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Exhibit 1.4
$450,000,000
Series 2007B 5.70% Senior Notes
due June 1, 2017
GEORGIA POWER COMPANY
UNDERWRITING AGREEMENT
June 4, 2007
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
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as Representatives of the Several Underwriters named
on Schedule I hereto
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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 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 $450,000,000 aggregate
principal amount of the Series 2007B 5.70% Senior Notes due June 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 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-ninth supplemental indenture,
dated as of June 12, 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:
(a) A registration statement on Form S-3 (File
No. 333-140954) 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,
became effective upon filing with 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 June 4, 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
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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 4:45 p.m. (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 2007B 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
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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 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 2007B 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, (i) the Registration Statement is an “automatic
shelf registration statement” (as defined in Rule 405 under
the 1933 Act), (ii) the Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act
objecting to the use of the automatic shelf registration statement
and (iii) the conditions for use of Form S-3, as set forth in the
General Instructions thereof, have been satisfied.
(f) (A) At the time of filing of the
Registration Statement, (B) at the time of the most recent
amendment to the Registration Statement for the purposes of
complying with Section 10(a)(3) of the 1933 Act (whether such
amendment was
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by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the 1934 Act or form of
prospectus) and (C) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule
163(c) under the 1933 Act) made any offer relating to the Senior
Notes in reliance on the exemption of Rule 163 under the 1933 Act,
the Company was a “well-known seasoned issuer” (as
defined in Rule 405 under the 1933 Act).
(g) 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.
(h) 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.
(i) 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.
(j) This Agreement has been duly authorized,
executed and delivered by the Company.
(k) 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.
(l) 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,
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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.
(m) The execution, delivery and performance by
the Company of this Agreement, the Indenture and the Senior Notes
and the consummation by the Company of the transactions
contemplated herein and therein and compliance by the Company with
its obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the
charter or bylaws of the Company, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company under (A) any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to
which the Company is a party or by which it may be bound or to
which any of its properties may be subject (except for conflicts,
breaches or defaults which would not, individually or in the
aggregate, be materially adverse to the Company or materially
adverse to the transactions contemplated by this Agreement), or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, or any regulatory body or administrative
agency or other governmental body having jurisdiction over the
Company, or any of its properties.
(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 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.
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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 99.134% 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 June 12, 2007 (unless
postponed in accordance with the provisions of Section 11) or such
other time, place or date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and
delivery being herein called the “Closing Date”).
Payment shall be made to the Company by wire transfer in federal
funds at the Closing Date against delivery of the Senior Notes to
the Representatives on behalf of all of the Underwriters. It is
understood that each Underwriter has authorized the
Representatives, 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 Representatives, individually and not as a representative of
the Underwriters, may (but shall not be obligated to) make payment
of the principal amount of the Senior Notes to be purchased by any
Underwriter whose payment has not been received by the Closing
Date, but such payment shall not relieve such Underwriter from its
obligations hereunder.
The delivery of the Senior Notes shall be made in
fully registered form, registered in the name of CEDE & CO., to
the offices of The Depository Trust Company in New York, New York
or its designee, and the Underwriters shall accept such
delivery.
The certificate(s) for the Senior Notes will be made
available for examination by the Representatives not later than
12:00 Noon, New York time, on the last business day prior to the
Closing Date.
SECTION 3. FREE
WRITING PROSPECTUSES .
(a) The Company represents and agrees that,
without the prior consent of the Representatives, it has not made
and will not make any offer relating to the Senior Notes that would
constitute a “free writing prospectus” as defined in
Rule 405 under the 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
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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.
(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
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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 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
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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 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 and the proposed issuance of the Company’s Series
2007C Senior Notes due 2047 in June 2007). 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).
(g) If at any time when Senior Notes remain
unsold by the Underwriters, the Company receives from the
Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act or
otherwise ceases to be eligible to use the automatic
shelf
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registration statement form, the Company will (i)
promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper
form relating to the Senior Notes, in a form satisfactory to the
Representatives, (iii) use its reasonable best efforts to cause
such registration statement or post-effective amendment to be
declared effective and (iv) promptly notify the Representatives of
such effectiveness. The Company will take all other reasonable
action necessary or appropriate to permit the public offering and
sale of the Senior Notes to continue as contemplated in the
registration statement that was the subject of the Rule 401(g)(2)
notice or for which the Company has otherwise become ineligible.
References herein to the Registration Statement shall include such
new registration statement or post-effective amendment, as the case
may be.
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
11
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
tim
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