Exhibit 1.3(a)
$125,000,000
Series 2009A Floating Rate Senior
Notes
due June 28, 2010
GULF POWER COMPANY
UNDERWRITING AGREEMENT
June 22, 2009
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Gulf Power Company, a Florida
corporation (the “Company”), confirms its agreement
(the “Agreement”) with you (the
“Underwriter”) with respect to the sale by the Company
and the purchase by the Underwriter, of $125,000,000 aggregate
principal amount of the Series 2009A Floating Rate Senior Notes due
June 28, 2010 (the “Senior Notes”).
The Company understands that the
Underwriter proposes to make a public offering of the Senior Notes
pursuant to this Agreement. The Senior Notes will be issued
pursuant to a Senior Note Indenture, dated as of January 1, 1998
(the “Base Indenture”), between the Company and The
Bank of New York Mellon (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 fifteenth
supplemental indenture, dated as of June 26, 2009, 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.
Pursuant to a Calculation Agent
Agreement, dated as of June 15, 2009 (the “Calculation Agent
Agreement”) between the Company and The Bank of New York
Mellon, as calculation agent thereunder (the “Calculation
Agent”), the Company has engaged the Calculation Agent to
perform certain services with respect to the floating interest rate
on the Senior Notes.
SECTION 1. REPRESENTATIONS
AND WARRANTIES . The Company represents and warrants to the
Underwriter as follows:
(a) A registration statement
on Form S-3 (File No. 333-149664) 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 Underwriter, 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 Underwriter 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 Underwriter 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 22, 2009 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
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 4:39 p.m. (New York Time) on the
date of this Agreement; the documents listed in Schedule II, 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 Underwriter with respect to: (A) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter 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 2009A 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 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 the Underwriter
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 2009A Senior Notes -
Book-Entry Only Issuance - The Depository Trust
Company.”
(d) Each Permitted Free
Writing Prospectus listed on Schedule II 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 Underwriter 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 Underwriter 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.
(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 Underwriter.
(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 Calculation Agent
Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery of
the Calculation Agent Agreement by the Calculation Agent, the
Calculation Agent Agreement constitutes 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 the Enforceability Exceptions.
(m) The execution, delivery
and performance by the Company of this Agreement, the Calculation
Agent 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 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.
(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 incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Final
Supplemented Prospectus may be subject to normal year-end
adjustments) throughout the periods involved and necessarily
include amounts that are based on the best estimates and judgments
of management. The selected financial data and the summary
financial information included in the Pricing Prospectus and the
Final Supplemented Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of
the audited and unaudited financial statements incorporated by
reference in the Registration Statement.
SECTION 2. SALE AND
DELIVERY TO THE UNDERWRITER; 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 the Underwriter and the Underwriter agrees to purchase from the
Company, the Senior Notes at a price equal to 99.80% 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 Troutman Sanders LLP, 30 Ivan Allen Jr.
Blvd, NW, Suite 950, Atlanta, Georgia 30308, at 10:00 A.M., New
York time, on June 26, 2009 or such other time, place or date as
shall be agreed upon by the Underwriter 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 Underwriter. It is understood
that the Underwriter will accept delivery of, receipt for, and make
payment of, the principal amount of the Senior Notes which it has
agreed to purchase.
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 Underwriter shall
accept such delivery.
The certificate(s) for the Senior
Notes will be made available for examination by the Underwriter 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 Underwriter, 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; the Underwriter represents and agrees that,
without the prior consent of the Company, 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 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 I 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 Underwriter, is listed on Schedule II and herein
called a “Permitted Free Writing
Prospectus.”
(b) The Company agrees to
prepare a pricing term sheet, substantially in the form of Schedule
I hereto and approved by the Underwriter, 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
Underwriter 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 Underwriter and, if requested by the
Underwriter, will prepare and furnish without charge to the
Underwriter a free writing prospectus or other document, the use of
which has been consented to by the Underwriter, 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 the Underwriter, expressly for use therein.
(e) The Company agrees that if
there occurs an event or development as a result of which the
Pricing Disclosure Package would include an untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in light of the circumstances then
prevailing, not misleading, the Company will notify the Underwriter
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 Underwriter as
follows:
(a) The Company, on or prior
to the Closing Date, will deliver to the Underwriter 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
Underwriter 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 Underwriter 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) and, from time to time, as
many copies of the Basic Prospectus, the Pricing Prospectus and the
Final Supplemented Prospectus as the Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish
the Underwriter 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 Underwriter
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 the Underwriter, any event relating to or
affecting the Company, or of which the Company shall be advised in
writing by the Underwriter, shall occur, which in the opinion of
the Company or of Underwriter’s 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 Underwriter to
suspend solicitation of purchases of the Senior Notes and (ii) at
its expense, make any such filing or prepare and furnish to the
Underwriter 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 the 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 the
Underwriter, will furnish to the Underwriter, at the expense of the
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 Underwriter
and Dewey & LeBoeuf LLP.
(c) The Company will endeavor,
in cooperation with the Underwriter, 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
Underwriter 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
Underwriter, such approval not to be unreasonably withheld, with
the Commission and will advise the Underwriter 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
Underwriter’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
Underwriter 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
& LeBoeuf LLP, counsel for the Underwriter, 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 Underwriter 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 Underwriter of copies of any
blue sky survey, (vii) the fee of the Financial Industry Regulatory
Authority, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and
expenses of the Trustee and Calculation Agent, including the fees
and disbursements of counsel for the Trustee and Calculation Agent
in connection with the Indenture, the Calculation Agent Agreement
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 Underwriter 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
& LeBoeuf LLP.
SECTION 6. CONDITIONS OF
UNDERWRITER’S OBLIGATIONS . The obligations of the
Underwriter 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
Florida Commission and the Commission permitting the transactions
contemplated hereby substantially in accordance with the terms and
conditions hereof shall be in full force and effect and shall
contain no provision unacceptable to the Underwriter or the Company
(but all provisions of such order or orders heretofore entered,
copies of which shall be delivered to the Underwriter prior to the
Closing Date, are deemed acceptable to the Underwriter and the
Company and all provisions of such order or orders hereafter
entered shall be deemed acceptable to the Underwriter 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
Underwriter shall have received:
(1) The opinion, dated the
Closing Date, of Beggs & Lane, a Registered Limited Liability
Partnership, general counsel for the Company, substantially in the
form attached hereto as Schedule III.
(2) The opinion, dated the
Closing Date, of Troutman Sanders LLP, counsel for the Company,
substantially in the form attached hereto as Schedule
IV.
(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 & LeBoeuf LLP, counsel for the
Underwriter, 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 Underwriter 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 Underwriter 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 Underwriter (which may refer to letters previously delivered to
the Underwriter) 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; (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 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
Underwriter’s 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 and Preference Stock and the unaudited
Ratio of Earnings to Fixed Charges set forth in the Registration
Statement and the Pricing Prospectus or the Registration Statement,
the Pricing Prospectus and the Final Supplemented Prospectus, as
applicable, do not agree with the amounts set forth in or derived
from the unaudited financial statements for the same period
included or incorpo
