Table of Contents
UNDERWRITING AGREEMENT ......................................................
SECTION 1. Representations And Warranties.............................
(a) Representations and Warranties by the Company...................
(1) Compliance with Registration
Requirements...................................
(2) Incorporated Documents...............................
(3) Independent Accountants..............................
(4) Financial Statements.................................
(5) No Material Adverse Change in Business...............
(6) Good Standing of the Company.........................
(7) Good Standing of Subsidiaries........................
(8) Capitalization.......................................
(9) Authorization of this Underwriting Agreement
and Terms Agreement............................
(10) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities...................
(11) Authorization of the Indentures......................
(12) Descriptions of the Underwritten
Securities and the Indentures..................
(13) Absence of Defaults and Conflicts....................
(14) Absence of Labor Dispute.............................
(15) Absence of Proceedings...............................
(16) Accuracy of Exhibits.................................
(17) Absence of Further Requirements......................
(18) Possession of Licenses and Permits...................
(19) Title to Property....................................
(20) Commodity Exchange Act...............................
(21) Investment Company Act...............................
(22) Environmental Laws...................................
(b) Officers' Certificates..........................................
SECTION 2. Sale And Delivery To Underwriters; Closing.................
(a) Underwritten Securities.........................................
(b) Option Underwritten Securities..................................
(c) Payment. .......................................................
(d) Denominations; Registration.....................................
SECTION 3. Covenants Of The Company...................................
(a) Compliance with Securities Regulations and Commission
Requests.......................................
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(b) Filing of Amendments............................................
(c) Delivery of Registration Statements.............................
(d) Delivery of Prospectuses........................................
(e) Continued Compliance with Securities Laws.......................
(f) Blue Sky Qualifications.........................................
(g) Earnings Statement..............................................
(h) Use of Proceeds.................................................
(i) Listing. .......................................................
(j) Restriction on Sale of Securities...............................
(k) Reporting Requirements..........................................
SECTION 4. Payment Of Expenses........................................
(a) Expenses .......................................................
(b) Termination of Agreement........................................
SECTION 5. Conditions Of Underwriters' Obligations....................
(a) Effectiveness of Registration Statement.........................
(b) Opinion of Counsel for Company..................................
(c) Opinion of Counsel for Underwriters.............................
(d) Officers' Certificate...........................................
(e) Accountant's Comfort Letter.....................................
(f) Bring-down Comfort Letter.......................................
(g) Ratings. .......................................................
(h) Approval of Listing.............................................
(i) No Objection....................................................
(j) Lock-up Agreements..............................................
(k) Over-Allotment Option...........................................
(l) Additional Documents............................................
(m) Termination of Terms Agreement..................................
SECTION 6. Indemnification............................................
(a) Indemnification of Underwriters.................................
(b) Untrue Statements...............................................
(c) Indemnification of Company, Directors and Officers..............
(d) Survival........................................................
(e) Actions against Parties; Notification...........................
SECTION 7. Contribution...............................................
SECTION 8. Representations, Warranties And Agreements
To Survive Delivery....................................
SECTION 9. Termination................................................
(a) Underwriting Agreement..........................................
(b) Terms Agreement.................................................
(c) Liabilities.....................................................
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SECTION 10. Default By One Or More Of The Underwriters....................
SECTION 11. Notices.......................................................
SECTION 12. Parties.......................................................
SECTION 13. Governing Law And Time........................................
SECTION 14. Effect Of Headings............................................
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Draft of March 31, 1998
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
UNDERWRITING AGREEMENT
[ ], 1998
[Underwriter]
Ladies and Gentlemen:
Public Service Enterprise Group Incorporated, a New Jersey corporation (the
"Company"), proposes to issue and sell up to [ ] aggregate initial public
offering price of its senior or subordinated debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of [ ],
1998 (the "Senior Indenture"), between the Company and [*], as trustee (the
"Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under an indenture, dated as of [ ], 1998 (the "Subordinated
Indenture", and collectively with the Senior Indenture, the "Indentures", and
each, an "Indenture"), between the Company and [*], as trustee (the
"Subordinated Trustee", and collectively with the Senior Trustee, the
"Trustees", and each, a "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions and any
other variable terms established by or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Senior Debt Securities and the
Subordinated Debt Securities, initially issuable by the Company.
Whenever the Company determines to make an offering of Securities through
[Underwriter]("[Underwriter]"), or through an underwriting syndicate managed by
[Underwriter], the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, [Underwriter] and such other underwriters, if any, selected
by [Underwriter] (the "Underwriters", which term shall include [Underwriter],
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than [Underwriter] acting as co-manager in connection with
such offering, the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Company
and [Underwriter], acting for itself and, if applicable, as representative of
any other Underwriters. Each offering of Underwritten Securities through
[Underwriter] as sole Underwriter or through an underwriting syndicate managed
by [Underwriter] will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-[*]) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and each Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the Company has filed
such post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
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further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this Underwriting
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to [Underwriter], as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
each Indenture has been duly qualified under the 1939 Act.
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At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not 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. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
[Underwriter] expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder, and did 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the [Underwriter] expressly for use therein;
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the 1933 Act and the Trust
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Indenture Act of 1939, as amended (the "TIA"), and the rules and
regulations of the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, 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 any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the [Underwriter] expressly for use therein.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did
not and will not include 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter (or
through any representative(s)) expressly for use therein.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries, or such other entity, as the case may
be, for the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of
5
the audited financial statements included in the Registration Statement and
the Prospectus.
(5) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the business, properties or financial condition
of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on the Company's common stock or preferred stock, in amounts per
share that are consistent with past practice or the applicable charter
document or supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of New Jersey, with due corporate authority to own and operate
its properties and to conduct its business as described in the Prospectus.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 0000 Xxx) and Public Service Electric and Gas Company
and Enterprise Diversified Holdings Incorporated (each, a "Subsidiary" and,
collectively, the "Subsidiaries"), if any, 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 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.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent
6
issuances thereof, if any, contemplated under this Underwriting Agreement,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock have
been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder of
the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(11) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is, or
Depositary Shares represented by Preferred Stock are, convertible into Debt
Securities, each applicable Indenture has been, or prior to the issuance of
the Debt Securities thereunder will have been, duly authorized, executed
and delivered by the Company and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization,
7
moratorium or other similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(12) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, as of each Representation Date,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its Amended and Restated Certificate of
Incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus (including the issuance
and sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption "Use
of Proceeds") and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its subsidiaries pursuant
to, any Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
8
(14) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(15) [Absence of Proceedings. Other than as set forth in or
contemplated by the Prospectus, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consolidated assets, properties or operations thereof or the consummation
of the transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement or any applicable Indenture, or
the performance by the Company of its obligations hereunder and thereunder.
The aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.]
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(17) [Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, except the
registration of the Securities under the 1933 Act, the qualification of the
Indentures under the TIA and such consents, approvals, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the issuance and sale, as the case may be, of the
securities and except such as have been already made, obtained or rendered,
as applicable.]
(18) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations
9
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(19) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus or (B) those which
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries. All of the leases
and subleases material to the business of the Company and its subsidiaries
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary of
the continued possession of the leased or subleased premises under any such
lease or sublease
(20) Commodity Exchange Act. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Debt Securities, such
Debt Securities, upon issuance, will be excluded or exempted under, or
beyond the purview of, the Commodity Exchange Act, as amended (the
"Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(21) Investment Company Act. The Company is not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
10
(22) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.]
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any dividends or distributions declared by the Company and
paid or payable on the
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Initial Underwritten Securities but not on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
[Underwriter] to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by [Underwriter], but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by [Underwriter] and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number or aggregate principal amount,
as the case may be, of Initial Underwritten Securities, subject to such
adjustments as [Underwriter] in its discretion shall make to eliminate any sales
or purchases of a fractional number or aggregate principal amount, as the case
may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of [Underwriter's
name and address], or at such other place as shall be agreed upon by
[Underwriter] and the Company, at 9:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by
[Underwriter] and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Xxxxx & Xxxx LLP, or at such other place as shall be agreed upon by
[Underwriter] and the Company, on the relevant Date of Delivery as specified in
the notice from [Underwriter] to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
[Underwriter] for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized [Underwriter], for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. [Underwriter],
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
12
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as [Underwriter] may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities will be made
available for examination and packaging by [Underwriter] in The City of New York
not later than 9:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
[Underwriter] and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, promptly to use
its best efforts to obtain its withdrawal.
(b) Filing of Amendments. The Company will give [Underwriter] notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish [Underwriter] with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which [Underwriter] or counsel for the Underwriters
shall reasonably disapprove.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to [Underwriter] and counsel for the Underwriters, in such quantities as
[Underwriter] may reasonably request, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to [Underwriter], without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The Registration Statement
13
and each amendment thereto furnished to the Underwriters will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement 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
or to amend or supplement the Prospectus in order that the Prospectus will not
include 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 light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as [Underwriter] may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will
14
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing of
the Underwritten Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of
[Underwriter], directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Underwriting
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustees, any
Depositary, and their respective counsel, (v) the qualification of the
Underwritten Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and
15
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) the
fees charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities, (x) all other costs and expenses incident to the
performance of obligations hereunder which are not otherwise specifically
provided for in this Section and (xi) the fees and expenses of any Underwriter
acting in the capacity of a "qualified independent underwriter" (as defined in
Section 2(l) of Schedule E of the bylaws of the NASD), if applicable.
[(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by [Underwriter] in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.]
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable
(or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely
upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, [Underwriter] shall
have received the favorable opinion, dated as of Closing Time, of
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each
16
of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, [Underwriter]
shall have received the favorable opinion, dated as of Closing Time,
of Xxxxx & Wood LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the matters set forth in (1), (2), (6),
(7) to (11), as applicable (it being understood that any opinion
required with respect to the Underwritten Securities, not being
subject to preemptive or other similar rights of the securityholders
of the Company shall be limited to such rights arising by operation of
law or under the charter or by-laws of the Company), (11), (13)
(solely as to the information in the Prospectus under "Description of
Debt Securities", or any caption purporting to describe any such
Securities), (19), (20), (23) and the penultimate paragraph of Exhibit
B hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to [Underwriter]. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and [Underwriter]
shall have received a certificate of the Chairman, the President or
any Vice President of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) are true and
correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted, are
pending or, to the best of such officer's knowledge, are threatened by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, [Underwriter] shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to [Underwriter], together with signed or reproduced
copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
17
(f) Bring-down Comfort Letter. At Closing Time, [Underwriter] shall have
received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except
that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, shall
have the ratings accorded by any "nationally recognized statistical
rating organization", as defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to
[Underwriter] a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to [Underwriter],
confirming that the Underwritten Securities have such ratings. Since
the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to
the Underwritten Securities or any of the Company's other securities
by any such rating organization, and no such rating organization shall
have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other
securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice
of issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
[Underwriter] shall have received, in form and substance satisfactory
to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed
therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all
or any portion of the Option Underwritten Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, [Underwriter] shall
have received:
(1) A certificate, dated such Date of Delivery, of the Chairman,
the President or any Vice President of the Company, confirming that
the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
18
(2) The favorable opinion of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx,
counsel for the Company, [together with the favorable opinion of [*],
special [*] counsel for the Company, each] in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) The favorable opinion of Xxxxx & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to [Underwriter] and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to [Underwriter] pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or
any of the Company's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and
substance to [Underwriter] and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after
the Closing Time, the obligations of the Underwriters to purchase the
Option Underwritten Securities on such Date of Delivery) may be
terminated by [Underwriter] by notice to the Company at any time at or
prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections
1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
19
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule
434 Information deemed to be a part thereof, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through the
Representatives expressly for use in the Registration Statement, such
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply (i) to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through [Underwriter] expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or (ii) to any preliminary prospectus to the extent that any
such loss, claim, damage or liability of such Underwriter results solely from
the fact that such Underwriter sold securities to a person to whom it is
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
1933 Act, if the Company has previously furnished to [Underwriter] on behalf of
the Underwriters, including such Underwriter, the copies thereof theretofore
requested by
20
[Underwriter], and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in a
preliminary prospectus that was corrected in the Prospectus.
(b) This indemnity agreement is subject to the condition that insofar as it
relates to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus but eliminated or remedied in a supplement or
amendment thereto, such indemnity agreement shall not inure to the benefit of
any Underwriter from and after the time such supplement or amendment shall have
been furnished unless the Prospectus is used as so supplemented or amended,
provided that such use shall not require delivery of documents incorporated by
reference. In no case shall the Company be liable under the indemnity agreement
set forth in Section 6(a) hereof with respect to any claim made against any
Underwriter or any such controlling person unless such party shall be notified
in writing of the nature of the claim promptly after the assertion thereof, but
failure to so notify such party shall not relieve it from any liability which it
may have otherwise than on account of said indemnity agreement. The Company
shall be entitled to participate at its own expense in the defense, or, if it so
elects, within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it so elects to
assume the defense shall be conducted by counsel chosen by it and approved by
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in any suit so brought, which approval shall not be unreasonably
withheld. In the event that the Company elects to assume the defense of any such
suit and retains such counsel, the Underwriter or Underwriters or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel thereafter retained by them. In the event
that the parties to any such action (including impleaded parties) include the
Company and one or more Underwriters and any such Underwriter shall have been
advised by counsel chosen by it and satisfactory to the Company, as the case may
be, that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company, the Company
shall not have the right to assume the defense of such action on behalf of such
Underwriter and the Company, will reimburse such Underwriter and any person
controlling such Underwriter as aforesaid for the reasonable fees and expenses
of any counsel retained by them, it being understood that the Company shall not,
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling persons,
which firm shall be designated by the [Underwriter] in writing. The Company
agrees to notify the [Underwriter] promptly after the assertion of any claim
against them, any of their directors, any of their officers who signed the
Registration Statement, or any person who controls them within the meaning of
Section 15 of the Act, in connection with the issuance and sale, as the case may
be, of the Securities.
(c) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of
21
this Section, as incurred, but only with respect to statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through [Underwriter] expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto). In case any action
shall be brought against the Company or any person so indemnified based on the
Registration Statement, such preliminary prospectus or the Prospectus, or any
amendment or supplement thereto and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties given
to the Company, and the Company and each person so indemnified shall have the
rights and duties given to the Underwriters by the provisions of Section 6(a)
and (b) hereof.
(d) The indemnity agreements contained in Section 6 shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of the Company, or any Underwriter or any controlling person, and shall
survive the delivery of the Securities to the Underwriters.
(e) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Underwriter], and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
22
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreements provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreements
incurred by the Company and one or more of the Underwriters, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus relating to the Securities bears to the initial public offering price
appearing thereon and the Company, is responsible for the balance; provided,
however, that 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 such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act shall have the same rights
to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
If this Agreement shall be terminated pursuant to Section 7 hereof, the
Company shall not be under any liability to any Underwriter except as provided
in Section 6 and Section 8 hereof; but if, for any other reason the transactions
contemplated herein are not consummated, the Company will reimburse the
Underwriter for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred by the Underwriter in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to the Underwriter in respect of the Securities not
so delivered except as provided in Section 4 and Section 6 hereof. Except as
provided above, the Company shall not be liable to the Underwriters for damages
on account of any other consequential damages or loss of anticipated profits.
In all dealings hereunder, the Representatives shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives jointly or by [Underwriter] on behalf of
the Representatives.
SECTION 9. Termination.
23
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by [Underwriter] upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. [Underwriter] may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (a) (i) a general banking moratorium shall
have been declared by either Federal or New York authorities, or (ii) there
shall have occurred any new outbreak or unforeseen escalation of hostilities or
other national or international calamity or crisis, or (iii) there shall have
occurred a suspension or material limitation in (x) trading in securities
generally on the New York Stock Exchange or (y) trading in any of the Company's
securities on the New York Stock Exchange, and the effect of the occurrence of
any event referred to in clause (i), (ii) or (iii) above is, in the reasonable
judgment of the [Underwriter], so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering of the
Securities or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus, or (b) the rating accorded the Securities or any
of the Company's debt securities or preferred stock by any Rating Agency shall
have been lowered since the time this Agreement was executed or if any Rating
Agency shall have publicly announced since the time this Agreement was executed
that it has placed its rating of the Securities or any of the Company's debt
securities or preferred stock under surveillance or review, with possible
negative implications.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then [Underwriter] shall have the right, within 36
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, [Underwriter] shall not have completed such
arrangements within such 36-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under such Terms Agreement
bear to the underwriting obligations of all non-defaulting
Underwriters, or
24
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased
on such date pursuant to such Terms Agreement, such Terms Agreement
(or, with respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase, and the Company to sell,
such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either [Underwriter] or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [Underwriter] at [Underwriter's Address],
attention of [*]; and notices to the Company shall be directed to it at 00 Xxxx
Xxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx, attention of Xxxxx X. Xxxxx Esq,
Associate General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
[Underwriter] and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
25
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW JERSEY. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between [Underwriter] and the Company in accordance with its terms.
Very truly yours,
PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[UNDERWRITER]
By
------------------------------
Authorized Signatory
27
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey)
Debt Securities
TERMS AGREEMENT
[ ], 1998
To: Public Service Enterprise Group Incorporated
[address of Issuer]
Ladies and Gentlemen:
We understand that Public Service Enterprise Group Incorporated, a New
Jersey corporation (the "Company"), proposes to issue and sell $ aggregate
principal amount of its [senior] [subordinated] debt securities (the "Debt
Securities") [senior] [subordinated] debt securities ([such securities also
being hereinafter referred to as] the "[Initial] Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we [the underwriters named below (the "Underwriters")] offer to
purchase, severally and not jointly, the principal amount of Underwritten
Securities opposite their names set forth below at the purchase price set forth
below [, and a proportionate share of Option Underwritten Securities set forth
below, to the extent any are purchased].
A-1
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
--------------------------------------------------------------------------------
-----------------------------
Total [$]
========================
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per security: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED -- Debt Securities --
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
A-2
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[Underwriter ]
By
---------------------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By
------------------------------------------
Name:
Title:
A-3
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey.
(2) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Company 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.
(4) 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 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, to the best of [our] [my] 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.
(5) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus). Such shares
of capital stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any securityholder
of the Company.
(6) The Underwriting Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
B-1
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign or corporate currency (or a foreign or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Underwritten Securities are in
the form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] [The] [Each] applicable Indenture has been duly authorized,
executed and delivered by the Company and (assuming due authorization, execution
and delivery thereof by the applicable Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(9) The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the [each] applicable [Indenture] conform, when issued and
delivered in accordance with the terms of the related Underwritten Securities,
will conform, in all material respects to the statements relating thereto
contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(10) The information in the Prospectus under "Description of Debt
Securities" or any caption purporting to describe any such Securities, ["Certain
Federal Income Tax Considerations" and "[*]", in the Annual Report on Form 10-K
under "[*]"] and in the Registration Statement under Item 15, to the extent that
it constitutes matters of law, summaries of legal matters or the Company's
charter, bylaws or legal proceedings, or legal conclusions, has been reviewed by
[us] [me] them and is correct in all material respects; and [our] [my] opinion
set forth under "Certain Federal Income Tax Considerations" is confirmed.
B-2
(11) To the best of [our] [my] knowledge, neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(12) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the [each] applicable [Indenture] and any
other agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company with its obligations thereunder do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to [us] [me],
to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the assets, properties or operations of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to [us] [me], of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets, properties
or operations.
(13) To the best of [our] [my] knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of its subsidiaries thereof is a party or to which the assets,
properties or operations of the Company or any of its subsidiaries thereof is
subject, before or by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material Adverse
Effect or which might reasonably be expected to materially and adversely affect
the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Underwriting Agreement, the applicable Terms
Agreement or the [any] applicable [Indenture] or the performance by the Company
of its obligations thereunder.
(14) All descriptions in the Prospectus of contracts and other documents to
which the Company or its subsidiaries are a party are accurate in all material
respects. To the best of [our] [my] knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or to be
filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
B-3
(15) To the best of [our] [my] knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of [our] [my] knowledge, no
stop order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which [we] [I] express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which [we] [I] express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company of the Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, the Underwriting Agreement, such
Terms Agreement or the [any] applicable [Indenture], other than under the 1933
Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which
have already been made, obtained or rendered, as applicable.
(20) The [Each] applicable Indenture has been duly qualified under the 1939
Act.
(21) The [Underwritten] Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(22) The Company is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described
B-4
in the Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to [our] [my] attention that would lead [us] [me] to
believe that the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom and for the Form T-1s, as to which [we] [I] make no
statement), at the time the Registration Statement (including any Rule 462(b)
Registration Statement) or any post-effective amendment thereto (including the
filing of the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, 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
that the Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein
or omitted therefrom, as to which [we] [I] make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits 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.
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. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-5
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
and:
(i) in our opinion, the audited consolidated financial statements and the
related financial statement schedules included or incorporated by reference
in the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
[three- month periods ended _________, 19__ and _________, 19__, the three-
and six-month periods ended _________, 19__ and _________, 19__ and the
three- and nine-month periods ended _________, 19__ and _________, 19__,
included or incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")] [, a reading of the
unaudited interim consolidated financial statements of the Company for the
_____-month periods ended _________, 19___ and _________, 19___, included
or incorporated by reference in the Registration Statement and the
Prospectus (the "_____-month financials")] [, a reading of the latest
available unaudited interim consolidated financial statements of the
Company], a reading of the minutes of all meetings of the stockholders and
directors of the Company and its subsidiaries and committees thereof since
[day after end of last audited period], inquiries of certain officials of
the Company and its subsidiaries responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"), with respect to the [description of relevant
periods] and such other inquiries and procedures as may be specified in
such letter, nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials included or
incorporated by reference in the
Annex I-1
Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any change in the ___________ of the Company and its subsidiaries,
any decrease in the __________ of the Company and its subsidiaries or
any increase in the __________ of the Company and its subsidiaries, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus, except in each case for any changes, decreases or
increases that the Registration Statement and the Prospectus disclose
have occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__ and
for the period from] _________, 19__ to a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any decrease in _________, __________ or ___________, in each case
as compared with the comparable period in the preceding year, except
in each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included or incorporated by
reference in the Registration Statement and the Prospectus [and a reading
of the financial statements from which such data were derived], nothing
came to our attention that caused us to believe that the Selected Financial
Data included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with
the disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the Selected Financial Data are not in
agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial
statements not included or incorporated by reference in the Registration
Statement and the Prospectus from which certain of such data were derived
are not in conformity with generally accepted accounting principles;]
Annex I-2
(iv) we have compared the information included or incorporated by reference
in the Registration Statement and the Prospectus under selected captions
with the disclosure requirements of Regulation S-K of the 1933 Act and on
the basis of limited procedures specified herein, nothing came to our
attention that caused us to believe that such information does not comply
as to form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a reading of
the latest available unaudited financial statements of the Company that
have not been included or incorporated by reference in the Registration
Statement and the Prospectus and a review of such financial statements in
accordance with SAS 71, nothing came to our attention that caused us to
believe that the unaudited amounts for ________ for the [most recent
period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;]
[(vi) we are unable to and do not express any opinion on the [Pro Forma
Combined Balance Sheet and Statement of Operations] (collectively, the "Pro
Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71] of the
financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe that
the Pro Forma
Annex I-3
Statements included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;]
(vii) in addition to the procedures referred to in clause (ii) above, we
have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
included or incorporated by reference in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of such
items with, and have found such items to be in agreement with, the
accounting and financial records of the Company; and
[(viii) in addition, we [add comfort on a financial forecast that is
included or incorporated by reference in the Registration Statement and the
Prospectus].
Annex I-4
