Exhibit 1.1
Form of
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
UNDERWRITING AGREEMENT
[________], 20[__]
[Names and Addresses of Underwriters]
Ladies and Gentlemen:
Public Service Enterprise Group Incorporated, a New Jersey corporation
(the "Company"), proposes to issue and sell 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
November 1, 1998 (the "Senior Indenture"), between the Company and US Bank
National Association (formerly known as First Union National Bank), as trustee
(the "Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under an indenture, to be entered into as of the date of execution
(the "Subordinated Indenture," and collectively with the Senior Indenture, the
"Indentures," and each, an "Indenture"), between the Company and US Bank
National Association (formerly known as First Union National Bank), 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/or
the Subordinated Debt Securities, as applicable.
Whenever the Company determines to make an offering of Securities through
[______________] (the "Representative"), or through an underwriting syndicate
managed by the Representative, 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, the Representative and such other
underwriters, if any, selected by the Representative (the "Underwriters," which
term shall include the Representative, 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 aggregate principal amount 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 the
Representative acting as co-manager in connection with such offering, the
aggregate principal amount 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 Applicable
Time (as defined below), 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 aggregate principal amount 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 the Representative, acting for itself
and, if applicable, as representative of any other Underwriters. Each offering
of Underwritten Securities through the Representative as the sole Underwriter or
through an underwriting syndicate managed by the Representative 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") an automatic shelf registration statement on Form S-3 (No.
333-[______]), including the related base prospectus, 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 became effective upon filing under
Rule 462(e) of the 1933 Act Regulations ("Rule 462(e)") under the 1933 Act, 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. Promptly after execution and delivery of the applicable Terms
Agreement, the Company will prepare and file a prospectus supplement relating to
the Underwritten Securities in accordance with the provisions of Rule 430B
("Rule 430B") of the 1933 Act Regulations and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations. Any information included in such
prospectus supplement that was omitted from such registration statement at the
time it became effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as "Rule 430B
Information." Each prospectus, if any, used in connection with the offering of
the Underwritten Securities that omitted Rule 430B Information, together with
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, is herein called a "preliminary prospectus." Such
registration statement, at any given time, including the amendments thereto to
such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act and the Rule 430B Information, are hereinafter collectively referred to as
the "Registration Statement." "Registration Statement" without reference to a
time means the Registration Statement as of the time of the first contract of
sale for a particular issue of the Securities, which time shall be considered
the "new effective date" of the Registration Statement with respect to such
Securities (within the meaning of Rule 430B(f)(2) under the 1933 Act). The
Registration Statement at the time it originally became effective is herein
called the "Original Registration Statement." The base prospectus and final
prospectus supplement, in the form first furnished or
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made available to the Underwriters for use in connection with the offering of
the Underwritten Securities, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the
execution and delivery of the applicable Terms Agreement, is herein called the
"Prospectus." For purposes of this Underwriting Agreement, all references to the
Registration Statement, any preliminary prospectus or the 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, any preliminary
prospectus or the Prospectus or any amendment or supplement thereto shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, and all references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is or is
deemed to be incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company represents and warrants to
the Representative, as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement, as of the date thereof, as of the Applicable Time,
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) Status as a Well-Known Seasoned Issuer. (A) At the time of
filing the Original Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the 1934 Act or form of prospectus), (C) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the 1933 Act Regulations) made any offer relating to the
Underwritten Securities in reliance on the exemption of Rule 163 of the
1933 Act Regulations ("Rule 163") and (D) as of the date of the execution
and delivery of this Underwriting Agreement and the applicable Terms
Agreement (the "Execution Date"), the Company was and is a "well-known
seasoned issuer," as defined in Rule 405 of the 1933 Act Regulations
("Rule 405"), including not having been and not being an "ineligible
issuer" as defined in Rule 405. The Registration Statement is an
"automatic shelf registration statement," as defined in Rule 405. The
Company is and remains eligible to use the automatic shelf registration
form and the Securities, since their registration on the Registration
Statement, have been and remain eligible for registration by the Company
on
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a Rule 405 "automatic shelf registration statement." The Company has not
received from the Commission any notice pursuant to Rule 401(g)(2) of the
1933 Act Regulations objecting to the use of the automatic shelf
registration statement form.
At the time of filing the Original Registration Statement, at the
earliest time that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2) under the 0000 Xxx) of
the Underwritten Securities and as of the Execution Date, the Company was
not or is not an "ineligible issuer," as defined in Rule 405.
(2) Registration Statement, Prospectus and Disclosure at Time of
Sale. The Original Registration Statement became effective upon filing
under Rule 462(e) on November [__], 2008, and any post-effective amendment
thereto also became effective upon filing under Rule 462(e). No stop order
suspending the effectiveness of the 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.
Any offer that is a written communication relating to the
Underwritten Securities made prior to the filing of the Original
Registration Statement by the Company or any person acting on its behalf
(within the meaning, for this paragraph only, of Rule 163(c) of the 1933
Act Regulations) has been filed with the Commission in accordance with the
exemption provided by Rule 163 and otherwise complied with the
requirements of Rule 163, including without limitation the legending
requirement, to qualify such offer for the exemption from Section 5(c) of
the 1933 Act provided by Rule 163.
At the respective times the Original Registration Statement and each
amendment thereto became effective and at each deemed effective date with
respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations, the Registration Statement complied, complies 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,
does 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.
The Prospectus and each amendment or supplement thereto, if any, at
the time the Prospectus or any such amendment or supplement is issued and
at the Closing Time and at each Date of Delivery, if any, complied,
complies and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations, and neither the Prospectus nor
any amendment or supplement thereto included, includes or will include an
untrue statement of a material fact or omitted, omits 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.
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Each preliminary prospectus (including the base prospectus filed as
part of the Original Registration Statement or any amendment thereto)
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered
or made available to the Underwriters for use in connection with the
offering of Underwritten Securities was and will, at the time of such
delivery, be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) (including the Final Term Sheet
(as defined in Section 3(b))) issued at or prior to the Applicable Time
and the Statutory Prospectus, all considered together (collectively, the
"General Disclosure Package"), nor (y) any individual Issuer Limited Use
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
As used in this subsection and elsewhere in this Underwriting
Agreement:
"Applicable Time" means such time and date as indicated in the
applicable Terms Agreement.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule
433"), relating to the Underwritten Securities that (i) is required to be
filed with the Commission, (ii) is a "road show that is a written
communication" within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Underwritten Securities or of the offering thereof that does not reflect
the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained
in the Company's records pursuant to Rule 433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in Schedule A
to the applicable Terms Agreement, and the Final Term Sheet.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
"Statutory Prospectus" as of any time means the prospectus relating
to the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a
part thereof.
Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of
the Underwritten Securities or until any earlier date that the Company
notified or notifies you as described in Section
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3(e), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in
the Registration Statement or the Prospectus.
The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use therein.
(3) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement, any
preliminary prospectus or 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 Registration Statement, any preliminary prospectus or the Prospectus,
as the case may be, (a) at the time the Original Registration Statement
became effective, (b) at the earlier of the time the Prospectus was first
used and the date and time of the first contract of sale of Underwritten
Securities and (c) at each Representation Date, did not and will not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(4) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement, the General Disclosure Package or the Prospectus
are independent public accountants as required by the 1933 Act and the
1933 Act Regulations and the Public Company Accounting Oversight Board
(United States).
(5) Financial Statements. The financial statements of the Company
included in the Registration Statement, the General Disclosure Package or
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 results 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, the General Disclosure Package or
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The Company's ratios of earnings to fixed
charges included in the General Disclosure Package or the Prospectus and
in Exhibit 12 to the Registration Statement have been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. The
selected financial data and the summary financial information included in
the General Disclosure Package or the Prospectus present fairly the
information shown therein and have been
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compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement, the General Disclosure
Package or the Prospectus. All disclosures contained in the Registration
Statement, the General Disclosure Package or the Prospectus, if any,
regarding "non-GAAP financial measures" (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G under
the 1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to
the extent applicable.
(6) No Material Adverse Change in Business. The Company has not
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus any material loss from fire,
explosion, flood, accident or other calamity not fully covered by
insurance, otherwise than as set forth or contemplated in the Registration
Statement, the General Disclosure Package and the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change or
any development involving a prospective material adverse change in the
general affairs, financial condition, earnings or business affairs of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Change");
(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; (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; and (D) there has not been any material change
in the capital stock (other than upon exercise of outstanding stock
options or upon conversion of convertible securities outstanding on the
date of the most recent balance sheet included in the General Disclosure
Package or the Prospectus or pursuant to the Company's employee or
director compensation and benefit plans or the Company's direct stock
purchase and dividend reinvestment plan) or long-term debt of the Company
and its subsidiaries.
(7) 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, has the power and authority to own,
lease and operate its properties and to conduct its business as described
in the General Disclosure Package and the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not result in
a Material Adverse Change.
(8) 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, PSEG Power LLC and PSEG Energy Holdings L.L.C. (each, a
"Subsidiary" and, collectively, the "Subsidiaries") has
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been duly incorporated or organized, is validly existing as a corporation
or limited liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, has the power and
authority to own, lease and operate its properties and to conduct its
business as described in the General Disclosure Package and the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not result in
a Material Adverse Change. Except as otherwise stated in the Registration
Statement, the General Disclosure Package and the Prospectus, all of the
issued and outstanding shares of capital stock or other equity interests
of each Subsidiary have been duly authorized and are validly issued, fully
paid and non-assessable and are 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 or other equity interests of any Subsidiary was issued in
violation of preemptive or other similar rights of any security holder of
such Subsidiary.
(9) Capitalization. The authorized, issued and outstanding shares of
capital stock of the Company are as set forth in the Company's most recent
Annual Report on Form 10-K or, if applicable, subsequent Quarterly Report
on Form 10-Q (except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
General Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the General Disclosure
Package and 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 security holder of
the Company.
(10) 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.
(11) Authorization of Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement, whether
Senior Debt Securities and/or Subordinated Debt 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. The Underwritten Securities being sold pursuant
to the applicable Terms Agreement, 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 Underwritten Securities
payable in a foreign currency (or a foreign currency judgment in
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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 being sold pursuant
to the applicable Terms Agreement will be in the form contemplated by, and
each registered holder thereof is entitled to the benefits of, the
applicable Indenture.
(12) Authorization of the Indentures. Each applicable Indenture has
been duly qualified under the 1939 Act and 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, 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 issued or issuable under such Indenture that are payable in a
foreign currency (or a foreign 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.
(13) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture conform, as of each Representation
Date, and when issued and delivered in accordance with their terms will
conform, in all material respects to the statements relating thereto
contained in the General Disclosure Package and 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.
(14) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its Amended and Restated
Certificate of Incorporation, by-laws or other organizational document 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 Change. The
execution, delivery and performance of this Underwriting Agreement, the
applicable Terms Agreement, each applicable Indenture, the Underwritten
Securities 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, the General Disclosure Package and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement, the General Disclosure Package and the Prospectus
(including the issuance and sale of
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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, by-laws or other
organizational documents 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.
(15) 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 Change.
(16) Absence of Proceedings. Other than as set forth in or
contemplated by the General Disclosure Package and 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, the General Disclosure Package
and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Change, 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 General Disclosure Package and
the Prospectus, this Underwriting Agreement, the applicable Terms
Agreement, the Underwritten Securities 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, the General Disclosure Package
and the Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Change.
(17) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the General
Disclosure Package,
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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.
(18) 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, the
applicable Terms Agreement, the applicable Indenture or the Underwritten
Securities or for the performance by the Company of the transactions
contemplated under the General Disclosure Package and the Prospectus, this
Underwriting Agreement, such Terms Agreement, the Underwritten Securities
or any applicable Indenture, except the registration of the Securities
under the 1933 Act, the qualification of the Indentures under the 1939 Act
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.
(19) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (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 Change. 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 Change. 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 Change.
(20) 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, the General Disclosure Package 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 General Disclosure Package and 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.
11
(21) Facilities. Except as otherwise stated in the Registration
Statement, the General Disclosure Package and the Prospectus and except as
would not, singly or in the aggregate, result in a Material Adverse
Change, the mechanical, electrical and other operating systems in the
Company's generation facilities are in good working order and repair and
are adequate for the present operation of the generation facilities by the
Company as described in the General Disclosure Package and the Prospectus.
(22) Insurance. The Company and its Subsidiaries have in full force
and effect insurance with reputable insurers covering their assets,
properties, operations, personnel and business against such losses,
damage, risks and hazards as are adequate in accordance with customary
industry practice to protect the Company, its Subsidiaries and their
businesses.
(23) Commodity Exchange Act. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement 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").
(24) 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
General Disclosure Package and the Prospectus will not be required to
register as, an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(25) Environmental Laws. Except as otherwise stated in the
Registration Statement, the General Disclosure Package and the Prospectus
and except as would not, singly or in the aggregate, result in a Material
Adverse Change, (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
12
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.
(26) Patriot Act. The Company will apply the net proceeds received
from the offering as provided in the section captioned "Use of Proceeds"
in the General Disclosure Package and the Prospectus and, to the best of
the Company's knowledge, none of the proceeds received from the offering
will be used to further any action in violation or contravention of the
U.S.A. Patriot Act or otherwise violate or contravene the rules,
regulations or policies of the U.S. Office of Foreign Assets Control.
(27) Internal Control Over Financial Reporting. The Company and each
of its subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, since the
end of the Company's most recent audited fiscal year, there has been (A)
no material weakness in the Company's internal control over financial
reporting (whether or not remediated) and (B) no change in the Company's
internal control over financial reporting that has materially affected, or
is reasonably likely to materially affect, such internal control over
financial reporting.
(28) Disclosure Controls and Procedures. The Company employs
disclosure controls and procedures that are designed to ensure that
information required to be disclosed by the Company in the reports that it
files or submits under the 1934 Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission's rules and
forms, and is accumulated and communicated to the Company's management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(29) Compliance with the Xxxxxxxx-Xxxxx Act. There is and has been
no failure on the part of the Company or any of the Company's directors or
officers, in their capacities as such, to comply in all material respects
with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to certifications.
(30) Pending Proceedings and Examinations. The Registration
Statement is not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject
of a pending proceeding under Section 8A of the 1933 Act in connection
with the offering of the Underwritten Securities.
13
(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 aggregate principal amount of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security. 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 the Representative to the Company setting
forth the aggregate principal amount 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 the Representative, 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 the Representative 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 aggregate principal amount of Option
Underwritten Securities then being purchased which the aggregate principal
amount of Initial Underwritten Securities each such Underwriter has severally
agreed to purchase as set forth in such Terms Agreement bears to the total
aggregate principal amount of Initial Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of the Company, 00
Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, or at such other place as shall be agreed
upon by the Representative 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
the Representative 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 the Company,
14
or at such other place as shall be agreed upon by the Representative and the
Company, on the relevant Date of Delivery as specified in the notice from the
Representative 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
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, 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. The
Representative, 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.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as the Representative 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 the Representative 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 the
Representative and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests;
Payment of Filing Fees. The Company, subject to Section 3(b), will comply with
the requirements of Rule 430B and will notify the Representative promptly, and
confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement or of a new registration statement
relating to the Securities or the filing of any supplement or amendment to the
Prospectus or any preliminary prospectus, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or the filing of a new registration statement or any
amendment or supplement to the Prospectus or any preliminary prospectus or any
document incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
such new registration statement or of any order preventing or suspending the use
of any preliminary prospectus or the 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 or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company becomes the subject
of a proceeding under Section 8A of the 1933 Act in connection with the offering
of the Underwritten Securities. The Company will promptly effect the filings
necessary pursuant to Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such
steps as it deems necessary to ascertain promptly whether the Prospectus
transmitted for filing under Rule 424(b) 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
15
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.
The Company shall pay the required Commission filing fees relating to the
Underwritten Securities within the time required by Rule 456(b)(1)(i) of the
1933 Act Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including,
if applicable, by updating the "Calculation of Registration Fee" table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus supplement filed
pursuant to Rule 424(b)).
(b) Filing of Amendments and 1934 Act Documents; Preparation of Final Term
Sheet. The Company will give the Representative notice of its intention to file
or prepare any amendment to the Registration Statement or a new registration
statement relating to the Securities or any amendment, supplement or revision to
any preliminary prospectus (including the base prospectus included in the
Original Registration Statement or amendment thereto at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Representative 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 of which the Representative
or counsel for the Underwriters shall reasonably disapprove. The Company has
given the Representative notice of any filings made pursuant to the 1934 Act or
the 1934 Act Regulations within 48 hours prior to the Applicable Time; the
Company will give the Representative notice of its intention to make any such
filing from the Applicable Time to the Closing Time and will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing and will not file or use any such document to
which the Representative or counsel for the Underwriters shall object. The
Company will prepare a final term sheet (the "Final Term Sheet") reflecting the
final terms of the Underwritten Securities, in form and substance satisfactory
to the Underwriters and attached as an exhibit to the applicable Terms
Agreement, and shall promptly file such Final Term Sheet as an "issuer free
writing prospectus" pursuant to Rule 433 as soon as possible after the execution
of such Terms Agreement.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representative and counsel for the Underwriters, in such
quantities as the Representative may reasonably request, without charge, signed
copies of the Original Registration Statement and any new registration statement
containing the Prospectus and, in each case, any amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein or otherwise
deemed to be a part thereof) and signed copies of all consents and certificates
of experts, and will also deliver to the Representative, without charge, a
conformed copy of the Original Registration Statement and any new registration
statement containing the Prospectus and, in each case, any amendment thereto
(without exhibits) for each of the Underwriters. The Original Registration
Statement and any new registration statement and, in each case, any 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 and
any amendment or supplement thereto as such Underwriter may reasonably request,
and the Company consents to
16
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 (or but for the exception afforded by
Rule 172 of the 1933 Act Regulations would be required to be delivered) under
the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. Each
preliminary prospectus and 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, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 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, the General Disclosure Package and the Prospectus. If at
any time when the Prospectus is required by the 1933 Act or the 1934 Act to be
delivered (or but for the exception afforded by Rule 172 of the 1933 Act
Regulations would be required to be delivered) in connection with sales of the
Underwritten 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 General
Disclosure Package or the Prospectus in order that the General Disclosure
Package or the Prospectus, as the case may be, 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, to file a new registration statement or to amend or
supplement the General Disclosure Package or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations (including,
with respect to the filing of a new registration statement, if at any time the
Company is no longer eligible to use an automatic shelf registration statement),
the Company will: (i) promptly prepare and file with the Commission, subject to
Sections 3(b) and 3(l), such amendment or supplement or new registration
statement as may be necessary to correct such statement or omission or to make
the Registration Statement, the General Disclosure Package or the Prospectus
comply with such requirements; (ii) use its best efforts to have such amendment
or new registration statement declared effective as soon as practicable (if it
is not an automatic shelf registration statement); and (iii) furnish to the
Underwriters, without charge, such number of copies of such amendment or
supplement or new registration statement as the Underwriters may reasonably
request. If, prior to the completion of the public offer and sale of the
Underwritten Securities, at any time following the issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information then contained in the Registration Statement (or any other
registration statement relating to the Underwritten Securities) or the
Prospectus or included or would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly (i) notify the
17
Representative and (ii) either (1) amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or omission
or (2) file a report with the Commission under the 1934 Act that corrects such
untrue statement or omission and notify the Representative in writing that such
Issuer Free Writing Prospectus shall no longer be used.
(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 the Representative 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 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
security holders as soon as practicable an earnings statement for the purposes
of, and to provide to the Underwriters 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
General Disclosure Package and 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 the
Representative, 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 (or but for the exception afforded by
Rule 172 of the 1933 Act Regulations would be 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.
(l) Free Writing Prospectuses. The Company represents and agrees that,
unless it obtains the prior consent of the Representative, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the
Representative and the prior consent of the Company, it has not made and will
not make any offer relating to the Underwritten Securities that would
18
constitute an "issuer free writing prospectus," as defined in Rule 433, or that
would otherwise constitute a "free writing prospectus," as defined in Rule 405,
required to be filed with the Commission; provided, however, that the
Underwriters are authorized to use any free writing prospectus that contains
substantially only information specified in the Final Term Sheet. Any such free
writing prospectus consented to by the Company and the Representative is
hereinafter referred to as a "Permitted Free Writing Prospectus." The Company
represents that it has treated or agrees that it will treat each Permitted Free
Writing Prospectus as an "issuer free writing prospectus," as defined in Rule
433, and has complied and will comply with the requirements of Rule 433
applicable to each and every Permitted Free Writing Prospectus, including timely
filing with the Commission where required, legending and record keeping.
(m) Renewal of Registration Statement. The date of any agreement by an
Underwriter to act as principal or agent in connection with the Underwritten
Securities is not more than three years subsequent to the initial effective date
of the Registration Statement (the "Renewal Date"). If, immediately prior to the
third anniversary of the Renewal Date, any of such Underwritten Securities
remain unsold by the applicable Underwriter(s) and a Prospectus is required to
be delivered or made available by such Underwriter(s) under the 1933 Act or the
1934 Act in connection with the sale of such Underwritten Securities, the
Company will, prior to the Renewal Date and subject to Section 3(b), file, if it
has not already done so, a new automatic shelf registration statement or a shelf
registration statement, as applicable, relating to such Underwritten Securities,
and, if such registration statement is not an automatic shelf registration
statement, will use its reasonable best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal Date, and
will take all other reasonable actions necessary or appropriate to permit the
public offering and sale of such Underwritten Securities to continue as
contemplated in the expired registration statement relating to such Underwritten
Securities. References herein to the "Registration Statement" shall include such
new automatic shelf registration statement or shelf registration statement, as
the case may be.
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 Original Registration Statement (including financial
statements and exhibits) and any new registration statement containing the
Prospectus and, in each case, any 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 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 delivery to the Underwriters of copies of the Original Registration
Statement and any new registration statement
19
containing the Prospectus, each preliminary prospectus, any Issuer Free Writing
Prospectus 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 Financial Industry
Regulatory Authority ("FINRA") 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, (xi) the fees and expenses of any Underwriter acting in the capacity of
a "qualified independent underwriter" (as defined in Rule 2720(b)(15) of the
Conduct Rules of the National Association of Securities Dealers, Inc.), if
applicable, and (xii) the costs and expenses (including without limitation any
damages or other amounts payable in connection with legal or contractual
liability) associated with the reforming of any contracts for sale of the
Underwritten Securities made by the Underwriters caused by a breach of the
representation contained in the sixth paragraph of Section 1(a)(2).
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section 5
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
has become effective under the 1933 Act and (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose or pursuant to Section 8A of the
1933 Act against the Company or related to an offering of Securities 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 for the Underwriters,
(ii) each preliminary prospectus and the Prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a
post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B), (iii) the
Final Term Sheet and any other material required to be filed by the Company
pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with
the Commission within the applicable time periods prescribed for such filings
under such Rule 433 and (iv) the Company shall have paid the required Commission
filing fees relating to the Underwritten Securities within the time required by
Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act
Regulations and, if applicable, shall have updated the "Calculation of
Registration Fee" table in accordance with
20
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or on the cover page of a prospectus supplement filed pursuant to Rule
424(b).
(b) Opinion of Counsel for the Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of any of Xxxxx X. Xxxxx, Esquire, R. Xxxxx Xxxxxxx, Esquire, or Xxxxx X.
Xxxxx, Esquire, 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 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, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley Austin 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 (6) to (9), (10) (solely as to the
information in the General Disclosure Package and the Prospectus under any
caption purporting to describe the Underwritten Securities), (16), (17), (20)
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 the Representative. 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) Officer's 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 General Disclosure Package or the
Prospectus, any Material Adverse Change, and the Representative 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 or pursuant to Section 8A of the 1933 Act against the Company
or relating to the offering 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, the Representative shall be furnished with a letter
from Deloitte & Touche LLP dated such date and addressed to the Board of
Directors of the Company and the Representative (on its own behalf and as
representative of the Underwriters) with copies thereof for each of the
Underwriters, to the effect that (i) they are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) in their opinion, the audited
consolidated financial statements and financial statement schedule(s)
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus and included in the Company's most recent Annual
21
Report on Form 10-K filed with the Commission under Section 13 of the 1934 Act
(the "Form 10-K") comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations; (iii) on the basis of (1) the performance of the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in Statement on
Auditing Standards No. 100, Interim Financial Information, on the unaudited
consolidated balance sheets, the unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated statements of cash flows of
the Company and its subsidiaries incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus and included in the
Company's Form 10-Q Quarterly Reports filed with the Commission under Section 13
of the 1934 Act (the "Forms 10-Q") subsequent to the most recent Form 10-K, (2)
a reading of the latest available unaudited financial statements of the Company,
(3) a reading of the minutes of meetings of the Shareholders of the Company, the
Board of Directors of the Company and the audit, corporate governance,
executive, finance, nuclear and organization and compensation committees thereof
as set forth in the minute books for the current year and certain draft
resolutions for subsequent meetings, and (4) inquiries of the officers of the
Company who have responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an audit made in
accordance with generally accepted auditing standards and would not necessarily
reveal matters of significance with respect to the comments made in such letter,
and accordingly that Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe that (A) any material
modifications should be made to the unaudited financial statements included in
the Forms 10-Q for them to be in conformity with GAAP; (B) the unaudited
financial statements included in the Forms 10-Q do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations; or (C) at the date of the latest available
financial statements and at a specified date not more than three days prior to
the date of such letter, there was any change in the common stock or preferred
stock or increase in long-term debt (except for such stock and long-term debt
acquired for sinking fund purposes or redeemed pursuant to optional redemption
or sinking fund provisions, or changes in capital lease obligations incurred in
the ordinary course of the Company's business) of the Company or any decreases
in the consolidated net assets or stockholders' equity or increase in
consolidated net current liabilities of the Company (except as occasioned by the
declaration of dividends), in each case as compared with the amounts shown on
the most recent consolidated balance sheet of the Company incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus or, during the period from the date of such balance sheet to a
specified date not more than three days prior to the date of such letter, there
were any decreases, as compared with the corresponding period in the preceding
year, in consolidated revenues, operating income, or the total or per share
amount of net income of the Company, except in each such case as set forth in or
contemplated by the Registration Statement, the General Disclosure Package and
the Prospectus or except for such exceptions enumerated in such letter as shall
have been agreed to by the Underwriters and the Company; (iv) in addition to the
audit referred to in their report included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus, and
the limited procedures referred to in clause (iii) above, they have carried out
certain other specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included or
incorporated by
22
reference in the Registration Statement, the General Disclosure Package or the
Prospectus and which are specified by the Underwriters, and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter; provided, that said letter may vary from
requirements specified above in such manner as the Representative may deem not
to be material or as may be acceptable to the Representative with the consent of
Underwriters who, together with the Representative have agreed to purchase in
the aggregate 50% or more of the Underwritten Securities.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, in
form and substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Underwriters 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, the
Underwritten Securities 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, as specified in the
applicable Terms Agreement, and the Company shall have delivered to the
Representative a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative, 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 FINRA for review, FINRA 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, the
Representative 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
23
correct as of each Date of Delivery, and, at the relevant Date of Delivery, the
Representative 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.
(2) The favorable opinion of any of Xxxxx X. Xxxxx, Esquire, R.
Xxxxx Xxxxxxx, Esquire, or Xxxxx X. Xxxxx, Esquire, 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 Sidley Austin 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 the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Representative pursuant to Section 5(f) hereof, except that the
"specified date" in 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 nationally recognized statistical 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 the Representative 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 the Representative by notice to the Company at
any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such
24
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.
(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:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430B Information,
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, any
Issuer Free Writing 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;
(2) 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, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission referred to in
subsection (1) above or any alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
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 (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply 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 the Representative expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430B Information, or in
any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto) or made in reliance upon the applicable
Trustee's Statement of Eligibility filed as an exhibit to the Registration
Statement.
(b) 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
25
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, such 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 Representative in writing. The Company agrees to notify the
Representative promptly after the assertion of any claim against it, any of its
directors, any of its officers who signed the Registration Statement, or any
person who controls it within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, in connection with the issuance and sale, as the
case may be, of the Underwritten Securities.
(c) Indemnification of the 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 this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430B Information, or
any preliminary prospectus, any Issuer Free Writing 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 the
Representative expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, such Issuer Free Writing 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, such Issuer Free Writing
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(b) hereof.
26
(d) The indemnity agreements contained in this 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 Underwritten Securities to the Underwriters.
(e) Settlement. 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.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement 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 in the Terms Agreement or appearing on
the cover page of the Prospectus relating to the Underwritten 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 0000
Xxx) 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 1933
Act or Section 20 of the 1934 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 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the aggregate principal amount of Initial
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement and not joint.
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.
27
If this Underwriting Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not be under any liability to any Underwriter except
as provided in Sections 4, 6 and 7 hereof; but if, for any other reason, the
transactions contemplated herein are not consummated, the Company will reimburse
the Underwriters for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities,
but the Company shall then be under no further liability to the Underwriters in
respect of the Underwritten Securities not so delivered except as provided in
Sections 4, 6 and 7 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 Representative 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 Representative or by the Representative on behalf of the
Underwriters.
SECTION 9. Termination.
(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 the Representative upon the giving of 30 days' prior written
notice of such termination to the other party hereto.
(b) Terms Agreement. The Representative 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, (i) if there has been, since the time of
execution of this Underwriting Agreement or since the respective dates as of
which information is given in the General Disclosure Package or the Prospectus,
any Material Adverse Change, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Underwriters, impracticable or
inadvisable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq Stock Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, FINRA or any other governmental
authority, or a material disruption has occurred in commercial banking or
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either federal or New York authorities or (v) if
the rating accorded the Securities or any debt securities or other security of
the Company by any nationally recognized statistical rating organization shall
have been decreased or withdrawn or any such rating organization has publicly
announced or given notice of any intended or potential decrease in or withdrawal
of any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
28
(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 the Representative 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, the Representative shall not have completed
such arrangements within such 36-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount 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
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount 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 the Representative 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, the General Disclosure Package
or the Prospectus or in any other documents or arrangements.
SECTION 11. No Advisory or Fiduciary Relationship. The Company
acknowledges and agrees that (a) the purchase and sale of the Underwritten
Securities pursuant to this Underwriting Agreement and the applicable Terms
Agreement, including the determination of the public offering price of the
Underwritten Securities and any related discounts and commissions, is an
29
arm's-length commercial transaction between the Company and the Underwriters,
(b) in connection with the offering contemplated by this Underwriting Agreement
and the applicable Terms Agreement and the process leading to such transaction,
each Underwriter is and has been acting solely as a principal and is not the
agent or fiduciary of the Company, or their stockholders, creditors, employees
or any other party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated by this Underwriting Agreement and the applicable Terms
Agreement except the obligations expressly set forth in this Underwriting
Agreement and the applicable Terms Agreement, (d) the Underwriters and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and (e) no Underwriter
has provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated by this Underwriting Agreement and the applicable Terms
Agreement and the Company has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
SECTION 12. 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 the Representative at [__________________],
Attention: [____________]; and notices to the Company shall be directed to them
at 00 Xxxx Xxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000, attention of Xxxxx X.
Xxxxx, Esq.
SECTION 13. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Representative 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.
SECTION 14. 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 YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
30
SECTION 15. Counterparts. This Underwriting Agreement may be signed in one
or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
SECTION 16. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
31
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 the Representative and the Company in accordance with its
terms.
Very truly yours,
PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By: _____________________________
Name:
Title:
32
Confirmed and accepted as of the
date first above written:
[NAME OF REPRESENTATIVE]
By: _____________________________
Authorized Signatory
Acting on behalf of itself and as representative
of the other named Underwriters
33
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
TERMS AGREEMENT
_______________, 20__
To: Public Service Enterprise Group Incorporated
00 Xxxx Xxxxx, X0X
X.X. Xxx 0000 Xxxxxx, XX 00000-0000
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 debt securities (the "Debt Securities") (such securities
also being hereinafter referred to as the "Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, 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.
Principal Amount of
Underwriter Underwritten Securities
----------- -----------------------
$
-------------
Total $
=============
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The Underwritten Securities shall have the following terms:
Title of Securities:
Rank: [Senior] [Subordinated] unsecured debt securities.
Ratings: Xxxxx'x Investors Service, Inc.:
Standard & Poor's Ratings Services:
Aggregate principal amount:
Aggregate principal amount of Option Underwritten Securities:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Listing requirements:
Black-out provisions:
Method of Offering: Fixed Price: % of principal amount plus accrued interest, if
any from , 20 .
Variable Price:
Initial public offering price per security: % of principal amount plus accrued
interest, if any, from , 20 .
Purchase price per security: % of principal amount plus accrued interest,
if any, from , 20 .
Form:
Other terms and conditions:
Issuer General Use Free Writing Prospectus (including the Final Term Sheet, if
applicable): See Schedule A hereto.
Applicable Time:
Closing date and location: ___________, 20__, 9:00 A.M.
00 Xxxx Xxxxx
Xxxxxx, XX 00000
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 ______________, 20__ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: [Representative]
----------------------------------
Authorized Signatory
Acting on behalf of itself and as
representative of the other named
Underwriters.
A-3
Accepted:
PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By: __________________________
Name:
Title:
A-4
Schedule A
to Terms Agreement
[Attach Issuer Free Writing Prospectus(es)]
A-5
Exhibit B
FORM OF OPINION OF COMPANY 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 General
Disclosure Package and the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement, the
applicable Terms Agreement and the applicable Indenture.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not result in a Material Adverse Change.
(4) Each Subsidiary has been duly incorporated or organized, is validly
existing as a corporation or limited liability company in good standing under
the laws of the jurisdiction of its incorporation or organization, has the power
and authority to own, lease and operate its properties and to conduct its
business as described in the General Disclosure Package and the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not result in a Material Adverse
Change. Except as otherwise stated in the Registration Statement, the General
Disclosure Package and the Prospectus, all of the issued and outstanding shares
of capital stock or other equity interests of each Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable and, to the
best of my knowledge, are 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 or
other equity interests of any Subsidiary was issued in violation of preemptive
or other similar rights of any security holder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the Company's most recent Annual Report on Form 10-K
or, if applicable, subsequent Quarterly Report on Form 10-Q (except for
subsequent issuances thereof, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the General Disclosure Package and the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the General Disclosure Package and 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 security holder
of the Company.
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(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(7) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement 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 the
Underwriting Agreement and the applicable Terms Agreement. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement, 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 Underwritten Securities payable in a foreign currency (or a foreign 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 being sold pursuant to
the applicable Terms Agreement are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(8) The 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), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any debt securities issued or issuable under such
Indenture that are payable in a foreign currency (or a foreign 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.
(9) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the applicable Indenture conform, and when issued and
delivered in accordance with their terms will conform, in all material respects
to the statements relating thereto contained in the General Disclosure Package
and 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 General Disclosure Package and the Prospectus
under "Description of the Notes" and "Description of the Senior and Subordinated
Debt Securities" or any caption purporting to describe any such Securities and
in the Annual Report on Form 10-K under "Regulatory Issues" and "Environmental
Matters" in Item 1 - Business and under Item 3 - Legal Proceedings, and any
updates thereto in subsequent 1934 Act reports of the Company, to
B-2
the extent that it constitutes matters of law, summaries of legal matters or the
Company's charter, by-laws or legal proceedings, or legal conclusions, has been
reviewed by me and is correct in all material respects.
(11) To the best of my knowledge, neither the Company nor any of its
Subsidiaries is in violation of its charter, by-laws or other organizational
documents 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, the General Disclosure Package 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, the Underwritten Securities, the
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, the General Disclosure
Package and the Prospectus and the consummation of the transactions contemplated
in the Underwriting Agreement and such Terms Agreement and in the Registration
Statement, the General Disclosure Package 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 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, by-laws or
other organizational documents of the Company or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to 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 my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries is a party or to which the assets, properties or operations
of the Company or any of its subsidiaries 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 Change 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, the Underwritten
Securities or the applicable Indenture or the performance by the Company of its
obligations thereunder.
(14) All descriptions in the General Disclosure Package and 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 my knowledge, there
are no franchises, contracts,
B-3
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the General Disclosure Package or 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.
(15) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the General Disclosure Package and the
Prospectus that are not described as required.
(16) The Registration Statement has become effective under the 1933 Act.
Any required filing of any preliminary prospectus supplement and of the
Prospectus pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b) (without reference to Rule 424(b)(8)). Any
required filing of each Issuer Free Writing Prospectus pursuant to Rule 433,
including the Final Term Sheet, has been made in the manner and within the time
period required by Rule 433(d). To the best of my knowledge, no stop order
suspending the effectiveness of the 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 and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and the 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 or
incorporated by reference therein or omitted therefrom and each Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1s"), as to which 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 Registration
Statement, the General Disclosure Package and the Prospectus (other than the
financial statements and supporting schedules included or incorporated by
reference therein or omitted therefrom, as to which 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, the
applicable Terms Agreement, the applicable Indenture or the Underwritten
Securities or for the performance by the Company of the transactions
contemplated under the General Disclosure Package, the Prospectus, the
Underwriting Agreement, such Terms Agreement, the applicable Indenture or the
Underwritten Securities, other than (i) 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, (ii) such as may be required under
the blue sky laws of any jurisdiction in connection with the offer and sale of
the Underwritten Securities by the Underwriters and (iii) such others that have
already been made, obtained or rendered, as applicable.
B-4
(20) The 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 and 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 in the General Disclosure Package and the
Prospectus will not be required to register as, an "investment company," as such
term is defined in the 1940 Act.
No facts have come to my attention that would lead me to believe that: (i)
the Original Registration Statement or any post-effective amendment thereto
(except for financial statements and supporting schedules and other financial
data included or incorporated by reference therein or omitted therefrom and for
the Form T-1s, as to which I make no statement), at the time the Original
Registration Statement or any such amendment thereto 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; (ii) the
Registration Statement, including the Rule 430B Information (except for
financial statements and supporting schedules and other financial data included
or incorporated by reference therein or omitted therefrom and for the Form T-1s,
as to which I make no statement), at each deemed effective date with respect to
the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations,
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; (iii) the General Disclosure Package (except for the financial
statements and supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which I make no
statement), as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading; or (iv) the Prospectus or any amendment or supplement
thereto (except for financial statements and supporting schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which 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 he deems 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
