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 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
M
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
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.
(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
4
<PAGE>
not
arising in the ordinary course of business.
(h) The Company is a
corporation duly organized and existing under the laws
of
the State of Florida, is duly qualified to carry on its business
as
a
foreign corporation under the laws of the States of Georgia and
Mississippi, and has due corporate authority to carry on the
public
utility business in which it is engaged and to own and operate
the
properties used by it in such business, to enter into and perform
its
obligations under this Agreement and the Indenture and to issue
and
sell
the Senior Notes to the Underwriters.
(i) This Agreement has
been duly authorized, executed and delivered by the
Company.
(j) The Indenture
has been duly
authorized by the
Company and, on the Closing
Date
(as hereinafter
defined), will have
been duly executed and delivered
by
the Company, and, assuming due authorization, execution and delivery of
the
Indenture by the
Trustee, the
Indenture will, on the Closing Date,
constitute a valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that
enforcement
thereof may
be limited by (1) bankruptcy, insolvency,
reorganization, receivership,
liquidation,
fraudulent
conveyance,
moratorium or other similar laws affecting creditors' rights generally or
(2)
general principles of
equity (regardless
of whether
enforcement
is
considered in a
proceeding
at law or in equity) (the "Enforceability
Exceptions"); the
Indenture will conform
in all material
respects to all
statements relating thereto contained in the Pricing Disclosure
Package and
the
Final Supplemented Prospectus; and, on the Closing Date, the
Indenture
will
have been duly qualified under the 1939 Act.
(k) The issuance and
delivery of the Senior Notes have been duly authorized
by
the Company and, on the Closing Date, the Senior Notes will
have
been
duly executed by the Company and, when authenticated in the
manner
provided for in the Indenture and delivered against payment
therefor as
described in this Agreement, will constitute valid and legally
binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that
enforcement
thereof may be limited by the Enforceability Exceptions, will be in
the
form
contemplated by, and entitled to the benefits of, the Indenture
and
will conform in all material respects to all statements
relating
thereto in the Pricing Disclosure Package and the Final
Supplemented
Prospectus.
(l) The execution,
delivery and
performance by the
Company of this Agreement,
the
Indenture and the Senior Notes and the consummation by the Company of
the
transactions
contemplated
herein and therein and
compliance
by the
Company with its obligations hereunder and thereunder shall
have been duly
authorized by all necessary corporate action on the part of the
Company and
do
not and will not result in any violation of the charter or bylaws
of the
Company, and do not
and will not conflict
with, or result in a
breach of
any
of the terms or provisions of, or constitute a default under, or
result
5
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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) the qualification of the Indenture under the 1939
Act;
(D)
the approval of the Florida Public Service Commission (the
"Florida
Commission"); and (E) such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or "blue sky" laws.
(n) The financial statements incorporated by reference in the Registration
Statement, the Pricing
Prospectus and the Final Supplemented Prospectus,
together with the
related schedules
and notes,
present fairly, in all
material respects, the
financial position,
results of operations and cash
flows of the Company
as of and for the
dates indicated;
said financial
statements have been
prepared in conformity
with accounting principles
generally accepted in
the United States
("GAAP") applied on a
consistent
basis (except that the
unaudited financial
statements
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 the Senior Notes
that such
Underwriter may become obligated to purchase pursuant to the
provisions of
6
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Section 11 hereof), at a price equal to 99.328% of the principal
amount thereof.
(b) Payment for and delivery of certificates for the Senior Notes
shall be made
at the offices of Troutman Sanders LLP, 600 Peachtree Street, Suite
5200,
Atlanta, Georgia 30308 at 10:00 A.M., New York time, on December 6,
2006 or such
other time, place or date as shall be agreed upon by the
Underwriters and the
Company (such time and date of payment and delivery being herein
called the
"Closing Date"). Payment shall be made to the Company by wire
transfer in
federal funds at the Closing Date against delivery of the Senior
Notes to
Barclays Capital Inc. It is understood that each Underwriter has
authorized
Barclays Capital 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. Barclays Capital 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 Underwriters 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
Underwriters, 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
Underwriters,
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 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 Underwriters,
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 Underwriters, 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 Underwriters 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
Underwriters
and,
if requested by the
Underwriters,
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 Underwriters, 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, 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
Underwriters 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 Underwriters
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 Underwriters 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
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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 Underwriters and Dewey
Ballantine LLP.
(c) The Company will
endeavor, in cooperation with the Underwriters, to
qualify the Senior Notes for offering and sale under the
applicable
securities laws of such states and the other jurisdictions of
the
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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 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
Underwriters, such approval not to be unreasonably withheld, with
the
Commission and to advise the Underwriters 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 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
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
10
<PAGE>
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 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 the Florida 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 shall be delivered to the Underwriters prior to the
Closing
Date, are deemed acceptable to the Underwriters and the Company and
all
provisions of such order or orders hereafter entered shall be
deemed
acceptable to the Underwriters and the Company unless within 24
hours
after receiving a copy of any such order any party to this
Agreement
shall give notice to the other parties to the effect that such
order
contains an unacceptable provision).
(c) On the Closing
Date the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Beggs & Lane, a
Registered Limited
Liability Partnership, general counsel for the Company,
substantially in the
form attached hereto as Schedule IV-A.
11
<PAGE>
(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 Emmet, 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
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 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 such Officer, threatened by the
Commission.
(e) The Underwriters 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
Underwriters
(which may refer to letters previously
delivered to the
Underwriters)
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
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
12
<PAGE>
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 After
Dividends on Preferred and Preference Stock and the
unaudited Ratio of Earnings to Fixed Charges set forth in the
Registration
Statement and the Pricing Prospectus or the Registration Statement, the
Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, do
not
agree with the
amounts set forth in or derived from the 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 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 unaudited
balance
sheet, incorporated by reference in the
Registration Statement
and the Pricing Prospectus or the Registration
Statement, the Pricing Prospectus and the Final Supplemented
Prospectus, as
applicable, except in
each case for changes
or decreases which (i) the
Registration Statement
and the Pricing Prospectus or the Registrati
