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Exhibit 1.4
$85,000,000 Series 2007A 5.90% Senior Notes due June
15, 2017
GULF POWER COMPANY
UNDERWRITING AGREEMENT
June 5, 2007
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
As Representative of the Underwriters named on
Schedule I hereto
Ladies and Gentlemen:
Gulf Power Company, a Florida corporation (the
“Company”), confirms its agreement (the
“Agreement”) with you and Morgan Keegan & Company,
Inc. (collectively, the “Underwriters,” which term
shall also include any underwriter substituted as hereinafter
provided in Section 11 hereof), for whom you are acting as
representative (in such capacity you shall hereinafter be referred
to as the “Representative”), with respect to the sale
by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $85,000,000 aggregate principal
amount of the Series 2007A 5.90% Senior Notes due June 15, 2017
(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 fourteenth 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
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 June 5, 2007 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 Prospectus shall be deemed to
refer to and include any documents
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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 3:30 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 any
Underwriter through the Representative 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 Securities Act, the Exchange Act, the 1939 Act (hereinafter
defined) and the
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General Rules and Regulations of the Commission
thereunder and the Registration Statement, the Pricing Disclosure
Package and the Final Supplemented Prospectus do not and will not,
(i) as of the Effective Date as to the Registration Statement and
any amendment thereto, (ii) as of the Applicable Time as to the
Pricing Disclosure Package and (iii) as of the date of the Final
Supplemented Prospectus as to the Final Supplemented Prospectus or
as of the date when any supplement is filed as to the Final
Supplemented Prospectus as further supplemented, contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in
the case of the Registration Statement and any amendment thereto,
and, in the light of the circumstances under which they were made,
not misleading in the case of the Pricing Disclosure Package and
the Final Supplemented Prospectus as further supplemented; except
that the Company makes no warranties or representations with
respect to (A) that part of the Registration Statement which shall
constitute the Statements of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the “1939 Act”), (B)
statements or omissions made in a Permitted Free Writing
Prospectus, the Registration Statement, the Pricing Prospectus or
the Final Supplemented Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by
any Underwriter through the Representative 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 Representative expressly for use
therein.
(e) With respect to the Registration
Statement, the conditions for use of Form S-3, as set forth in the
General Instructions thereof, have been satisfied.
(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
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therein, there has been no material adverse change
in the business, properties or financial condition of the Company,
whether or not arising in the ordinary course of
business.
(h) The Company is a corporation duly
organized and existing under the laws of the State of 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
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will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company under (A)
any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company is a party or by
which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would
not, individually or in the aggregate, be materially adverse to the
Company or materially adverse to the transactions contemplated by
this Agreement), or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, or any
regulatory body or administrative agency or other governmental body
having jurisdiction over the Company, or any of its
properties.
(m) 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
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to purchase pursuant to the provisions of Section 11
hereof), at a price equal to 99.304% of the principal amount
thereof.
(b) Payment for 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 or such other
time, place or date as shall be agreed upon by the Representative
and the Company (such time and date of payment and delivery being
herein called the “Closing Date”). Payment shall be
made to the Company by wire transfer in federal funds at the
Closing Date against delivery of the Senior Notes to the
Representative. It is understood that each Underwriter has
authorized the Representative, for each Underwriter’s
account, to accept delivery of, receipt for, and make payment of,
the principal amount of the Senior Notes which each Underwriter has
agreed to purchase. 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 Representative not later than
12:00 Noon, New York time, on the last business day prior to the
Closing Date.
SECTION 3. FREE
WRITING PROSPECTUSES.
(a) The Company represents and agrees that,
without the prior consent of the Representative, it has not made
and will not make any offer relating to the Senior Notes that would
constitute a “free writing prospectus” as defined in
Rule 405 under the 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 Representative, it has not made and will not make
any offer relating to the Senior Notes that would constitute a
“free writing prospectus” as defined in Rule 405 under
the 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 Representative, is listed on Schedule III and herein called
a “Permitted Free Writing Prospectus.”
(b) The Company agrees to prepare a pricing
term sheet, substantially in the form of Schedule II hereto and
approved by the Representative, and to file such pricing term sheet
pursuant to Rule 433(d) under the Securities Act within the time
period prescribed by such Rule.
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(c) The Company and the Representative 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
Representative and, if requested by the Representative, will
prepare and furnish without charge to each Underwriter a free
writing prospectus or other document, the use of which has been
consented to by the Representative, which will correct such
conflict, statement or omission; provided, however, that this
representation and warranty shall not apply to any statements or
omissions in a Permitted Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter, through the Representative, expressly
for use therein.
(e) The Company agrees that if there occurs an
event or development as a result of which the Pricing Disclosure
Package would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances then prevailing,
not misleading, the Company will notify the Representative so that
any use of the Pricing Disclosure Package may cease until it is
amended or supplemented.
SECTION 4. COVENANTS
OF THE COMPANY . The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing
Date, will deliver to the Underwriters conformed copies of the
Registration Statement as originally filed and of all amendments
thereto, heretofore or hereafter made, including any post-effective
amendment (in each case including all exhibits filed therewith, and
including unsigned copies of each consent and certificate included
therein or filed as an exhibit thereto, except exhibits
incorporated by reference, unless specifically requested). As soon
as the Company is advised thereof, it will advise the
Representative orally of the issuance of any stop order under the
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 Representative sufficient conformed
copies of the Registration Statement, the Basic Prospectus, the
Pricing Prospectus and the Final Supplemented Prospectus and of all
supplements and amendments thereto (in each case without exhibits)
for
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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 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 Representative, 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 Representative and Dewey
Ballantine LLP.
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(c) The Company will endeavor, in cooperation
with the Underwriters, to qualify the Senior Notes for offering and
sale under the applicable securities laws of such states and the
other jurisdictions of the United States as the Representative may
designate provided , however ,
that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or
to file a consent to service of process or to file annual reports
or to comply with any other requirements in connection with such
qualification deemed by the Company to be unduly
burdensome.
(d) The Company will make generally available
to its security holders as soon as practicable but not later than
45 days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions of
Rule 158 of the rules and regulations under the 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, the Company will file the Final
Supplemented Prospectus, in a form approved by the Representative,
such approval not to be unreasonably withheld, with the Commission
and will advise the Representative of such filing and will confirm
such advice in writing. Furthermore, the Company will make any
other required filings pursuant to Rule 433(d)(1) of the 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
Representative’s prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any Senior Notes or any security
convertible into or exchangeable into or exercisable for the Senior
Notes or any debt securities substantially similar to the Senior
Notes (except for the Senior Notes issued pursuant to this
Agreement). The Representative agrees that commercial paper or
other debt securities with scheduled maturities of less than one
year are not subject to this Section 4(f).
SECTION 5. PAYMENT OF
EXPENSES . The Company will pay all
expenses incidental to the performance of its obligations under
this Agreement, including but not limited to, the expenses of (i)
the printing and filing of the Registration Statement as originally
filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificate(s) for the Senior Notes, (iii) the
fees and disbursements of the Company's counsel and accountants,
(iv) the qualification of the Senior Notes under securities laws in
accordance with the provisions of Section 4(c) hereof, including
filing fees and the reasonable fees and disbursements of Dewey
Ballantine LLP, counsel for the Underwriters in connection
therewith and in connection with the preparation of any blue sky
survey (such fees and disbursements of counsel shall not exceed
$3,500), (v) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of
each amendment thereto and of the Pricing Prospectus,
any
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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 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 Representative 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 Representative
shall have received:
11
(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.
(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
Representative shall have received a certificate of the President
or any Vice President of the Company, and dated as of the Closing
Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section
1 hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Date, (iii) the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied on or prior to
the Closing Date and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose or pursuant to Section 8A of the
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 Representative 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
Representative (which may refer to letters previously delivered to
the Representative) 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) for a review of interim
financial statement information as described in Statement on
Auditing
12
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
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
de
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