EXHIBIT 1-1
NEW YORK STATE ELECTRIC & GAS CORPORATION
$_________ ___% SENIOR UNSECURED DEBT SECURITIES
UNDERWRITING AGREEMENT
[Insert Date]
[Name of Representatives]
for themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto
[Name and Address of Representatives]
Ladies and Gentlemen:
1. New York State Electric & Gas Corporation, a corporation duly organized and
existing under the laws of the State of New York (the "Company"), proposes to
issue and sell $___________ of ___% Senior Unsecured Debt Securities, due
_______ (the "Securities"). The Company hereby agrees with [Name of
Representatives] (together, the "Representatives"), and each of the other
Underwriters named in Schedule A hereto (collectively, including the
Representatives, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 9 hereof) as follows:
2. [Any discretion to be exercised with respect to this Agreement will be
exercised jointly by ______ and ______ as [joint book-running managers].] The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) A registration statement on Form S-3 (File No. 333-_______) (the
"Registration Statement," which term shall include all exhibits thereto and
the documents incorporated by reference in the prospectus contained
therein), in respect of the Securities and certain other securities of the
Company has been filed with the Securities and Exchange Commission (the
"Commission"); the Registration Statement, in the form heretofore delivered
or to be delivered to the Underwriters has been declared effective by the
Commission in such form; no other document with respect to the Registration
Statement or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission; and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (the term "Base Prospectus" means the base prospectus relating
to the Securities and other securities included in the Registration
Statement; the term "Prospectus" means the Base Prospectus supplemented by
a prospectus supplement ("Prospectus Supplement") relating specifically to
the Securities filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"); the term "Preliminary
Prospectus" means a preliminary prospectus supplement specifically relating
to the Securities together with the Base Prospectus; any reference herein
to any Base Prospectus, Preliminary Prospectus or the Prospectus shall
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be deemed to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date of
such Base Prospectus, Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement shall be deemed to refer
to and include any documents filed after the date of such Base Prospectus
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Base Prospectus; any reference to the
Registration Statement shall be deemed to refer to and include any document
filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement;
(b) Except for the order of the Commission with respect to the
effectiveness of the Registration Statement referred to in paragraph (a)
above, no consent, approval, authorization, order, registration or
qualification of or with any federal or state commission, court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the indenture, dated as of
_______________ between the Company and JPMorgan Chase Bank, as trustee, to
be supplemented by a supplemental indenture relating to the Securities (the
indenture, as supplemented, the "Indenture"), except such approvals as have
been, or will have been, prior to the Time to Delivery, obtained under the
Act, and such consents, approvals, authorizations, orders, registrations or
qualifications as have been, or will have been, prior to the Time to
Delivery, obtained from the Public Service Commission of the State of New
York and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters; and a copy of the order heretofore entered by the Commission
with respect to the effectiveness of the Registration Statement has been or
will be delivered to Underwriters;
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any Underwriter of the
Securities expressly for use in the Prospectus as amended or supplemented;
(d) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will
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conform, in all material respects to the requirements of the Act and
the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
and regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date and the Time of
Delivery as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; PROVIDED, HOWEVER, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by any Underwriter of the Securities expressly for use in the Prospectus as
amended or supplemented;
(e) The financial statements filed with or as part of the
Registration Statement present fairly the financial position, results of
operations and changes in financial position of the Company at the dates
and for the periods indicated, all in conformity with generally accepted
accounting principles; and the Company has no material contingent
obligation which is not disclosed in the Registration Statement and the
Prospectus;
(f) The Company has not sustained, since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
which would result in any material adverse change, or any development
involving a prospective material adverse change in or affecting the general
affairs, management, financial position, stockholder's equity or results of
operations of the Company, otherwise than as set forth or contemplated in
the Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the Company, or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholder's equity or results of operations of the
Company, otherwise than as set forth or contemplated in the Prospectus;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in 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 have a
material adverse effect on the Company;
(h) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(i) This Agreement has been duly authorized, executed and delivered
by the
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Company;
(j) The Securities have been duly authorized, and, when duly
executed, authenticated, issued and delivered, will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery (as
defined in Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions of general
applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether enforcement is considered in a
proceeding at law or in equity); and the Indenture and the Securities
conform to the description thereof contained in the Prospectus, as
supplemented;
(k) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties;
(l) The statements set forth in the Prospectus as supplemented under
the captions "Description of Securities-Senior Unsecured Debt Securities"
and "Description of the Notes," insofar as they purport to constitute a
summary of the terms of the Securities, and under the captions ["Material
United States Federal Income Tax Considerations,"] "Plan of Distribution"
and "Underwriting," insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(m) The Company is not in violation of its Restated Certificate of
Incorporation, as amended, or By-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contracts, indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which the Company is bound or to which any of the property or assets
of the Company is subject;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of
which any property of the Company is the subject which, if determined
adversely to the Company, would individually or in the aggregate have a
material adverse effect on the current or future financial position,
stockholder's equity or results of operations of the Company; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
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(o) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company," as such term
is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder; and
(q) Other than as set forth in the Prospectus, the Company (i) is in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its businesses and (iii) is in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company.
3. On the basis of the representations, warranties and covenants contained in
this Agreement, and subject to the terms and conditions herein set forth, the
Company agrees to sell to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount of
Securities set forth in Schedule A hereto opposite to its name at a purchase
price equal to ______% of the aggregate principal amount of the Securities.
4. The Securities to be delivered to the Underwriters hereunder will be
represented by one or more global certificates in book-entry form which will be
deposited by, or on behalf of, the Company with, and shall be registered in the
name of, The Depository Trust Company ("DTC") or its designated custodian. The
Company will deliver the Securities to the Underwriters at the Time of Delivery
at the offices of Shearman & Sterling, New York, New York, against payment of
the purchase price in Federal (same day) funds to the account specified by the
Company to the Underwriters. The Company will cause the certificates
representing the Securities to be made available to the Underwriters for
checking at least twenty four hours prior to the Time of Delivery at the offices
of Shearman & Sterling. The time and date of such delivery shall be 9:30 a.m.,
New York City time on [insert date] or such other date and time as the Company
and the Underwriters may agree upon in writing. Such date and time are herein
called the "Time of Delivery."
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in a form
approved by the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Act not later than the Commission's close of business
on the second business day following the date hereof or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date hereof and prior to the Time of
Delivery which
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shall be disapproved by the Underwriters promptly after reasonable notice
thereof (other than the filing of any document required to be filed under
the Exchange Act which upon filing is deemed to be incorporated by
reference in the Registration Statement or Prospectus); to advise the
Representatives promptly of any such amendment or supplement after such
Time of Delivery and furnish the Underwriters with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery
of a prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Underwriters,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance
of any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business
day next succeeding the date of this Agreement and from time to time, to
furnish the Representatives with copies of the Prospectus as amended or
supplemented in New York City in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify the
Underwriters and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a
6
supplement to the Prospectus which will correct such statement or omission
or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of
the Commission thereunder (including, at the option of the Company, Rule
158); and
(e) During the period beginning from the date hereof and continuing
to and including the later of (i) the termination of trading restrictions
for the Securities, as notified to the Company by the Underwriters and (ii)
the Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than one
year after such Time of Delivery and which are substantially similar to
such Securities, without the prior written consent of the
Representatives on behalf of the Underwriters.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Indenture, any Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (vi) the cost of preparing the
Securities; (vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section 6, and Sections 8 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters shall be subject, in the discretion of
the Underwriters, to the condition that all representations and warranties and
other statements of the Company in or incorporated by reference in the
Prospectus as amended or supplemented are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
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obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented shall have been filed
with the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to
the Representatives' reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery,
with respect to the Company being duly incorporated and validly existing
under the laws of the jurisdiction of its incorporation, the matters
covered in paragraphs (iv), (v) and (vi) of subsection (c) below, and the
accuracy and completeness of the statements set forth in the Prospectus
under the captions "Description of Securities-Senior Unsecured Debt
Securities" and "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Securities, and "Plan of
Distribution" and "Underwriting," insofar as they purport to describe the
documents referred to therein, as well as such other matters as the
Representatives on the behalf of the Underwriters may reasonably request,
and such counsel shall have received such documents and information as they
may reasonably request to enable them to pass upon such matters;
(c) Xxxxx Xxxxxxxx & Xxxxx, counsel for the Company, shall have
furnished to the Underwriters their opinion, dated the Time of Delivery, in
form and substance satisfactory to the Representatives on behalf of the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus as amended or supplemented and, where applicable, 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 its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company;
(ii) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid
and non-assessable, and, to the best of such counsel's knowledge, all
of the outstanding shares of common stock of the Company are held by
RGS Energy Group, Inc., a wholly-owned subsidiary of Energy East
Corporation;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus as amended or supplemented, there are no
legal or governmental
8
proceedings pending to which the Company is a party or of which any
property of the Company is the subject which, if determined adversely
to the Company, would individually or in the aggregate have a material
adverse effect on the current or future financial position,
stockholder's equity or results of operations of the Company; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Securities have been duly authorized, executed, issued
and delivered and, assuming due authentication by the Trustee,
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether enforcement is
considered in a proceeding at law or in equity); and the Securities
are entitled to the benefits provided by the Indenture; and the
Securities and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws or judicial
decisions of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether
enforcement is considered in a proceeding at law or in equity); and
the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company is a party or by which the Company is bound, nor
will such actions result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-laws of the
Company or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement and the Indenture, except such as
9
have been obtained under the Act, and such consents, approvals,
authorizations, orders, registrations or qualifications as have been
obtained from the Public Service Commission of the State of New York,
and such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(ix) The Company is not in violation of its By-laws or Restated
Certificate of Incorporation, as amended, or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan agreement, lease or other instrument to which it
is a party;
(x) The statements set forth in the Prospectus under the
captions "Description of Securities-Senior Unsecured Debt Securities"
and "Description of the Notes," insofar as they purport to constitute
a summary of the terms of the Securities, and under the captions
"Material United States Federal Income Tax Considerations," "Plan of
Distribution" and "Underwriting," insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xi) The Company is not an "investment company," as such term
is defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements,
including the notes thereto and related schedules therein, as to which
such counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act, and the rules and regulations of the
Commission thereunder; and they have no reason to believe that any of
such documents, when they were so filed contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to the Time of Delivery (other than the
financial statements, including the notes thereto, and related
schedules therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and regulations
thereunder; although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to
in the opinion in subsection (x) of this Section 7(c), they have no
reason to believe that, as of the date of effectiveness of the
Registration Statement and as of the Time of Delivery,
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the Registration Statement (other than the financial statements,
including the notes thereto, and related schedules therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date and as of the Time of
Delivery, the Prospectus (other than the financial statements,
including the notes thereto, and related schedules therein, as to
which such counsel need express no opinion) contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration Statement as
amended or supplemented required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to such
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus, each as
amended or supplemented, which are not filed or incorporated by
reference or described as required;
(d) On the date hereof and at the Time of Delivery, the independent
accountants of the Company who have certified the financial statements of
the Company included or incorporated by reference in the Registration
Statement shall have furnished to the Underwriters a letter to the effect
set forth in Exhibit A hereto with respect to such letter dated the date
hereof, and as to such other matters as the Underwriters may reasonably
request and in form and substance satisfactory to the Representatives on
behalf of the Underwriters and the independent accountants of the Company
with respect to such letter dated the Time of Delivery;
(e) (i) The Company shall not have sustained, since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
which would result in any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholder's equity or
results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the date hereof there shall
not have been any change in the capital stock or long-term debt of the
Company or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholder's equity or results of operations of the Company, otherwise
than as set forth or contemplated in the Prospectus as of the date of this
Agreement, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Underwriters so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(f) During the period beginning on the date hereof and ending at the
Time of Delivery
11
(i) no downgrading shall have occurred in the rating accorded the Company
or the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Company
or of any of the Company's debt securities or preferred stock;
(g) During the period beginning on the date hereof and ending at the
Time of Delivery, there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the
New York Stock Exchange or the establishment of minimum prices on such
exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities declared by either Federal or
New York State authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iv)
an outbreak or escalation of hostilities involving the United States or the
declaration of a national emergency or war by the United States; or (v) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in this clause (iv) or (v) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
(h) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of this Agreement;
(i) The Company shall have furnished or caused to be furnished to the
Underwriters at the Time of Delivery a certificate or certificates of
officers of the Company satisfactory to the Representatives on behalf of
the Underwriters as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (e) of this Section and as to such other matters as
the Underwriters may reasonably request; and
(j) The Company shall have furnished the Underwriters at the Time of
Delivery a copy of the written approval of the Public Service Commission of
the State of New York of the terms of the Securities.
8. (a) The Company agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person who controls any Underwriter within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject. The Company also agrees to indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such
12
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Prospectus, the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Prospectus, the Registration Statement,
the Prospectus, or any such amendment or supplement thereto, in reliance upon
and in conformity with written information relating to any Underwriter furnished
to the Company expressly for use in the Prospectus as amended or supplemented.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No
13
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
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.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation
14
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each person,
if any, who controls an Underwriter, within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase under this Agreement, the
non-defaulting Underwriters may in their discretion arrange for themselves or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the non-defaulting Underwriters do not arrange for the purchase of
such Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the non-defaulting Underwriters to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
non-defaulting Underwriters notify the Company that they have so arranged for
the purchase of such Securities, or the Company notifies the non-defaulting
Underwriters that it has so arranged for the purchase of such Securities, the
non-defaulting Underwriters or the Company shall have the right to postpone the
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the non-defaulting Underwriters may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in subsection (a) above, the aggregate
principal amount of Securities which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such non-defaulting
Underwriter agreed to purchase under this Agreement and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
aggregate principal amount of Securities which such Underwriter agreed to
purchase hereunder) of the Securities which such defaulting Underwriter or
Underwriters agreed to purchase for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as
15
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of the Securities, as referred to in subsection (b) above, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of the defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve the defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of such Underwriters; if to _________; if
to __________; and if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to New York State Electric & Gas Corporation, X.X. Xxx
0000, Xxxxxx, XX 00000-0000, Attn: Treasurer, facsimile number: (607)
347-2560; PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth above. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. If the Company fails or refuses to comply with the terms or to fulfill any
of the conditions of this Agreement other than by reason of default by the
Underwriters, the Company will reimburse the Underwriters for all out-of-pocket
expenses approved in writing by the Underwriters, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase of the Securities.
13. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters and the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls any Underwriter or the Company, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. As used herein, "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business. Except as expressly provided in
this agreement, all capitalized terms used and not defined herein shall have the
meanings assigned to them in the Indenture.
16
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
[Signature page follows on the next page.]
17
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof.
Very truly yours,
NEW YORK STATE ELECTRIC & GAS
CORPORATION
By:
Name:
----------------------
Title:
----------------------
Accepted as of the date hereof:
[Name of Representatives]
[NAME OF REPRESENTATIVE]
By:
Name:
---------------------
Title:
----------------------
[NAME OF REPRESENTATIVE]
By:
Name:
---------------------
Title:
----------------------
For themselves and on behalf of the several Underwriters named in Schedule A
hereto.
SCHEDULE A
PRINCIPAL AMOUNT OF
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------------------
Total:
EXHIBIT A
Pursuant to Section 7(d) of the
Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company within the meaning of the Act and the applicable rules and
regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial statement schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) by them and included or
incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
rules and regulations adopted by the Commission;
(iii) They have performed 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 (SAS) 71,
Interim Financial Information, on the unaudited condensed statements of
income, balance sheets and statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-Q
incorporated by reference into the Prospectus; and on the basis of
specified procedures (but not an audit in accordance with generally
accepted auditing standards) including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed interim financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed interim
financial statements do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
results of operations and financial position of the Company for the five
most recent fiscal years set forth under the caption "Selected Financial
Data and Capitalization" included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited financial statements
for five such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an audit in
accordance
A-1
with generally accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the
Company, inspection of the minute books of the Company since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus, inquiries of officials of the Company
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that:
(A) (i) the unaudited condensed statements of income, balance
sheets and statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules
and regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed statements of
income, balance sheets and statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma condensed financial statements
included or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the rules and regulations adopted by the
Commission thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) at the date of the latest available interim financial data
and at a specified date not more than five business days prior to the
date of such letter, there have been any changes in the capital stock
or any increase in the long-term debt of the Company, or any decreases
in net current assets or shareholders' equity
A-2
or other items specified by the Underwriters, or any increases in any
items specified by the Underwriters, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(F) for the period from the date of the latest income statement
included or incorporated by reference in the Prospectus to the
specified date referred to in clause (E) there were any decreases in
operating revenues or operating income or total net income or other
items specified by the Underwriters, or any increases in any items
specified by the Underwriters, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriters which were obtained
from accounting records which are subject to controls over financial
reporting or which have been derived directly from such accounting records
of the Company by analysis or computation, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Underwriters or in documents incorporated by reference in the Prospectus
specified by the Underwriters, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and have found them to be in agreement.
A-3
