CONSOLIDATED EDISON, INC.
UNDERWRITING AGREEMENT BASIC PROVISIONS
April 5, 2004
Consolidated Edison, Inc. (the "Company") may from time to time enter
into one or more underwriting agreements that provide for the sale of certain of
its securities. The basic provisions set forth herein may be incorporated by
reference in any such underwriting agreement relating to a particular issue of
securities designated therein (as so designated "Designated Securities") (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein referred to as "this Agreement."
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as defined therein.
The terms and rights of any particular issue of Designated Securities
shall be as specified in the Underwriting Agreement relating thereto and (i) if
the Designated Securities are equity securities, in or pursuant to the
provisions of the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), or (ii) if the Designated Securities are debt
securities, in or pursuant to the indenture (the "Indenture") identified in the
Underwriting Agreement. An Underwriting Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted.
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Designated
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); the registration statement has been declared effective by the
Commission; and no stop order suspending the effectiveness of the registration
statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission. The Company proposes to file pursuant to Rule
424 under the Securities Act of 1933 (the "Act") a prospectus supplement
specifically relating to the Designated Securities and has previously advised
the Underwriters of all information to be set forth therein. The term
"Registration Statement" means the registration statement as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the prospectus supplement specifically relating to the Designated
Securities, as first filed with the Commission pursuant to Rule 424. The term
"Preliminary Prospectus" means a preliminary prospectus supplement specifically
relating to the Designated Securities together with the Basic Prospectus. As
used herein, the terms "Registration Statement", "Basic Prospectus",
"Prospectus" and "Preliminary Prospectus" shall include in each case the
material, if any, incorporated by reference therein.
(b) The documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission thereunder, and
none of the 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 not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when said further documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder and 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 not misleading.
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Act and, if the Designated Securities are debt securities,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission under the Act and, if applicable, the
Trust Indenture Act; and the Registration Statement and the Prospectus do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto, and the Prospectus, as
it may be amended or supplemented pursuant to Section 4 hereof, as of the Time
of Delivery (as defined in Section 3) 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 not misleading; provided, however, that
this representation and warranty shall not apply to: (i) any statements or
omissions made in reliance upon and in conformity with any information specified
in the Underwriting Agreement as furnished by or on behalf of the Underwriters
for use in the Prospectus for the Designated Securities ("Underwriter
Information"), and, if the Designated Securities are debt securities, (ii) any
Form T-1 Statement of Eligibility and Qualification included as an exhibit to
the Registration Statement.
(d) Except as set forth or contemplated in the Prospectus, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse change, on
a consolidated basis, in the capital stock, short-term debt or long-term debt of
the Company, or in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) The Company has been duly formed and is validly existing and
in good standing under the laws of the State of New York. The Company has full
power and authority to conduct its business and, except as described in the
Registration Statement and Prospectus, possesses all material licenses and
approvals necessary for the conduct of its business.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and except as set forth or contemplated in the Prospectus, there
are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of any kind
relating to the issuance of any capital stock of the Company, any such
convertible or exchangeable securities or any such rights, warrants or options.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles, and except as rights of indemnification and
contribution hereunder may be limited by law or principles of public policy.
(h) If the Designated Securities are debt securities, the
Indenture has been duly authorized by the Company and qualified under the Trust
Indenture Act and, at the Time of Delivery (as defined in Section 3 hereof),
will constitute a valid and legally binding instrument, enforceable in
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accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or effecting
creditors' rights and to general equity principles.
(i) If the Designated Securities are debt securities, the
Designated Securities have been duly authorized, and when executed by the
Company, authenticated in accordance with the Indenture and issued and delivered
pursuant to this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles. The
Designated Securities and the Indenture conform to the descriptions thereof in
the Prospectus.
(j) If the Designated Securities are equity securities, the
Designated Securities have been duly authorized, and, when delivered to and paid
for by the Underwriters in accordance with the terms of this Agreement, will
have been duly issued and will be fully paid and non-assessable and will conform
to the descriptions thereof in the Prospectus.
(k) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture (if applicable), and this Agreement and the
consummation of the transaction herein and therein contemplated, will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any statute, any agreement or instrument to which
the Company is a party or by which it is bound or to which any of the property
of the Company is subject, the Certificate of Incorporation or the Company's
by-laws, or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties. No consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Company of the other
transactions contemplated by this Agreement or the Indenture (if applicable)
except such as have been, or will have been prior to the Time of Delivery,
obtained under the Act, and the Trust Indenture Act (if applicable) and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters.
(l) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party, or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(m) The consolidated financial statements of the Company and its
subsidiaries set forth in the Registration and Prospectus fairly present the
financial condition of the Company and its subsidiaries as of the dates
indicated and the results of operations and changes in cash flows for the
periods therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein).
(n) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 0000 Xxx) (each, a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly
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qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not result in a Material
Adverse Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and is validly issued, fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
None of the outstanding shares of capital stock of any Subsidiary was issued in
violation of preemptive or other similar rights of any securityholder of such
Subsidiary.
2. Upon the execution of the Underwriting Agreement applicable to any
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus.
3. If (i ) the Designated Securities are debt securities, one or more
Global Securities (as defined in the Indenture specified in the Underwriting
Agreement) for the Designated Securities in the aggregate principal amount of
the Designated Securities shall be registered in the name of Cede & Co. and
delivered to The Depository Trust Company with instructions to credit the
Designated Securities to the account of, or as otherwise instructed by, the
Representative, or (ii) the Designated Securities are equity securities, the
Designated Securities to be purchased by each Underwriter pursuant to the
Underwriting Agreement, in such authorized number of shares and registered in
such names as the Representative may request upon at least 48 hours' prior
notice to the Company shall be delivered by or on behalf of the Company to or as
directed by the Representative for the account of such Underwriter, against
payment of the purchase price therefore in the amount, the funds and manner
specified in the Underwriting Agreement, at the place, time and date specified
in the Underwriting Agreement or at such other place, time and date as the
Representative and the Company may agree in writing, said time and date being
herein referred to as the "Time of Delivery" for said Designated Securities.
4. The Company agrees with each of the Underwriters of the Designated
Securities:
(a) To prepare the Prospectus specifically relating to the
Designated Securities in a form approved by the Representative and to file the
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the date of this
Agreement; after the date of this Agreement and prior to the Time of Delivery
for the Designated Securities, to make no amendment or supplement to the
Registration Statement or Prospectus to which the Representative shall
reasonably object in writing promptly after reasonable notice thereof; to file
timely all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Designated Securities,
and during the same period to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed, or mailed for filing, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Designated Securities, of
the suspension of the qualification of the Designated Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending any such qualification, to use promptly the
Company's best efforts to obtain its withdrawal;
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(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with those laws so as to permit the
continuance of sales and dealings therein in those jurisdictions for as long as
may be necessary to complete the distribution of the Designated Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To deliver to the Representative three signed or certified
copies of the Registration Statement, and each amendment thereto, including
exhibits thereto and documents incorporated by reference therein, and to furnish
to the Underwriters copies of the Prospectus, and each amendment or supplement
thereto, in such quantities as the Representative may from time to time
reasonably request, and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Designated Securities and if at
that time any event shall have occurred as a result of which the Prospectus
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 the light of
the circumstances under which they were made when the Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during the
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Act or the Exchange Act, to notify the Representative and upon its
request to file the document and to prepare and furnish without charge to the
Underwriters and to any dealer in securities as many copies as the
Representative may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus that will correct the statement or omission or
effect compliance;
(d) To make generally available to the Company's securityholders
as soon as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(e) During the period beginning on the date of this Agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions for the Designated Securities, as notified to the Company by the
Representative, or (ii) the Time of Delivery for the Designated Securities, not
to directly or indirectly offer, sell, contract to sell, grant any option for
the sale of or otherwise dispose of any securities of the Company that are
substantially similar to the Designated Securities, without the prior written
consent of the Representative, other than securities issued (i) upon conversions
of the Company's outstanding securities in accordance with their terms, or (ii)
in connection with the Company's employee stock or dividend reinvestment plans.
(f) The Company will use the net proceeds received from the sale
of the Designated Securities in the manner specified in the Prospectus under
"Use of Proceeds".
5. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's accountants in connection with the
registration of the Designated Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any preliminary prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of typing, printing or producing this
Agreement, any Indenture, any Blue Sky and legal investment memoranda and any
other documents in connection with the offering, purchase, sale and delivery of
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the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 4(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and any legal investment
survey; (iv) any fees charged by securities rating services for rating the
Designated Securities; (v) the cost of preparing the Designated Securities; (vi)
all expenses in connection with the listing of the Designated Securities on any
stock exchange or with the National Association of Securities Dealers Automated
Quotation System; and (vii) all other costs and expenses incident to the
performance of the Company's obligations hereunder that are not otherwise
specifically provided for in this Section 5. It is understood, however, that,
except as provided in this Section 5, or in Section 7 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Designated Securities by
them, and any advertising expenses connected with any offers they may make.
6. The obligations of the Underwriters under this Agreement shall be
subject, in the discretion of the Underwriters, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery for the Designated Securities, true and
correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for filing
by the rules and regulations under the Act and in accordance with Section 4(a)
hereof; no stop order suspending the effectiveness of the Registration Statement
or any part thereof shall have been issued and no proceeding for that purpose
shall have been instituted or threatened by the Commission; and all requests for
additional information on the part of the Commission since the date on which the
Registration Statement became effective shall have been complied with to the
reasonable satisfaction of the Representative.
(b) Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, shall have
furnished to the Underwriters such opinion or opinions, dated the Time
of Delivery for the Designated Securities, with respect to the
Designated Securities, the Registration Statement, the Prospectus and
such other related matters as the Representative may reasonably
request.
(c) Legal counsel for the Company shall have furnished to the
Underwriters a written opinion, dated the Time of Delivery for the
Designated Securities, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Company has been duly formed and is validly existing and
in good standing under the laws of the State of New York and has full
power and authority to conduct its business and, except as described in
the Registration Statement or in the Prospectus as then amended or
supplemented, to the best of his knowledge possesses all material
licenses and approvals necessary for the conduct of its business;
(ii) The Company has authorized equity capitalization as set
forth, or incorporated by reference, in the Prospectus;
(iii)This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) If the Designated Securities are debt securities, the Indenture
has been duly authorized, executed and delivered by the Company and
qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable against the Company
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in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(v) If the Designated Securities are debt securities, the Designated
Securities have been duly authorized, executed, issued and delivered by
the Company, and assuming due authentication in accordance with the
Indenture, constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, subject as to enforcement to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(vi) If the Designated Securities are equity securities, the
Designated Securities have been duly authorized, and, when delivered to
and paid for by the Underwriters in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable and
will not be subject to preemptive or other similar rights of any
shareholder of the Company;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture (if applicable) and this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any statute, agreement
or instrument known to him to which the Company is a party or by
which it is bound or to which any of the property of the Company is
subject, the Certificate of Incorporation or the
Company's by-laws, or any order, rule or regulation known to him of
any court, governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any court, governmental agency or body is
required for the issue and sale by the Company of the Designated
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement or the Indenture (if applicable), except
such as have been obtained under the Act, the Trust Indenture Act (if
applicable) and such consents, approvals, authorizations, registrations
or qualifications, as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters;
(ix) The Registration Statement (exclusive of any Form T-1, as to
which he need express no opinion or belief) and the Prospectus (other
than the financial statements and related schedules therein, as to
which he need express no opinion or belief) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; and the documents incorporated by reference in
the Prospectus at the Time of Delivery (other than the financial
statements and related schedules therein, as to which he need express
no opinion or belief) when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations thereunder;
(x) He has no reason to believe that (A) the Registration Statement
as of the time it became effective 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 not misleading, or
(B) the Prospectus as of the date thereof contained, or as of the Time
of Delivery contains, an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances in which
they were made, not misleading; and
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(xi) The statements contained in the Prospectus as amended or
supplemented under the captions specified in the Underwriting
Agreement, insofar as said statements constitute a summary of the
documents referred to therein, are accurate and fairly present the
information required to be shown; to the best of his knowledge, there
are no legal or governmental proceedings pending, or contemplated by
governmental authorities, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, in any such case, are
required by the Act or the Exchange Act or the rules and regulations
thereunder to be described in the Prospectus or the documents
incorporated by reference therein that are not described as so
required; and he does not know of any contracts or documents of a
character required to be described in the Registration Statement or
Prospectus (or required to be filed under the Exchange Act if upon
filing they would be incorporated, in whole or in part, by reference
therein) or to be filed as exhibits to the Registration Statement that
are not described and filed as required;
(xii) The Company is exempt from the provisions of the Public
Utility Holding Company Act of 1935 except Section 9(a)(2)
thereof;
(xiii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise described in the Prospectus,
all of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and, to the best
of our knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of any
Subsidiary was issued in violation of preemptive or other similar rights of any
securityholder of such Subsidiary;
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials."
(d) At 10:00 a.m., New York City time, representatives of the
Underwriters shall have received at the Time of Delivery a letter from
PricewaterhouseCoopers LLP, dated the Time of Delivery, substantially in the
form theretofore supplied to and deemed satisfactory by the Representative;
(e) Since the respective dates as of which information is given in
the Prospectus there shall not have been any material adverse change in the
capital stock or long-term debt of the Company, or in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries (taken as a whole), other than as
set forth or contemplated in the Prospectus as of the date of this Agreement,
the effect of which in the judgment of the Representative makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(f) Subsequent to the date of this Agreement, (i) no downgrading
or withdrawal shall have occurred in the rating accorded any securities of the
Company or Consolidated Edison Company of New York, Inc. by Xxxxx'x Investors
Service Inc., Standard & Poor's Ratings Group or
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Fitch Investor Services, and (ii) neither Xxxxx'x Investors Service Inc.,
Standard & Poor's Rating Group nor Fitch Investor Services shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any securities of the Company or Consolidated Edison
Company of New York, Inc.;
(g) Subsequent to the date of this Agreement there shall not have
occurred any of the following: (i) a suspension or material limitation in
trading in securities generally or the Company's securities on the New York
Stock Exchange; (ii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; or (iii) the
declaration of a war directly involving the United States of America, or the
occurrence of any other national or international calamity, or the outbreak or
escalation of any conflict involving the armed forces of the United States of
America, if the effect of any such event specified in this Section 6(g) in the
judgment of the Representative makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus; and
(h) The Company shall have furnished or caused to be furnished to
the Representative at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representative as to the accuracy of the representations and warranties of the
Company herein at and as of the Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery, and as to the matters set forth in subsections (a) (the
statement that no stop order has been "threatened" by the Commission may be
qualified by the phrase "to the best of our knowledge," (e) and (f) (item (ii)
may be qualified by the phrase "to the best of our knowledge") of this Section
6.
(i) The Designated Securities shall have been approved for listing
on the stock exchanges, if any, specified in the Underwriting Agreement.
7. (a) The Company will indemnify each Underwriter and hold it harmless
against any losses, claims, damages or liabilities, joint or several, to which
any Underwriter may become subject, under the Act or otherwise, insofar as the
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue or allegedly untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending any
such action or claims, promptly as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or allegedly untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the Prospectus,
or any amendment or supplement thereto, in reliance upon and in conformity with
Underwriter Information.
(b) Each Underwriter will indemnify the Company and hold it
harmless against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as the losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or allegedly untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that said untrue statement
or allegedly untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the
9
Registration Statement, the Prospectus or any amendment or supplement thereto,
in reliance upon and in conformity with Underwriter Information; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) of this Section 7 of notice of the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under said subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may have to any indemnified party other than under said subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to the indemnified
party, and, after notice from the indemnifying party to the indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not
be liable to the indemnified party under said subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
the indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of its
counsel shall be at the expense of the indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
contrary, (ii) the indemnifying party has failed within a reasonable time to
retain counsel reasonably satisfactory to the indemnified party or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would, in the reasonable judgment of the indemnified
party, be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceeding, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
indemnified parties, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and control
persons of Underwriters entitled to indemnification under subsection (e) of this
Section 7 shall be designated in writing by the Representative and any such
separate firm for the Company, its Trustees (directors) and officers and control
persons, if any, of the Company shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent (which consent shall not be unreasonably
withheld).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold an indemnified party harmless under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of said losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which said loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to the amount paid or payable by the indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and Underwriters of the
Designated Securities on the other in connection with the statements or
omissions that resulted in said losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be
10
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or allegedly untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by the indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
said Underwriter has otherwise been required to pay by reason of said untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of the
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to the Designated
Securities and not joint. The foregoing provisions regarding
contribution shall apply except as otherwise required by applicable law.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and Trustee (director) of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
8. If, at the Time of Delivery, any one or more of the Underwriters
shall default in its obligation to purchase any of the Designated Securities,
and the aggregate principal amount or aggregate number of shares (as the case
may be) of the Designated Securities set forth opposite the name or names of the
defaulting Underwriter or Underwriters in Schedule I to the Underwriting
Agreement is not more than one-tenth of the aggregate principal amount or
aggregate number of shares (as the case may be) of the Designated Securities,
the other Underwriters shall be obligated severally in the proportions that the
principal amount or number of shares (as the case may be) of Designated
Securities set forth opposite their respective names in Schedule I to the
Underwriting Agreement bears to the aggregate principal amount or aggregate
number of shares (as the case may be) of Designated Securities set forth
opposite the names of all the non-defaulting Underwriters, or in such other
proportions as the Underwriters may agree, to purchase the Designated Securities
as to which the defaulting Underwriter or Underwriters so defaulted on that
date; provided that in no event shall the principal amount or number of shares
(as the case may be) of Designated Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 8 by
an amount in excess of one-ninth of the aggregate principal amount or aggregate
number of shares (as the case may be) of Designated Securities without the
written consent of that Underwriter. If any Underwriter or Underwriters shall
default in its or their obligation to purchase Designated Securities and the
aggregate principal amount or aggregate number of shares (as the case may be) of
11
Designated Securities set forth opposite the name or names of the defaulting
Underwriter or Underwriters in Schedule I to the Underwriting Agreement is more
than one-tenth of the aggregate principal amount or aggregate number of shares
(as the case may be) of Designated Securities, and arrangements satisfactory to
the Underwriters and the Company for the purchase of said Designated Securities
are not made within 36 hours after the default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except as provided in Sections 5 and 7 hereof. In any such case, either the
Underwriters or the Company shall have the right to postpone the Time of
Delivery, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
Section 8 shall not relieve any defaulting Underwriter from liability in respect
of any default of said Underwriter under this Agreement.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any control person of any Underwriter, or the Company, or
any officer or Trustee (director) or control person of the Company, and shall
survive delivery of and payment for the Designated Securities and any
termination of this Agreement.
10. If any condition specified in Section 6 of this Agreement shall not
have been fulfilled when and as required to be fulfilled thereunder, then this
Agreement may be terminated by the Representative upon notice to the Company.
11. If this Agreement shall be terminated pursuant to Section 8 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Designated Securities except as provided in Section 5 and Section
7 hereof; but, if for any other reason Designated Securities are not delivered
by or on behalf of the Company as provided herein, the Company will reimburse
the Underwriters for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Designated Securities.
Unless the cause for non-delivery shall be a matter within the reasonable
control of the Company, the Company shall be under no further liability to any
Underwriter with respect to the Designated Securities except as provided in this
Section and in Section 5 and Section 7 hereof.
12. In all dealings under this Agreement, the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by the Representative.
13. All statements, requests, notices and agreements under this
Agreement shall be in writing, or, if promptly confirmed in writing, by
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the Representative at the address specified for the
Representative in the Underwriting Agreement; and if to the Company shall be
sufficient in all respects if delivered or sent by registered mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 7 and 9 hereof, the officers and Directors of the Company and each
person, if any, who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall
12
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Designated Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
16. This Agreement shall be construed in accordance with the laws of
the State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.