Exhibit 1
$200,000,000
Series 2007A 5.55% Senior Notes
due February 1, 2017
ALABAMA POWER
COMPANY
UNDERWRITING AGREEMENT
January 30, 2007
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina
28288-0602
As Representatives of the Several
Underwriters
Ladies and Gentlemen:
Alabama Power Company, an Alabama
corporation (the “ Company ”), confirms its
agreement (the “ Agreement ”) with you and the
other Underwriters named in Schedule I hereto (collectively, the
“ Underwriters ”, which term shall also include
any underwriter substituted as hereinafter provided in Section 11
hereof) for whom you are acting as representatives (in such
capacity you shall hereinafter be referred to as the “
Representatives ”), with respect to the sale by the
Company and the purchase by the Underwriters, acting severally and
not jointly, of $200,000,000 aggregate principal amount of the
Series 2007A 5.55% Senior Notes due February 1, 2017 (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 Representatives deem advisable after this Agreement
has been executed and delivered. The Senior Notes will be issued
pursuant to an indenture, dated as of December 1, 1997, 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 thirty-seventh supplemental
indenture, dated as of February 6, 2007, 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. 333-126348,
333-126348-01, 333-126348-02 and 333-126348-03) in respect of the
Senior Notes and certain other securities has been prepared and
filed in accordance with the provisions of the Securities Act of
1933, as amended (the “ 1933 Act ”), with the
Securities and Exchange Commission (the “ Commission
”); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to the Underwriters, has been declared effective by the
Commission in such form (except that copies of the registration
statement and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose or pursuant to
Section 8A of the 1933 Act against the Company or related to the
offering has been initiated or, to the best knowledge of the
Company, threatened by the Commission (any preliminary prospectus,
as supplemented by a preliminary prospectus supplement, included in
such registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under
the 1933 Act, being hereinafter called a “ Preliminary
Prospectus ”); such registration statement, as used with
respect to the Senior Notes, including the information deemed a
part thereof pursuant to Rule 430B(f)(1) under the 1933 Act on the
date of such registration statement’s effectiveness for
purposes of Section 11 of the 1933 Act, as such Section applies to
the Company and the Underwriters for the Senior Notes pursuant to
Rule 430B(f)(2) under the 1933 Act (the “ Effective
Date ”), including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form S-3
at the Effective Date, being hereinafter called the
“Registration Statement ; ” the base prospectus
relating to the Senior Notes and certain other securities of the
Company, in the form in which it has most recently been filed with
the Commission on or prior to the date of this Agreement relating
to the Senior Notes, being hereinafter called the “Basic
Prospectus;” the Basic Prospectus as amended and supplemented
by a preliminary prospectus supplement dated January 30, 2007
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 Prospectus, as the case may be, under the
Securities
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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 1:50 PM (New York Time) on the
date of this Agreement; the documents listed in Schedule III, taken
together and attached hereto, are collectively referred to as the
“Pricing Disclosure Package.”
(b) The
documents incorporated by reference in the Registration Statement
or the Pricing Prospectus, when they were filed with the
Commission, complied in all material respects with the applicable
provisions of the 1934 Act and the rules and regulations of the
Commission thereunder, and as of such time of filing, when read
together with the Pricing Prospectus and any Permitted Free Writing
Prospectus (as defined in Section 3(a) hereof), none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Final Supplemented Prospectus or any further amendment or
supplement thereto, when such documents are filed with the
Commission, will comply in all material respects with the
applicable provisions of the 1934 Act and the rules and regulations
of the Commission thereunder and, when read together with the Final
Supplemented Prospectus as it otherwise may be amended or
supplemented, will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the Company makes no warranty or representation to the
Underwriters with respect to: (A) any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through the
Representatives expressly for use in the Pricing Prospectus, any
Permitted Free Writing Prospectus and the Final Supplemented
Prospectus; or (B) any information set forth in the Pricing
Prospectus or the Final Supplemented Prospectus under the caption
“Description of the Series 2007A Senior Notes -
Book-Entry-Only Issuance - The Depository Trust
Company.”
(c) The
Registration Statement and the Final Supplemented Prospectus
comply, and any further amendments or supplements thereto, when any
such amendments become effective or supplements are filed with the
Commission, as the case may be, will comply, in all material
respects with the applicable provisions of the 1933 Act, the 1934
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
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as to the Pricing Disclosure Package
and (iii) as of the date of the Final Supplemented Prospectus as to
the Final Supplemented Prospectus or as of the date when any
supplement is filed as to the Final Supplemented Prospectus as
further supplemented or as of the Closing Date as to the Final
Supplemented Prospectus or the Final Supplemented Prospectus as it
may be further supplemented as provided above, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in
the case of the Registration Statement and any amendment thereto,
and, in the light of the circumstances under which they were made,
not misleading in the case of the Pricing Disclosure Package and
the Final Supplemented Prospectus as further supplemented; except
that the Company makes no warranties or representations with
respect to (A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the “ 1939 Act
”), (B) any statements or omissions made in a Permitted Free
Writing Prospectus, the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus in reliance upon
and in conformity with information furnished in writing to the
Company by any Underwriter through the Representatives expressly
for use therein or (C) any information set forth in the Pricing
Prospectus or the Final Supplemented Prospectus under the caption
“Description of the Series 2007A 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 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.
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(h) The
Company is a corporation duly organized and existing under the laws
of the State of Alabama 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 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
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materially adverse to the Company or
materially adverse to the transactions contemplated by this
Agreement), or (B) any existing applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory
body or administrative agency or other governmental body having
jurisdiction over the Company, or any of its properties.
(m) No
authorization, approval, consent or order of any court or
governmental authority or agency is necessary in connection with
the issuance and sale by the Company of the Senior Notes or the
transactions by the Company contemplated in this Agreement, except
(A) such as may be required under the 1933 Act or the rules and
regulations thereunder; (B) such as may be required under the
Federal Power Act; (C) the qualification of the Indenture under the
1939 Act; (D) the approval of the Alabama Public Service Commission
(the “ Alabama 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 Section 11 hereof), at a price equal to 99.010% 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 Balch & Bingham LLP, 1901 Sixth
Avenue North, Birmingham, Alabama at 10:00 A.M., New York Time, on
February 6, 2007 (unless postponed in accordance with the
provisions of Section 11) or such other time,
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place or date as shall be agreed
upon by the Representatives and the Company (such time and date of
payment and delivery being herein called the “ Closing
Date ”). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of
the Senior Notes to Citigroup Global Markets Inc. on behalf of all
of the Underwriters. It is understood that each Underwriter has
authorized Citigroup Global Markets Inc., for each
Underwriter’s account, to accept delivery of, receipt for,
and make payment of, the principal amount of the Senior Notes which
each Underwriter has agreed to purchase. Citigroup Global Markets
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.
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SECTION 3.
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FREE WRITING PROSPECTUSES
.
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(a) The
Company represents and agrees that, without the prior consent of
the Representatives, it has not made and will not make any offer
relating to the Senior Notes that would constitute a “free
writing prospectus” as defined in Rule 405 under the 1933
Act, other than a Permitted Free Writing Prospectus; each
Underwriter, severally and not jointly, represents and agrees that,
without the prior consent of the Company and the Representatives,
it has not made and will not make any offer relating to the Senior
Notes that would constitute a “free writing prospectus”
as defined in Rule 405 under the Act, other than a Permitted Free
Writing Prospectus or a free writing prospectus that is not
required to be filed by the Company pursuant to Rule 433 or one or
more free writing prospectuses through customary Bloomberg
distribution that do not contain substantive changes from or
additions to the information contained in Schedule II hereto; any
such free writing prospectus (which shall include the pricing term
sheet discussed in Section 3(b) hereof), the use of which has been
consented to by the Company and the Representatives, is listed on
Schedule III and herein called a “Permitted Free Writing
Prospectus.”
(b) The
Company agrees to prepare a pricing term sheet, substantially in
the form of Schedule II hereto and approved by the Representatives,
and to file such pricing term sheet pursuant to Rule 433(d) under
the 1933 Act within the time period prescribed by such
Rule.
(c) The
Company and the Representatives 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.
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(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 1933 Act with respect to the
Registration Statement, or the institution of any proceedings for
that purpose or pursuant to Section 8A of the 1933 Act against the
Company or related to the offering, of which the Company shall have
received notice, and will use its best efforts to prevent the
issuance of any such stop order and to secure the prompt removal
thereof, if issued. The Company will deliver to the Representatives
sufficient conformed copies of the Registration Statement, the
Basic Prospectus, the Pricing Prospectus and the Final Supplemented
Prospectus and of all supplements and amendments thereto (in each
case without exhibits) for distribution to the Underwriters and,
from time to time, as many copies of the Basic Prospectus, the
Pricing Prospectus and the Final Supplemented Prospectus as the
Underwriters may reasonably request for the purposes contemplated
by the 1933 Act or the 1934 Act.
(b) The
Company will furnish the Underwriters with written or electronic
copies of each amendment and supplement to the Final Supplemented
Prospectus relating to the offering of the Senior Notes in such
quantities as the
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Underwriters may from time to time
reasonably request. If, during the period (not exceeding nine
months) when the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the 1933 Act) shall be
required by law in connection with the sale of any Senior Notes by
an Underwriter, any event relating to or affecting the Company, or
of which the Company shall be advised in writing by the
Representatives, shall occur, which in the opinion of the Company
or of Underwriters’ counsel should be set forth in a
supplement to or an amendment of the Final Supplemented Prospectus,
as the case may be, in order to make the Final Supplemented
Prospectus not misleading in the light of the circumstances when it
(or in lieu thereof, the notice referred to in Rule 173(a) under
the 1933 Act) is delivered, or if for any other reason it shall be
necessary during such period to amend or supplement the Final
Supplemented Prospectus or to file under the 1934 Act any document
incorporated by reference in the Final Supplemented Prospectus in
order to comply with the 1933 Act or the 1934 Act, the Company
forthwith will (i) notify the Underwriters to suspend solicitation
of purchases of the Senior Notes and (ii) at its expense, make any
such filing or prepare and furnish to the Underwriters a reasonable
number of copies of a supplement or supplements or an amendment or
amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances when the Final Supplemented Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the 1933 Act)
is delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to
deliver a prospectus in connection with the sale of any Senior
Notes after the expiration of the period specified in the preceding
sentence, the Company, upon the request of such Underwriter, will
furnish to such Underwriter, at the expense of such Underwriter, a
reasonable quantity of a supplemented or amended prospectus, or
supplements or amendments to the Final Supplemented Prospectus,
complying with Section 10(a) of the 1933 Act. During the period
specified in the second sentence of this subsection, the Company
will continue to prepare and file with the Commission on a timely
basis all documents or amendments required under the 1934 Act and
the rules and regulations thereunder; provided , that the
Company shall not file such documents or amendments without also
furnishing copies thereof prior to such filing to the
Representatives and Dewey 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 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
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covered thereby, an earnings
statement of the Company (in form complying with the provisions of
Rule 158 of the rules and regulations under the 1933 Act) covering
a twelve-month period beginning not later than the first day of the
Company’s fiscal quarter next following the “effective
date” (as defined in Rule 158) of the Registration
Statement.
(e) As
soon as practicable after the date of this Agreement, and in any
event within the time prescribed by Rule 424 under the 1933 Act,
the Company will file the Final Supplemented Prospectus, in a form
approved by the Representatives, such approval not to be
unreasonably withheld, with the Commission and will advise the
Representatives of such filing and will confirm such advice in
writing. Furthermore, the Company will make any other required
filings pursuant to Rule 433(d)(1) of the 1933 Act within the time
required by such Rule.
(f) During a period
of 15 days from the date of this Agreement, the Company will not,
without the Representatives’ prior written consent, directly
or indirectly, sell, offer to sell, grant any option for the sale
of, or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior
Notes (except for the Senior Notes issued pursuant to this
Agreement). The Representatives agree that commercial paper or
other debt securities with scheduled maturities of less than one
year are not subject to this Section 4(f).
SECTION 5.
PAYMENT OF EXPENSES . The Company will pay all expenses
incidental to the performance of its obligations under this
Agreement, including, but not limited to, the expenses of (i) the
printing and filing of the Registration Statement as originally
filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the 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.
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SECTION 6.
CONDITIONS OF UNDERWRITERS’ OBLIGATIONS . The
obligations of the Underwriters to purchase and pay for the Senior
Notes are subject to the following conditions:
(a) No
stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings
for that purpose or pursuant to Section 8A of the 1933 Act against
the Company or related to the offering shall be pending before, or
to the knowledge of the Company threatened by, the Commission on
such date. If filing of the Pricing Prospectus or the Final
Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Pricing Prospectus and the Final
Supplemented Prospectus, and any such supplement, as applicable,
shall have been filed in the manner and within the time period
required by Rule 424. The pricing term sheet contemplated by
Section 3(b) hereto, and any other material required to be filed by
the Company pursuant to Rule 433(d) under the 1933 Act, shall have
been filed by the Company with the Commission within the applicable
time periods prescribed for such filings by Rule 433.
(b) Any
required orders of the Alabama 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).
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(c)
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On the Closing Date the Representatives shall
have received:
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(1) The
opinion, dated the Closing Date, of Balch & Bingham LLP,
general 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 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.
11
NY1 1072439v7
(d) At
the Closing Date, there shall not have been, since the date hereof
or since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus,
any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, and the Representatives shall have
received a certificate of the President or any Vice President of
the Company, and dated as of the Closing Date, to the effect that
(i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at
and as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed
or satisfied on or prior to the Closing Date and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose or pursuant to Section
8A of the 1933 Act against the Company or related to the offering
have been initiated or, to the knowledge of the Company, threatened
by the Commission.
(e) The
Representatives shall have received on the date hereof and shall
receive on the Closing Date from Deloitte & Touche LLP, a
letter or letters addressed to the Representatives (which may refer
to letters previously delivered to the Representatives) dated the
respective dates of delivery thereof to the effect that: (A) they
are an independent registered public accounting firm with respect
to the Company within the meaning of the 1933 Act and the rules and
regulations under the 1933 Act; (B) in their opinion, the financial
statements audited by them and incorporated by reference in the
Registration Statement and the Pricing Prospectus or the
Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, comply as to form in all
material respects with the applicable accounting requirements of
the 1934 Act and the rules and regulations under the 1934 Act; and
(C) on the basis of certain limited procedures performed through a
specified date not more than three business days prior to the date
of such letter, namely (i) reading the minute books of the Company;
(ii) performing the procedures specified by the standards of the
Public Company Accounting Oversight Board (United States) (“
PCAOB ”) for a review of interim financial statement
information as described in Statement on Auditing Standards No.
100, “Interim Financial Information”, on the unaudited
financial statements, if any, of the Company incorporated by
reference in the Registration Statement and the Pricing Prospectus
or the Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable, and on the latest available
unaudited financial statements of the Company, if any, for any
calendar quarter subsequent to the date of those incorporated by
reference in the Registration Statement and the Pricing Prospectus
or the Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus, as applicable; and (iii) making inquiries
of certain officials of the Company who have responsibility for
financial and accounting matters regarding such unaudited financial
statements or any specified unaudited amounts derived therefrom (it
being understood that the foregoing procedures do not constitute an
audit performed in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP make no
representations
12
NY1 1072439v7
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 1934 Act as it applies to Form 10-Q and the
related published rules and regulations thereunder; (3) the
unaudited amounts for Operating Revenues, Earnings Before Income
Taxes and Net Income After Dividends on Preferred Stock and the
unaudited Ratio of Earnings to Fixed Charges set forth in the
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 inc
