Exhibit (1)
Central Xxxxxx Gas & Electric Corporation
$__,000,000
Medium-Term Notes, Series __
DISTRIBUTION AGREEMENT
____ __, ____
New York, New York
[Agents' names and addresses]
Dear Sirs:
Central Xxxxxx Gas & Electric Corporation, a New York corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $__,000,000 aggregate principal amount of its
Medium-Term Notes, Series __ (the "Notes").
The Company proposes to issue the Notes under its Indenture (the
"Indenture") dated as of April 1, 1992 to U.S. Bank Trust National Association
(formerly known as First Trust of New York, National Association) ("U.S. Bank
Trust") as successor to Xxxxxx Guaranty Trust Company of New York, as trustee
(the "Trustee").
The Notes will be issued in minimum denominations of $1,000 and integral
multiples thereof (unless otherwise specified by the Company), will be issued
only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture and, in the case
of Notes sold pursuant to Section 2(a), the Administrative Procedures attached
hereto as Exhibit A (the "Procedures"). The Procedures may only be amended by
written agreement of the Company and you after notice to, and with the approval
of, the Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you, the term "Purchaser" shall refer to any of you acting
solely as principal for resale to investors pursuant to Section 2(b) and not as
agent, and the term "you" shall refer to you together at any time any of you is
acting in both such capacities or in either such capacity; provided that any
additional person appointed as an Agent pursuant to Section 2(a) shall be
included in the terms "Agent" and "you".
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, you as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"). The Company filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (File No. 333-________), including a form of preliminary prospectus
which became effective, for the registration under the Act and the offering
thereof from time to time pursuant to Rule 415 of, among other things, up to
$__,000,000 aggregate principal amount of debt securities. The Company has filed
or will file with the Commission pursuant to the applicable paragraph of Rule
424 under the Act, any supplement or supplements to the form of prospectus
included in such registration statement relating to the Notes and the plan of
distribution thereof (such supplement being hereinafter called a "Prospectus
Supplement"). Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under
the Act and complies in all other material respects with said Rule. In
connection with the sale of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424 under the Act one or
more further supplements to the Prospectus Supplement providing for the
specification of or a change in the interest rates, if any, maturity dates,
issuance prices, redemption terms and prices, if any, and, if appropriate, other
terms of the Notes sold pursuant hereto or the offering thereof (any such
supplement being hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the Execution Time,
(ii) on the Effective Date, (iii) when any supplement to the Prospectus is filed
with the Commission, (iv) as of the date of any Terms Agreement (as defined by
Section 2(b)) and (v) at the date of delivery by the Company of any Notes sold
hereunder (each such delivery date, a "Closing Date"), (1) the Registration
Statement, as amended as of any such time, and the Prospectus, as supplemented
as of any such time, the Indenture, as amended or supplemented as of any such
time, complied or will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the respective rules thereunder; (2) the Registration
Statement, as amended as of any such time, did not or will not contain 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 not
misleading; and (3) the Prospectus, as supplemented as of any such time, will
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) that part of
the Registration Statement which shall constitute the Statements of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (B)
the information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean the later of (i)
the date that the
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Registration Statement or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission or (ii) the time and date of the
filing of the Company's most recent Annual Report on Form 10-K. "Execution Time"
shall mean the date and time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the debt securities contained in the Registration Statement at the
Effective Date (unless such basic prospectus has been amended by the Company
subsequent to the Effective Date, in which case "Basic Prospectus" shall mean
the form of preliminary prospectus as so amended). "Prospectus" shall mean the
Basic Prospectus as supplemented by the Prospectus Supplement and as it may be
further amended or supplemented at the particular time referred to.
"Registration Statement" shall mean the registration statements referred to in
paragraph (a) above, including incorporated documents, exhibits and financial
statements, as they may be amended at the particular time referred to. "Rule
415" and "Rule 424" refer to such rules under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, the Prospectus Supplement
or the Prospectus, as the case may be; and any reference herein to the terms
"amend", "amended", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Prospectus Supplement or the Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(d) Neither the Company nor its Subsidiary (as hereinafter defined)
has sustained since the date of the latest audited financial statements included
or incorporated by reference in the Registration Statement and 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 has had or is reasonably
likely to have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its Subsidiary
taken as a whole, otherwise than as set forth or contemplated in the
Registration Statement and 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 (other than pursuant to any
stock purchase, dividend reinvestment, savings, bonus, incentive, or similar
plan, conversions of convertible securities into common stock or shares of
capital stock issued or to be issued by the Subsidiary pursuant to one or more
subscription agreements in effect between the Subsidiary and the Company at the
date hereof) or long-term debt, normal amortization of debt premium and
discount, bank or finance company borrowings and repayments in the ordinary
course, or additional issuances or repurchases of commercial paper) of the
Company or its Subsidiary or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its Subsidiary taken as a whole, otherwise than as
set forth or contemplated in the Registration Statement and the Prospectus.
(e) Each of Phoenix Development Company, Inc. (the "Subsidiary") and
the Company has been duly incorporated and is validly existing as a corporation
in good standing
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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 do business in each
jurisdiction in which it owns or leases real property or in which the conduct of
its business requires such qualification except where the failure to be so
qualified, considering all such cases in the aggregate, does not involve a
material risk to the business, properties, financial position or results of
operations of the Company and its Subsidiary taken as a whole; and all of the
outstanding shares of capital stock of the Subsidiary have been duly authorized
and validly issued, are fully paid and nonassessable and are owned beneficially
by the Company subject to no security interest, other encumbrance or adverse
claim. Notwithstanding the foregoing, if the Subsidiary as of the date hereof or
any subsequent date should hereafter or thereafter cease to be a subsidiary
(within the meaning of Rule 405 promulgated by the Commission under the Act) of
the Company, such corporation shall be deemed to be excluded from the definition
of such term from and after such date.
(f) The issuance and sale of the Notes have been duly and validly
authorized by the Company and, when issued within the limitations set forth in
the order or orders of the Public Service Commission of the State of New York
referred to in subsection (g) below and executed and authenticated in accordance
with the provisions of the Indenture and delivered and paid for by the
purchasers thereof, the Notes will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture
equally and ratably with the securities outstanding thereunder; the Indenture
has been duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of good faith and
fair dealing; and the Notes and the Indenture conform to the descriptions
thereof in the Registration Statement and the Prospectus.
(g) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, this Agreement
and any Terms Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any 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 (except that, for purposes of this
representation and warranty, compliance with any financial covenant requiring an
arithmetic computation (not determinable at the Execution Time) in respect of
any Notes shall be measured at the time of the establishment of the terms of
such Notes), nor will such action result in any violation of the provisions of
the Company's Certificate of Incorporation, as amended, or the Bylaws 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
property or assets; and 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 Notes or the consummation by the Company
of the other transactions contemplated by this Agreement or any Terms Agreement
or the Indenture except such as have been obtained prior to the Execution Time
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or
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qualifications as may be required under state securities or Blue Sky laws in
connection with the public offering of the Notes, and except for filings with
and the orders from the Public Service Commission of the State of New York
authorizing the issuance and sale by the Company of the Notes subject to certain
conditions set forth therein, which orders have been obtained and are in full
effect.
(h) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending to which the Company or its
Subsidiary is a party or of which any property of the Company or its Subsidiary
is the subject which, if determined adversely to the Company or its Subsidiary,
would individually or in the aggregate have a material adverse effect on the
financial position, stockholders' equity or results of operations of the Company
and its Subsidiary taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(i) There are no contracts or documents of the Company or its
Subsidiary that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement by the
Act or by the rules and regulations thereunder that have not been so described
or filed.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein, the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the Notes from the
Company. On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to reject
any offer to purchase Notes, in whole or in part. In addition, the Company
reserves the right, in its sole discretion, to instruct the Agents to suspend at
any time, for any period of time or permanently, the solicitation of offers to
purchase the Notes. Upon receipt of instructions from the Company, the Agents
will forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission on the Closing Date with
respect to each sale of Notes by the Company as a result of a solicitation made
by such Agent pursuant to this subsection, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the Notes
sold by the Company or in such other amount as may be agreed to in writing
between the Company and an Agent; provided that such amount shall not exceed the
amounts set forth on Schedule I hereto. Such commission shall be payable as
specified in the Procedures.
Subject to the provisions of this Section 2 and to the Procedures, offers
for the purchase of Notes may be solicited by an Agent as agent for the Company
at such times and in such amounts as such Agent deems advisable. The Company
may, upon five (5) days' prior written
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notice to the Agents, appoint additional persons to serve as Agents hereunder,
but only if each such additional person agrees to be bound by all the terms of
this Agreement as an Agent. The Company reserves the right to sell, and may
solicit and accept offers to purchase, Notes directly on its own behalf, and, in
case of any such sale not resulting from a solicitation made by any Agent, no
commission shall be payable by the Company with respect to such sale. To the
extent a potential investor contacts the Company directly with an offer or
inquiry to purchase Notes, the Company, in lieu of accepting such offer to
purchase and selling Notes directly on its own behalf, may refer such potential
investor to any Agent to complete such sale (each a "Reverse Offer"). Any
commission payable to such Agent on the Closing Date with respect to a Reverse
Offer shall be in an amount as may be agreed to by the Company and such Agent at
such time. The Company agrees, so long as any Agent is serving in such capacity
hereunder, that it will not contact or solicit potential investors introduced to
it by such Agent to purchase Notes.
(b) Subject to the terms and conditions stated herein, whenever the
Company and any of you determine that the Company shall sell Notes directly to
any of you as Purchaser, each such sale of Notes shall be made in accordance
with the terms of this Agreement and, unless otherwise agreed by the Company and
the Purchaser, any supplemental agreement relating thereto between the Company
and the Purchaser. Each such supplemental agreement (which shall be
substantially in the form of Exhibit B hereto) is herein referred to as a "Terms
Agreement." The Purchaser's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall describe the Notes
to be purchased by the Purchaser pursuant thereto, specify the principal amount
of such Notes, the price to be paid to the Company for such Notes, the rate at
which interest will be paid on the Notes, the Closing Date for such Notes, the
place of delivery of the Notes and payment therefor, the method of payment and
any modification of the requirements for the delivery of the opinions of
counsel, the certificates from the Company or its officers, and the letter from
the Company's independent public accountants, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time referred to in Section
4(m). Except as set forth in any Terms Agreement, no commission shall be payable
by the Company with respect to any sale of Notes pursuant to a Terms Agreement.
Delivery of the Notes sold to the Purchaser pursuant to any Terms
Agreement shall be made as agreed to between the Company and the Purchaser as
set forth in the respective Terms Agreement, not later than the Closing Date set
forth in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form set
forth in the respective Terms Agreement.
3. Offering and Sale of Notes.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i)
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periodic or current reports filed under the Exchange Act, (ii) a Pricing
Supplement or (iii) a supplement relating to an offering of debt securities
other than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable opportunity to
comment on any such proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause each supplement to the Prospectus to be filed
with the Commission pursuant to the applicable paragraph of Rule 424 within the
time period prescribed. The Company will promptly advise each of you (i) when
the Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424, (ii) when, prior to the termination of the
offering of the Notes, any amendment of the Registration Statement shall have
been filed or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Prospectus or for
any additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as reasonably possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement or
to supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified by the
Company, each of you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in such
quantities as you may reasonably request; provided, however, that should any
such event relate solely to activities of you, then you shall assume the expense
of preparing and furnishing any such amendment or supplement. If such amendment
or supplement, and any documents, certificates and opinions furnished to each of
you pursuant to paragraphs (g), (j), (k) and (l) of this Section 4 in connection
with the preparation of filing of such amendment or supplement are satisfactory
in all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your obligation
to solicit offers to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will timely file
all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, on the date on which
the Company (or as soon as practicable thereafter) makes any announcement to the
general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to each of
you the information contained in such announcement. The Company will notify each
of you of any
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downgrading in the rating of the Notes or any other debt securities of the
Company, or any public announcement of placement of the Notes or any other debt
securities of the Company on what is commonly termed a "watch list" for possible
downgrading, by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), promptly after the Company
learns of any such downgrading or public announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its Subsidiary which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge (except as otherwise provided herein), a reasonable number of
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the Notes for
sale under the laws of such jurisdictions as any of you may designate, will
maintain such qualifications in effect so long as required for the distribution
of the Notes, and upon your request will arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided,
however, that 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, to pay filing fees and other expenses in connection therewith in
the aggregate exceeding $4,000, or to comply with any other requirement
reasonably deemed by the Company to be unduly burdensome.
(g) During the term of this Agreement, the Company shall furnish to
each of you (i) copies of all annual, quarterly and other reports furnished to
stockholders, (ii) copies of all annual, quarterly and current reports (without
exhibits but including documents incorporated by reference therein) of the
Company filed with the Commission under the Exchange Act and (iii) such other
information concerning the Company as you may reasonably request from time to
time.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including reasonable fees of counsel, incurred
pursuant to Section 4(f), the fees and disbursements of the Trustee and the fees
of any ratings agency that rates the Notes, (ii) reimburse each of you on a
monthly basis for all reasonable out-of-pocket expenses incurred by you in
connection with this Agreement (including, but not limited to, advertising
expenses), in the aggregate not to exceed $2,500 per Agent for the term of this
Agreement, and (iii) pay the reasonable fees and expenses of your counsel
incurred in connection with this Agreement.
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(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be a new making to you of the representations and warranties
of the Company in Section 1 (except that such representations and warranties
shall be deemed to relate solely to the Registration Statement as then amended
and to the Prospectus as then amended and supplemented to relate to such Notes).
(j) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is amended or
supplemented (other than by (i) an amendment or supplement relating to any
offering of debt securities other than the Notes or (ii) a Pricing Supplement)
the Company will deliver or cause to be delivered promptly to each of you a
certificate of the Company, signed by any of the Chairman of the Board, the
President and Chief Executive Officer, any Vice President having
responsibilities for financial matters or the Controller or the Treasurer of the
Company, dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form reasonably satisfactory to you, of the
same tenor as the certificate referred to in Section 5(d) but modified to relate
to the last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration Statement
and the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is amended or
supplemented (other than by (i) an amendment or supplement relating to any
offering of debt securities other than the Notes or (ii) a Pricing Supplement),
the Company shall furnish or cause to be furnished promptly to each of you a
written opinion, satisfactory to you, by Xxxxxxxx Xxxx LLP, counsel for the
Company, dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form satisfactory to each of you, of the same
tenor as the opinion referred to in Section 5(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement or,
in lieu of such opinion, such counsel may furnish each of you with a letter to
the effect that you may rely on such counsel's last opinion to the same extent
as though it were dated the date of such letter authorizing reliance (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is amended or
supplemented (other than by (i) an amendment or supplement relating to any
offering of debt securities other than the Notes or (ii) a Pricing Supplement)
to set forth amended or supplemental financial information (derived from the
accounting records of the Company subject to the internal controls of the
Company's accounting system or derived directly from such records by
computation), the Company shall cause its independent public accountants
promptly to furnish each of you a letter, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter referred to in
Section 5(e) with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter.
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(m) During the period, if any, specified in any Terms Agreement, the
Company shall not, without the prior consent of the Purchaser thereunder, issue
or announce the proposed issuance of any of its debt securities, including the
Notes, with maturities or other terms substantially similar to the Notes being
purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the provisions
of subsections (j), (k) and (l) of this Section 4 during any period (which may
occur from time to time during the term of this Agreement) for which the Company
has instructed the Agents to suspend the solicitation of offers to purchase
Notes with respect to any Agent who is not a Purchaser holding Notes during any
such period pursuant to any Terms Agreement. Whenever the Company has instructed
the Agents to suspend the solicitation of offers to purchase Notes for any such
period, however, prior to instructing the Agents to resume the solicitation of
offers to purchase Notes or prior to entering into any Terms Agreement, the
Company shall be required to comply with the provisions of subsections (j), (k)
and (l) of this Section 4, but only to the extent of delivering or causing to be
delivered the most recent certificate, opinion or letter, as the case may be,
which would have otherwise been required under each such subsection unless the
Agents otherwise reasonably request that such documents in respect of prior
periods be delivered.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date and when any
supplement to the Prospectus is filed with the Commission, (ii) the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule 424;
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Xxxxxxxx Xxxx LLP, counsel for the Company, dated the Execution Time, 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
governmental) to own its properties and conduct its business as described
in the Prospectus, as amended or supplemented, and is duly qualified to do
business in each jurisdiction in which it owns or leases real property or
in which the conduct of its business requires such qualification except
where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company; provided,
however, that at such time, if ever, the Subsidiary constitutes 10% or
more of the consolidated assets of the Company or contributes 10% or more
of the consolidated net income of the Company for the then most recent
12-month period, the
10
Agents may request that Xxxxxxxx Xxxx LLP include in any written opinion
to them required by this Section 5(b) or Section 4(k), an opinion to the
effect that the Subsidiary 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
governmental) to own its properties and conduct its business as described
in the Prospectus, as amended or supplemented, and is duly qualified to do
business in each jurisdiction in which it owns or leases real property or
in which the conduct of its business requires such qualification except
where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and the
Subsidiary taken as a whole; and all of the outstanding shares of capital
stock of the Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable and are owned beneficially by the Company
subject to no security interest, other encumbrance, or adverse claim.
(ii) To the best of such counsel's knowledge and other than as
set forth or contemplated 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 consolidated financial position,
stockholders' equity or results of operations of the Company and its
Subsidiary, taken as a whole; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(iii) This Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
the enforcement of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of good faith
and fair dealing; and the Indenture has been duly qualified under the
Trust Indenture Act.
(v) The issuance and sale of the Notes have been duly and
validly authorized by the Company and, when issued within the limitations
set forth in the applicable order or orders from the Public Service
Commission of the State of New York referred to in paragraph (x) below and
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers thereof in
accordance with this Agreement, the Notes will constitute valid and
legally binding obligations of the Company enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally,
to general equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and to an implied
covenant of good
11
faith and fair dealing, and will be entitled to the benefit provided by
the Indenture equally and ratably with the securities outstanding
thereunder (except insofar as a sinking fund established in accordance
with the provisions of the Indenture may afford additional benefit for the
securities of any particular series); and the Notes and the Indenture
conform as to legal matters to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(vi) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture and this
Agreement and the consummation of the transactions therein and herein
contemplated (except as to compliance with any financial covenant
requiring an arithmetic computation not determinable at the Execution Time
as to which such counsel need express no opinion) will not conflict with
or result in a breach of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement or
material other agreement or instrument known, as of the date of such
opinion, to such counsel 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 Company's Certificate of Incorporation, as amended, or the Bylaws
of the Company or any statute or any order, rule or regulation known, as
of the date of such opinion, to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties.
(vii) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
having jurisdiction over the Company or any of its properties is required
for the issue and sale of the Notes or the consummation by the Company of
the other transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture
Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the public offering of the Notes, and except for
filings with and the order or orders from the Public Service Commission of
the State of New York authorizing the issuance and sale by the Company of
the Notes subject to certain conditions set forth therein, which order or
orders have been obtained and, to the best knowledge of such counsel, are
in full force and effect.
(viii) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date of such opinion (except as to the financial
statements and other financial or statistical data contained or
incorporated by reference therein and except for that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee, as to which such counsel need express no opinion) comply as
to form in all material respects with all applicable requirements of the
Act, and, with respect to the documents or portions thereof filed with the
Commission pursuant to the Exchange Act and incorporated by reference in
the Prospectus pursuant to Item 12 of Form S-3, the Exchange Act and the
applicable instructions, rules and regulations of the Commission
thereunder; on the basis of information received from the Commission, at
the date of such opinion, the Registration Statement has become effective
under the Act, and, to the best knowledge of such counsel, no proceedings
for a stop order with respect thereto have been instituted or are
12
pending or threatened under Section 8 of the Act; and based on such
counsel's participation in the preparation of the Registration Statement
and Prospectus and its services as general counsel to the Company (but
such opinion may state that such counsel did not independently check or
verify the correctness of the statements made by the Company or factual
information included in the Registration Statement and Prospectus, and
thereby may assume the correctness thereof, except insofar as such
statements or information relate to such counsel or are stated in the
Registration Statement or Prospectus as having been made on their
authority as experts), no facts have come to the attention of such counsel
to cause them to believe, and such counsel have no reason to believe, that
the Registration Statement, at the Effective Date, 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 (except as to the financial statements or other financial or
statistical data contained in or incorporated by reference in the
Registration Statement and the Prospectus and except for that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee), or that the Prospectus, as of the date of such opinion,
includes an untrue statement of a material fact 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
(except as to the financial statements or other financial or statistical
data contained in or incorporated by reference in the Registration
Statement and the Prospectus).
(ix) The Company is not subject to the provisions of the
Public Utility Holding Company Act of 1935, except Section 9(a)(2)
thereof; and the Company's gas distribution activities are exempt from the
Natural Gas Act.
(x) The Public Service Commission of the State of New York has
issued an appropriate order or orders with respect to the issuance and
sale of the Notes in accordance with this Agreement; to the best knowledge
of such counsel, such order or orders are still in full force and effect;
the issuance and sale of the Notes in accordance with this Agreement and
subject to the limitations set forth in such orders will conform with the
terms of such order or orders.
As to factual matters (including relating to the Company's financial
condition) included in said opinion, such counsel may rely upon certificates of
public officials as of a recent date, the warranties and representations of the
Company set forth in this Agreement, and certificates of the Company made
pursuant to the provisions of this Agreement.
(c) Each Agent shall have received from Pillsbury Winthrop LLP,
counsel for the Agents, an opinion, dated the Execution Time, with respect to
the issuance and sale of the Notes, the Indenture, the Registration Statement,
the Prospectus (together with any supplement thereto) and other related matters
as the Agents may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a certificate of
the Company, signed by any of the Chairman of the Board, the President, the
Chief Financial Officer
13
or any Vice President having responsibilities for financial matters, the
Controller or the Treasurer of the Company, dated the Execution Time, to the
effect that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects and the Company
has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied as a condition to the obligation of
the Agents to solicit offers to purchase the Notes.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened.
(iii) (A) Neither the Company nor its Subsidiary has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Registration Statement and 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 has had or is reasonably likely to have a material adverse
effect on the financial position, stockholders' equity or results of
operations of the Company and its Subsidiary taken as a whole, otherwise
than as set forth or contemplated in the Registration Statement and the
Prospectus and (B) 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 (other than pursuant to any stock
purchase, dividend reinvestment, savings, bonus, incentive, or similar
plan, conversions of convertible securities into common stock, or shares
of capital stock issued or to be issued by the Subsidiary pursuant to one
or more subscription agreements in effect between the Subsidiary and the
Company at the date hereof), or long-term debt (normal amortization of
debt premium and discount, bank or finance company borrowings and
repayments in the ordinary course, or additional issuances or repurchases
of commercial paper) of the Company or its Subsidiary or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its Subsidiary taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
(e) At the Execution Time, PricewaterhouseCoopers LLP shall have
furnished to each Agent a letter, dated as of the Execution Time, in form and
substance satisfactory to the Agents, stating in effect that:
(i) They are independent accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
14
(ii) In their opinion the financial statements and schedules
of the Company included in the Company's Annual Report on Form 10-K for
the year ended December 31, 2003, which are incorporated by reference in
the Prospectus and examined by such firm, comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act, and the respective published rules and regulations
thereunder.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) consisting of: (A)
reading the amounts included in the Annual Report appearing in the table
captioned "Five-Year Summary of Consolidated Operations and Selected
Financial Information" for the five years ended December 31, 2003 (the
"Audited Amounts") which were derived from the financial statements for
such years as examined by such accountants (the "Audited Statements"); (B)
performing the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as
described in SAS No. 100, Interim Financial Information, on the unaudited
condensed interim financial statements of the Company included in the
Registration Statement and the Prospectus (the "Unaudited Statements"),
and reading any more recent unaudited interim financial data of the
Company; (C) reading the minutes of meetings of the shareholders, Board of
Directors and Committees of the Board of Directors of the Company held
during the period from December 31, 2003 as set forth in the minutes book
through a specified date not more than five business days prior to the
date of such letter; and (D) making inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
regarding the specific items for which representations are requested in
Sections 5(e)(iii)(1) to 5(e)(iii)(4), nothing has come to their attention
as a result of the foregoing procedures that caused them to believe that:
(1) the Unaudited Statements incorporated by reference
in the Registration Statement and the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements and with the published rules and regulations of the
Commission with respect to financial statements included or
incorporated in Quarterly Reports on Form 10-Q under the Exchange
Act; or that any material modifications should be made to said
Unaudited Statements for them to be in conformity with generally
accepted accounting principles;
(2) the Audited Amounts were not derived from the
Audited Statements;
(3) at the date of the latest available monthly
unconsolidated balance sheet (as adjusted to reflect the relevant
activity of the Subsidiary through said date) of the Company read by
such accountants, there was any change in the capital stock or
long-term debt of the Company, or any decrease in the total
shareholders' equity, as compared with amounts shown on the latest
balance sheet included in the Audited Statements, except, in all
instances, for changes or decreases which are described in such
letter; or
15
(4) for the period subsequent to the date of the Audited
Statements to the date of the latest available monthly
unconsolidated income statement (as adjusted to reflect the relevant
activity of the Subsidiary through said date) of the Company read by
such accountants, there were any decreases, as compared with the
corresponding period of the previous year, in total operating
revenues or net income of the Company, except, in all instances, for
changes or decreases which are described in such letter.
(iv) They have compared certain dollar amounts (or percentages
derived from such dollar amounts) and other financial information
specified by the Agents (A) which appear in the Prospectus under the
caption "Ratios of Earnings to Fixed Charges", (B) which appear or are
incorporated by reference in the Company's Annual Report on Form 10-K
incorporated by reference in the Registration Statement and the Prospectus
under the caption "Management's Discussion and Analysis of Financial
Condition and Results of Operations" or (C) which appear in any of the
Company's Quarterly Reports on Form 10-Q incorporated by reference in the
Registration Statement and the Prospectus under the captions "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and "Ratios of Earnings to Fixed Charges" (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the accounting records of the Company subject to the internal
controls of the Company's accounting system or are derived directly from
such records by computation) to the accounting records of the Company or
schedules prepared from data in such records and have found such dollar
amounts, percentages and other financial information to be in agreement.
References to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
(f) Each Agent shall have received copies of the Letter of
Representations between the Company, U.S. Bank Trust and The Depositary Trust
Company ("DTC"), satisfactory to each of you, summarizing DTC's agreement to
hold, safekeep and effect book-entry transfers of the Notes.
(g) Prior to the Execution Time, the Company shall have furnished to
each Agent such further information, documents, certificates and opinions of
counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
16
The documents required to be delivered by this Section 5 at the Execution
Time shall be delivered at the office of Xxxxxxxx Xxxx LLP, Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
6. Conditions to the Obligations of the Purchaser. The obligations of the
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) If specified by any related Terms Agreement and except to the
extent modified by such Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d), (ii) the opinion of Xxxxxxxx Xxxx
LLP, counsel for the Company, dated as of the Closing Date, substantially to the
effect set forth in Section 5(b), (iii) the opinion of Pillsbury Winthrop LLP,
counsel for the Purchaser, dated as of the Closing Date, substantially to the
effect set forth in Section 5(c) and (iv) the letter of PricewaterhouseCoopers
LLP, independent public accountants for the Company, dated as of the Closing
Date, substantially to the effect set forth in Section 5(e); provided, however,
that references to the Registration Statement and the Prospectus in such
certificate, opinions and letter shall be to the Registration Statement and the
Prospectus as then amended and supplemented.
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
any Terms Agreement, or if any of the opinions and certificates mentioned above
or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
any time prior to, the respective Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if, at
the Closing Date therefor, either (a) any condition set forth in Section 5 or
Section 6, as applicable, shall not be satisfied or (b) subsequent to the
agreement to purchase such Note, there shall have occurred (i) any change in or
affecting the business or properties of the Company and its Subsidiary,
considered as one enterprise, the effect of which, in the reasonable judgment of
such person, has a material adverse effect on the
17
investment quality of such Note or (ii) any event described in paragraphs (ii),
(iii), (iv) or (v) of Section 9(b).
8. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each of you against all losses, claims, damages or liabilities,
joint or several, to which you 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 Registration Statement, the
Prospectus, any Prospectus Supplement and any other prospectus relating to the
Notes, or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each of you for any legal or other expenses reasonably incurred
by each of you in connection with investigating or defending any such action or
claim; 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 in or omission or
alleged omission from the Registration Statement, the Prospectus, any Prospectus
Supplement and any other prospectus relating to the Notes or any such amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any of you expressly for use in any such
documents.
(b) Each of you, severally, will 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 the Registration Statement, the Prospectus, any Prospectus
Supplement and any other prospectus relating to the Notes, 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 the Registration
Statement, the Prospectus, any Prospectus Supplement and any other prospectus
relating to the Notes, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by each of
you, respectively, 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.
(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 (except and
only to the extent that it has been prejudiced in any material respect by such
failure to notify) 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 may 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
18
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. Any losses, claims, damages or
liabilities for which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages or liabilities are incurred.
In no event shall the indemnifying party be liable for fees and expenses for
more than one counsel separate from their own counsel for all indemnified
parties in connection with any one action or related actions in the same
jurisdiction arising out of the same allegations or circumstances unless any
such indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to or in conflict with those available to the other indemnified
parties and in the judgment of such counsel it is advisable for such indemnified
party to employ separate counsel. An indemnifying party will not, without the
prior written consent of the indemnified party, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim, action, suit or proceeding) unless such
settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability arising out of such claim, action, suit or
proceeding 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 you on the other
from the offering of the Notes, as well as other equitable considerations,
including relative fault in connection with the statements or omissions which
resulted in such losses, claims damages or liabilities. The relative benefits
received by the Company on the one hand and the Agents on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes received by the Company bear to the total discounts and commissions
received by you. 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 you 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 you agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if you 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
19
defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. In connection with an offering of Notes purchased from the
Company by two or more Agents as principal, the respective obligations of such
Agents to contribute pursuant to this Section 8(d) are several, and not joint,
in proportion to the aggregate principal amount of Notes that each Agent has
agreed to purchase from the Company.
(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 any of
you within the meaning of the Act or the Exchange Act; and the obligations of
you under this Section 8 shall be in addition to any liability which you may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act or the Exchange Act.
9. Termination. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the third paragraph of Section 2(a), Section 4(d), Section 4(h), Section 8 and
Section 10 and, so long as any Purchaser continues to own Notes, subsections
(a), (b) and (c) of Section 4.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior to
delivery of any payment for Notes to be purchased thereunder, if prior to such
time (i) the Purchaser shall exercise its right to refuse to purchase the Notes
which are the subject of such Terms Agreement in accordance with the provisions
of Section 7, or (ii) there shall have occurred any outbreak or escalation of
hostilities or other national or international calamity or crisis, the effect of
which shall be such as to make it, in the reasonable judgment of the Purchaser,
impractical to market the Notes or enforce contracts for the sale of the Notes,
or (iii) trading in any securities of the Company shall have been suspended by
the Commission or a national securities exchange, or if trading generally on
either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading shall have been fixed,
or maximum ranges for prices for securities shall have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium shall have been declared by either Federal
or New York authorities, or (iv) if the rating assigned by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) to the Notes or any other debt securities of the Company
as of the date of the applicable Terms Agreement shall have been lowered since
that date or if any such rating agency shall have publicly announced that it has
placed the Notes or any other debt securities of the Company on what is commonly
termed a "watch list" for possible downgrading, or (v) the subject matter of any
amendment or supplement to the Registration Statement or the Prospectus prepared
and issued by the Company, or the exceptions set forth in any letter of
20
PricewaterhouseCoopers LLP furnished pursuant to Section 5(e) hereof, shall have
made it, in the judgment of the Purchaser, impracticable or inadvisable to
market the Notes or enforce contracts for the sale of the Notes.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of the third paragraph of Section 2(a) and
Sections 4(d), 4(h) and 8 hereof shall survive the termination or cancellation
of this Agreement; provided, however, that if at the time of such termination or
cancellation any Purchaser continues to own Notes, the provisions of subsections
(a), (b) and (c) of Section 4 shall also survive such termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to any of you, will be mailed, delivered or
telegraphed and confirmed to such of you, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000-0000,
Attention: Treasurer.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you in accordance with its terms.
Very truly yours,
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
By:______________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
written above.
_________________________________
By:______________________________
Title:
_________________________________
By:______________________________
Title:
_________________________________
By:______________________________
Title:
22
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
---- ---------------
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years up to and including 30 years .750%
Address for Notice to You:
[Notices to _______________ shall be directed to it at ________________________.
Notices to ________________ shall be directed to it at ________________________.
Notices to _______________________ shall be directed to it at
__________________________.]
EXHIBIT A
Central Xxxxxx Gas & Electric Corporation
Medium-Term Notes, Series __
Administrative Procedures
Medium-Term Notes, Series __ (the "Notes"), are to be offered on a
continuing basis by Central Xxxxxx Gas & Electric Corporation (the "Company") in
an aggregate principal amount of up to $___,000,000. ______________________,
_________________ and _________________, as agents (each an "Agent" and
collectively the "Agents"), have agreed to use their reasonable best efforts to
solicit offers to purchase the Notes. The Notes are being sold pursuant to a
Distribution Agreement between the Company and the Agents dated _________ __,
____ (the "Distribution Agreement"), to which these administrative procedures
are attached as an exhibit.
The Notes will be issued under the Company's Indenture, dated as of April
1, 1992 (the "Indenture"), to U.S. Bank Trust National Association (formerly
known as First Trust of New York, National Association) ("U.S. Bank Trust"), as
successor to Xxxxxx Guaranty Trust Company of New York, as trustee (the
"Trustee"). U.S. Bank Trust will act as the paying agent (the "Paying Agent")
for the payment of principal and premium, if any, and interest on the Notes and
will perform, as the Paying Agent, unless otherwise specified, the other duties
specified herein.
The Notes will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Notes have been registered with
the Securities and Exchange Commission (the "Commission") and may bear interest
at fixed rates or, if issued at a discount, may not bear interest.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to U.S. Bank Trust, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a person
designated by such holder (a "Certificated Note"). Except as set forth in the
Prospectus (as defined in Section 1(c) of the Distribution Agreement), (i) each
Note will be initially issued as a Book-Entry Note and (ii) an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Book-Entry Notes will be issued in accordance with
the administrative procedures set forth in Part I hereof and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Administrative procedures applicable to both Book-Entry Notes
and Certificated Notes are set forth in Part III hereof. Administrative
responsibilities, document
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control and record-keeping functions will be handled for the Company by its
Controller or Treasurer. The Company will promptly advise the Agents and the
Trustee in writing of those persons handling administrative responsibilities
with whom the Agents and the Trustee are to communicate regarding offers to
purchase Notes and the details of their delivery.
To the extent the procedures set forth below conflict with the provisions
of the Notes, the Indenture or the Distribution Agreement, the relevant
provisions of the Notes, the Indenture and the Distribution Agreement shall
control. Unless otherwise defined herein, terms defined in the Indenture shall
be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, U.S. Bank Trust will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations to be delivered from the Company and U.S. Bank Trust to DTC and
a Medium-Term Note Certificate Agreement between U.S. Bank Trust National
Association (under its then name First Trust, National Association) and DTC,
dated as of _________ ____, ____ (the "MTN Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without
coupons (a "Global Security") representing up to
$___,000,000 aggregate principal amount of all
such Notes that have the same date of maturity
("Maturity Date"), redemption provisions, if
any, provisions for the repayment or purchase by
the Company at the option of the Holder, if any,
Interest Payment Dates, Original Issue Date, and
interest rate (in each case, and for all
purposes of these administrative procedures, as
defined in the Prospectus) (as defined in
Section 1(c) of the Distribution Agreement)
(collectively, the "Terms"). Each Global
Security will be dated and issued as of the date
of its authentication by the Trustee. No Global
Security will represent any Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc. (the
"CUSIP Service Bureau") for the reservation of
one series of CUSIP numbers (including tranche
numbers), which series consists of approximately
900 CUSIP numbers and relates to Global
Securities representing the Book-Entry Notes and
previously issued Medium-Term Notes of the
Company. The Company has obtained from the CUSIP
Service Bureau a written list of such series of
reserved CUSIP numbers and has delivered to
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DTC and the Trustee a written list of 900 CUSIP
numbers of such series. The Company will assign
CUSIP numbers to Global Securities as described
below under Settlement Procedure "B". It is
expected that DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that
the Company has assigned to Global Securities.
At any time when fewer than 100 of the reserved
CUSIP numbers of the series remain unassigned to
Global Securities, the Trustee shall so advise
the Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers
for assignment to Global Securities representing
Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Company shall deliver a list
of such additional CUSIP numbers to the Trustee
and DTC.
Registration: Each Global Security will be registered in the
name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the
Indenture. It is expected that the beneficial
owner of a Book-Entry Note (or one or more
indirect participants in DTC designated by such
owner) will designate one or more participants
in DTC (with respect to such Note, the
"Participants") to act as agent or agents for
such owner in connection with the book-entry
system maintained by DTC, and it is expected
that DTC will record in book-entry form, in
accordance with instructions provided by such
Participants, a credit balance with respect to
such beneficial owner in such Note in the
account of such Participants. The ownership
interest of such beneficial owner in such Note
will be recorded through the records of such
Participants or through the separate records of
such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and, in
turn, by Participants (and in certain cases, one
or more indirect participants in DTC) acting on
behalf of beneficial transferees and transferors
of such Note.
Consolidations: Upon receipt of written instructions from the
Company, U.S. Bank Trust may deliver to DTC and
the CUSIP Service Bureau at any time a written
notice of consolidation (a copy of which shall
be attached to the resulting Global Security)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent
Book-Entry Notes having the same Terms and for
which interest has been paid to the same date,
(ii) a date, occurring at least thirty days
after such written notice is delivered and at
least thirty days before the next Interest
Payment Date for such Book-Entry Notes, on which
such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a
new CUSIP
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number to be assigned to such replacement Global
Security. Upon receipt of such a notice, it is
expected that DTC will send to its participants
(including U.S. Bank Trust) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, U.S. Bank Trust will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the
new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be
valid. On the specified exchange date, U.S. Bank
Trust will exchange such Global Securities for a
single Global Security bearing the new CUSIP
number, and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP
Service Bureau procedures, be canceled and not
reassigned until the Book-Entry Notes
represented by such exchanged Global Securities
have matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a date not
less than one year nor more than 30 years after
the date of settlement for such Note.
Denominations: Book-Entry Notes will be issued in principal
amounts of $1,000 or any amount in excess
thereof that is an integral multiple of $1,000.
Global Securities will be denominated in
principal amounts not in excess of $___,000,000.
Interest: General. Interest on each Book-Entry Note will
accrue from and including the original issue
date of, or the last date to which interest has
been paid on, the Global Security representing
such Note. Each payment of interest on a
Book-Entry Note will include interest accrued to
but excluding the Interest Payment Date or the
Maturity Date or, upon earlier redemption or
repayment, the date of such redemption or
repayment (the "Redemption Date"), as the case
may be. Interest payable on the Maturity Date or
the Redemption Date of a Book-Entry Note will be
payable to the person to whom the principal of
such Note is payable. Standard & Poor's Rating
Services, a division of The XxXxxx-Xxxx
Companies, Inc. will use the information
received in the pending deposit message
described under Settlement Procedure "C" below
in order to include the amount of any interest
payable and certain other information regarding
the related Global Security in the appropriate
weekly bond report published by Standard &
Poor's Corporation.
Record Dates. The record date with respect to
any Interest Payment Date shall be the February
15 or August 15, as the case
A-4
may be (whether or not a Business Day)
immediately preceding such Interest Payment Date
(each a "Regular Record Date").
Interest Payment Dates. Interest payments on
Book-Entry Notes will be made semi-annually on
March 1 and September 1 of each year and on the
Maturity Date or the Redemption Date; provided,
however, that in the case of a Book-Entry Note
issued between a Regular Record Date and an
Interest Payment Date, the first interest
payment will be made on the Interest Payment
Date following the next succeeding Regular
Record Date.
Payments of Principal Payment of Interest Only. Promptly after each
and Interest: Regular Record Date, the Paying Agent will
deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of
interest to be paid on each Global Security on
the following Interest Payment Date (other than
an Interest Payment Date coinciding with the
Maturity Date) and the total of such amounts. It
is expected that DTC will confirm the amount
payable on each Global Security on such Interest
Payment Date by reference to the appropriate
(daily or weekly) bond reports published by
Standard & Poor's Corporation. The Company will
pay to the Paying Agent the total amount of
interest due on such Interest Payment Date
(other than on the Maturity Date), and the
Paying Agent will pay such amount to DTC at the
times and in the manner set forth under "Manner
of Payment" below. If any Interest Payment Date
for a Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the
next succeeding Business Day, and no interest
shall accrue on such payment for the period from
and after such Interest Payment Date.
Payments on Maturity Date, Etc. On or about the
first Business Day of each month, the Paying
Agent will deliver to the Company and DTC a
written list of principal and, to the extent
known at such time, interest to be paid on each
Global Security maturing either on the Maturity
Date or the Redemption Date in the following
month. The Company and DTC will confirm with the
Paying Agent the amounts of such principal and
interest payments with respect to each such
Global Security on or about the fifth Business
Day preceding the Maturity Date or the
Redemption Date, as the case may be, of such
Global Security. The Company will pay to the
Paying Agent the principal amount of such Global
Security, together with interest due on such
Maturity Date or Redemption Date in the manner
set forth below under "Manner of Payment". The
Paying Agent will pay such amounts to DTC at the
times and in the manner set forth below under
"Manner of Payment". If the Maturity Date or the
Redemption Date of a Global Security
A-5
representing Book-Entry Notes is not a Business
Day, the payment due on such day shall be made
on the next succeeding Business Day, and no
interest shall accrue on such payment for the
period from and after such Maturity Date or the
Redemption Date. Promptly after payment to DTC
of the principal and interest due at the
Maturity Date or the Redemption Date of such
Global Security, the Paying Agent will cancel
such Global Security in accordance with the
terms of the Indenture.
Manner of Payment. The total amount of any
principal and interest due on Global Securities
on any Interest Payment Date or on the Maturity
Date or the Redemption Date shall be paid by the
Company to the Paying Agent in immediately
available funds for use by the Paying Agent no
later than 9:30 A.M. (New York City time) on
such date. The Company will make such payment on
such Global Securities by wire transfer to the
Paying Agent or by the Paying Agent's debiting
the account of the Company maintained with the
Paying Agent. The Company will confirm such
instructions in writing to the Paying Agent.
Prior to 10:00 A.M. (New York City time) on each
Maturity Date or Redemption Date or as soon as
reasonably possible thereafter, the Paying Agent
will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously agreed to with DTC) to an account at
the Federal Reserve Bank of New York previously
agreed to with DTC, in funds available for
immediate use by DTC, each payment of principal
(together with interest thereon) due on Global
Securities on any Maturity Date or Redemption
Date. On each Interest Payment Date, interest
payments shall be made to DTC in same day funds
in accordance with existing arrangements between
the Paying Agent and DTC. Thereafter, on each
such date, it is expected that DTC will pay, in
accordance with its SDFS operating procedures
then in effect, such amounts in funds available
for immediate use to the respective Participants
in whose names the Book-Entry Notes represented
by such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the
Company nor the Paying Agent shall have any
responsibility or liability for the payment by
DTC to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry Note
will be determined and withheld by the
Participant, indirect participant in DTC or
other person responsible for forwarding payments
and materials directly to the beneficial owner
of such Note.
A-6
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
and the authentication and issuance of the
Global Security representing such Note shall
constitute "settlement" with respect to such
Note. All orders accepted by the Company will be
settled on the third Business Day following the
date of sale of a Book-Entry Note unless the
Company, the Trustee and the purchaser agree to
settlement on another day that shall be no
earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company through an
Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by
telephone, followed by facsimile
transmission, of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. The interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any, or
provisions for the repayment or
purchase by the Company at the option
of the Holder, if any.
6. Settlement date.
7. Issue price.
8. Agent's commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
B. The Company will assign a CUSIP number to
such Book-Entry Note and will advise U.S.
Bank Trust by facsimile transmission or
other mutually acceptable means of the
information set forth in Settlement
Procedure "A" above, the name of such Agent
and the CUSIP number assigned to such
Book-Entry Note. The Company will notify the
Agent of such CUSIP number by telephone as
soon as practicable. Each such communication
by the Company shall constitute a
representation and warranty by the Company
to U.S. Bank Trust and each Agent that (i)
such Note is then, and at the time of
issuance and sale thereof will be, duly
authorized for issuance and sale by the
Company, (ii) the Global Security
A-7
representing such Note will conform with the
terms of the Indenture pursuant to which
such Note and Global Security are issued and
(iii) upon authentication and delivery of
such Global Security, the aggregate
principal amount of all Notes initially
offered issued under the Indenture will not
exceed $___,000,000 (except for Global
Securities or Notes represented by and
authenticated and delivered in exchange for
or in lieu of Notes in accordance with the
Indenture).
C. U.S. Bank Trust will enter a pending deposit
message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, which shall route such
information to such Agent and Standard &
Poor's Rating Services, a division of The
XxXxxx-Xxxx Companies, Inc.:
1. The information set forth in
Settlement Procedure "A".
2. Identification of such Note as a fixed
rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such
date succeeds the related Regular
Record Date (which shall be the
Regular Record Date as defined in the
Note) and amount of interest payable
on such Interest Payment Date.
4. CUSIP number of the Global Security
representing such Note.
5. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. The Trustee will complete and authenticate
the Global Security representing such Note.
E. It is expected that DTC will credit such
Note to U.S. Bank Trust's participant
account at DTC.
F. U.S. Bank Trust will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to U.S. Bank Trust's participant
account and credit such Note to such Agent's
participant account and (ii) debit such
Agent's settlement account and credit U.S.
Bank Trust's settlement account for an
amount equal to the price of such Note less
such Agent's commission. The entry of such a
deliver order shall constitute a
representation and warranty
A-8
by U.S. Bank Trust to DTC that (a) the
Global Security representing such Book-Entry
Note has been issued and authenticated and
(b) U.S. Bank Trust is holding such Global
Security pursuant to the MTN Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
such Agent's participant account and credit
such Note to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the settlement
account of such Agent for an amount equal to
the price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
I. U.S. Bank Trust will, upon confirming
receipt of such funds from the Agent, wire
transfer to the account of the Company
maintained at The Bank of Xxx Xxxx, Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (for credit
to Central Xxxxxx Gas & Electric
Corporation, The Bank of New York - Special
Acct. #__, ABA Routing No.: _________
Account No. _________) in immediately
available funds in the amount transferred to
U.S. Bank Trust in accordance with
Settlement Procedure "F". Promptly upon
completion of such wire transfer, U.S. Bank
Trust shall notify the Company thereof by
telephone (Attn. _________, Tel. No.
_________, or such other person or telephone
number, as the Company shall request of U.S.
Bank Trust).
J. Such Agent will confirm the purchase of such
Note to the purchaser either by transmitting
to the Participants with respect to such
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
Settlement Procedures For orders of Book-Entry Notes solicited by an
Timetable: Agent, as agent, and accepted by the Company for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as
possible but not later than the respective times
(New York City time) set forth below:
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Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 5:00 P.M. on the sale date
D 3:00 P.M. on the sale date
E 8:05 A.M. on the settlement date
F-G 3:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be completed
as soon as practicable but no later than 11:00
A.M. and 12:00 Noon on the first Business Day
after the sale date with respect to Settlement
Procedures "A" and "B", respectively, and no
later than 5:00 P.M. on the first Business Day
after the sale date, with respect to Settlement
Procedure "C". Settlement Procedure "D" shall
occur no later than 3:00 P.M. on the last
Business Day prior to the settlement date.
Settlement Procedures "H" and "I" are subject to
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Company will
instruct U.S. Bank Trust by no later than 12:00
Noon on the Business Day immediately preceding
the scheduled settlement date to deliver to DTC
through DTC's Participant Terminal System a
cancellation message to such effect and U.S.
Bank Trust will enter such message, by no later
than 2:00 P.M. on such Business Day, through
DTC's Participation Terminal System.
Monthly Reports: Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indenture and setting forth a brief description
of any sales of which the Company has advised
the Trustee but which have not yet been settled.
Failure to Settle: If U.S. Bank Trust or the Agent fails to enter
an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure
"F" or "G," U.S. Bank Trust may upon the
approval of the Company deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing
DTC to debit such Note to U.S. Bank Trust's
participant account, provided that U.S. Bank
Trust's participant account contains a
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principal amount of the Global Security
representing such Note that is at least equal to
the principal amount to be debited. If a
withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, U.S. Bank Trust will xxxx such Global
Security "canceled", make appropriate entries in
U.S. Bank Trust's records and send such canceled
Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures,
be canceled and not reassigned until the
Book-Entry Notes represented by such Global
Security have matured or been redeemed. If a
withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry
Notes represented by a Global Security, U.S.
Bank Trust will exchange such Global Security
for another Global Security, which shall
represent the Book-Entry Notes previously
represented by the surrendered Global Security
with respect to which a withdrawal message has
not been processed and shall bear the CUSIP
number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant
in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the Agent for
such Note may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures
"G" and "F", respectively. Thereafter, U.S. Bank
Trust will deliver the withdrawal message and
take the related actions described in the
preceding paragraph. If such failure shall have
occurred for any reason other than a default by
the Agent in the performance of its obligations
hereunder or under the Distribution Agreement,
then the Company will reimburse such Agent or
U.S. Bank Trust, for the account of such Agent,
as applicable, on an equitable basis for the
loss of the use of funds during the period when
they were credited to the account of the
Company.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect. In the
event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to
have been represented by a Global Security, the
Trustee will provide, in accordance with
Settlement Procedure "D," for the authentication
and issuance of a Global Security representing
the other Book-Entry Notes to have been
represented by such Global Security and will
make appropriate entries in its records.
A-11
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
U.S. Bank Trust will serve as registrar in connection with the
Certificated Notes.
Maturities: Each Certificated Note will mature on a date not
less than one year and not more than 30 years
after the date of delivery by the Company of
such Note.
Price to Public: Each Certificated Note will be issued at the
percentage of principal amount specified in the
Prospectus relating to the Notes.
Denominations: The denomination of any Certificated Note will
be a minimum of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000.
Registration: Certificated Notes will be issued only in fully
registered form.
Interest: General. Interest on each Certificated Note will
accrue from and including the original issue
date of, or the last date to which interest has
been paid on, such Note. Each payment of
interest on a Certificated Note will include
interest accrued to but excluding the Interest
Payment Date or the Maturity Date or, upon
earlier redemption, the Redemption Date, as the
case may be. Interest payable on the Maturity
Date or the Redemption Date of a Certificated
Note will be payable to the person to whom the
principal of such Note is payable.
Record Dates. Unless otherwise set forth in the
applicable Pricing Supplement, the record dates
with respect to the Interest Payment Dates shall
be the Regular Record Dates.
Interest Payment Date. Unless otherwise
specified pursuant to "Settlement Procedures"
below, interest payments on Certificated Notes
will be made semi-annually on March 1 and
September 1 and on the Maturity Date or the
Redemption Date; provided, however, that in the
case of a Certificated Note issued between a
Regular Record Date and an Interest Payment
Date, the first interest payment will be made on
the Interest Payment Date following the next
succeeding Regular Record Date.
Payments of Principal Interest will be payable to the person in whose
and Interest: name a Certificated Note is registered at the
close of business on the Regular Record Date
next preceding an Interest Payment Date;
provided, however, that, in the case of a
Certificated Note originally issued between a
Regular Record Date and an Interest Payment
Date, the first payment of interest will be made
on the Interest Payment Date following the next
succeeding Regular Record Date to the person
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in whose name such Note was registered at the
close of business on such next Regular Record
Date. Unless other arrangements are made
acceptable to the Company, all interest payments
(excluding interest payments made on the
Maturity Date or the Redemption Date) on a
Certificated Note will be made by check mailed
to the person entitled thereto as provided
above.
U.S. Bank Trust will pay the principal amount of
each Certificated Note on the Maturity Date upon
presentation of such Certificated Note to U.S.
Bank Trust at the principal corporate trust
office of U.S. Bank Trust in New York, New York.
Such payment, together with payment of interest
due on the Maturity Date, will be made from
funds deposited with U.S. Bank Trust by the
Company.
U.S. Bank Trust will be responsible for
compliance with withholding taxes on interest
paid on Certificated Notes by it as required by
applicable federal law.
Within 10 days following each Regular Record
Date, the Trustee will inform the Company of the
total amount of the interest payments to be made
by the Company on the next succeeding Interest
Payment Date. The Trustee will provide monthly
to the Company a list of the principal and
interest to be paid on Certificated Notes
maturing in the next succeeding month.
Settlement: The settlement date with respect to any offer to
purchase Certificated Notes accepted by the
Company will be a date on or before the third
Business Day next succeeding the date of
acceptance unless otherwise agreed by the
purchaser, the Trustee and the Company and shall
be specified upon acceptance of such offer. The
Company will instruct the Trustee to effect
delivery of each Certificated Note no later than
1:00 P.M. (New York City time) on the settlement
date to the Presenting Agent (as defined under
"Preparation of Pricing Supplement" in Part III
below) for delivery to the purchaser.
Settlement Procedures: For each offer to purchase a Certificated Note
that is accepted by the Company, the Presenting
Agent will provide (unless provided by the
purchaser directly to the Company) by telephone
and facsimile transmission or other mutually
acceptable means the following information to
the Company:
1. Name in which such Note is to be registered
(the "Registered Owner").
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2. Address of the Registered Owner and, if
different, address for payment of principal
and interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
5. Maturity Date.
6. The interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any, or provisions
for the repayment or repurchase by the
Company at the option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as provided
in Section 2(a) of the Distribution
Agreement.
The Presenting Agent will advise the Company of
the foregoing information (unless provided by
the purchaser directly to the Company) for each
offer to purchase a Certificated Note solicited
by such Agent and accepted by the Company in
time for the Trustee to prepare and authenticate
the required Certificated Note. Before accepting
any offer to purchase a Certificated Note to be
settled in less than three Business Days, the
Company shall verify that the Trustee will have
adequate time to prepare and authenticate such
Note. After receiving from the Presenting Agent
the details for each offer to purchase a
Certificated Note that has been accepted by the
Company, the Company will, after recording the
details and any necessary calculations, provide
appropriate documentation to the Trustee,
including the information provided by the
Presenting Agent necessary for the preparation
and authentication of such Note.
Note Deliveries Upon receipt of appropriate documentation and
and Cash Payment: instructions, the Company will cause the Trustee
to prepare and authenticate the pre-printed
4-ply Certificated Note packet containing the
following documents in forms approved by the
Company, the Presenting Agent and the Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
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3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on
the settlement date therefor. The Trustee will
authenticate each Certificated Note and deliver
it (with the confirmation) to the Presenting
Agent (and deliver the stubs as indicated
above), all in accordance with written or
electronic instructions (or oral instructions
confirmed in writing (which may be given by
facsimile transmission) on the next Business
Day) from the Company. Delivery by the Trustee
of each Certificated Note will be made in
accordance with said instructions against
receipts therefor and in connection with
contemporaneous receipt by the Company from the
Presenting Agent on the settlement date in
immediately available funds of an amount equal
to the issue price of such Note less the
Presenting Agent's commission.
Upon verification ("Verification") by the
Presenting Agent that a Certificated Note has
been prepared and properly authenticated by the
Trustee and registered in the name of the
purchaser in the proper principal amount and
other terms in accordance with the
aforementioned confirmation, payment will be
made to the Company by the Presenting Agent the
same day as the Presenting Agent's receipt of
the Certificated Note in immediately available
funds. Such payment shall be made by the
Presenting Agent only upon prior receipt by the
Presenting Agent of immediately available funds
from or on behalf of the purchaser unless the
Presenting Agent decides, at its option, to
advance its own funds for such payment against
subsequent receipt of funds from the purchaser.
Upon delivery of a Certificated Note to the
Presenting Agent, Verification by the Presenting
Agent and the giving of instructions for
payment, the Presenting Agent shall promptly
deliver such Note to the purchaser.
In the event any Certificated Note is
incorrectly prepared, the Trustee shall promptly
issue a replacement Certificated Note in
exchange for such incorrectly prepared Note.
Failure to Settle: If the Presenting Agent, at its own option, has
advanced its own funds for payment against
subsequent receipt of funds from the purchaser,
and if the purchaser shall fail to make payment
for the Certificated Note on the settlement date
therefor, the Presenting Agent will promptly
notify the Trustee and the Company by telephone,
promptly confirmed in writing (but no later than
the
A-15
next Business Day). In such event, the Company
shall promptly provide the Trustee with
appropriate documentation and instructions
consistent with these procedures for the return
of the Certificated Note to the Trustee and the
Presenting Agent will promptly return the
Certificated Note to the Trustee. Upon (i)
confirmation from the Trustee in writing (which
may be given by facsimile transmission) that the
Trustee has received the Certificated Note and
upon (ii) confirmation from the Presenting Agent
in writing (which may be given by facsimile
transmission) that the Presenting Agent has not
received payment from the purchaser (the matters
referred to in clauses (i) and (ii) are referred
to hereinafter as the "Confirmations"), the
Company will promptly pay to the Presenting
Agent an amount in immediately available funds
equal to the amount previously paid by the
Presenting Agent in respect of such Note.
Assuming receipt of the Certificated Note by the
Trustee and of the Confirmations by the Company,
such payment will be made on the settlement
date, if reasonably practical, and in any event
not later than the Business Day following the
date of receipt of the Certificated Note and
Confirmations. If a purchaser shall fail to make
payment for the Certificated Note for any reason
other than the failure of the Presenting Agent
to provide the necessary information to the
Company as described above for settlement or to
provide a confirmation to the purchaser within a
reasonable period of time as described above or
otherwise to satisfy its obligation hereunder or
in the Distribution Agreement, and if the
Presenting Agent shall have otherwise complied
with its obligations hereunder and in the
Distribution Agreement, the Company will
reimburse the Presenting Agent on an equitable
basis for its loss of the use of funds during
the period when they were credited to the
account of the Company.
Immediately upon receipt of the Certificated
Note in respect of which the failure occurred,
the Trustee will void such Note, make
appropriate entries in its records and send such
cancelled Note to the Company; and upon such
action, the Certificated Note will be deemed not
to have been issued, authenticated and
delivered.
A-16
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH BOOK-ENTRY NOTES AND
CERTIFICATED NOTES
Calculation of Interest: Interest on Notes (including interest for
partial periods) will be calculated on the basis
of a 360-day year of twelve thirty-day months.
(Examples of interest calculations are as
follows: The period from August 15, 1990 to
February 15, 1991 equals 6 months and 0 days, or
180 days; the interest payable equals 180/360
times the annual rate of interest times the
principal amount of the Note. The period from
September 17, 1990 to February 15, 1991 equals 4
months and 28 days, or 148 days; the interest
payable equals 148/360 times the annual rate of
interest times the principal amount of the
Note.)
Procedure for Rate The Company and the Agents will discuss from
Setting and Posting: time to time the aggregate amount of, the
issuance price of, and the interest rates to be
borne by, Notes that may be sold as a result of
the solicitation of offers by the Agents. If the
Company decides to set prices of, and rates
borne by, any Notes in respect of which the
Agents are to solicit offers (the setting of
such prices and rates to be referred to herein
as "posting") or if the Company decides to
change prices or rates previously posted by it,
it will promptly advise the Agents of the prices
and rates to be posted.
Acceptance of Offers: If the Company posts prices and rates as
provided above, each Agent as agent for and on
behalf of the Company, shall promptly accept
offers received by such Agent to purchase Notes
at the prices and rates so posted, subject to
(i) any instructions from the Company received
by such Agent concerning the aggregate principal
amount of such Notes to be sold at the prices
and rates so posted or the period during which
such posted prices and rates are to be in
effect, (ii) any instructions from the Company
received by such Agent changing or revoking any
posted prices and rates, (iii) compliance with
the securities laws of the United States and all
other jurisdictions and (iv) such Agent's right
to reject any such offer as provided below.
If the Company does not post prices and rates
and an Agent receives an offer to purchase Notes
or, if while posted prices and rates are in
effect, an Agent receives an offer to purchase
Notes on terms other than those posted by the
Company, such Agent will promptly advise the
Company of each such offer other than offers
rejected by such Agent as provided below. The
Company will have the sole right to accept any
such offer to purchase Notes. The Company may
reject any such offer in whole or in part.
A-17
Each Agent may, in its discretion reasonably
exercised, reject any offer to purchase Notes
received by it in whole or in part.
Preparation of If any offer to purchase a Note is accepted by
Pricing Supplement: the Company, the Company, with the approval of
the Agent that presented such offer (the
"Presenting Agent"), will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note and will arrange to have
a copy electronically filed with the Commission
in accordance with the applicable paragraph of
Rule 424 under the Act and the provision of
Regulation S-T thereunder and will supply at
least 10 copies thereof (or additional copies if
requested) to the Presenting Agent. The
Presenting Agent will cause a Prospectus and
Pricing Supplement to be delivered to the
purchaser of such Note.
In each instance that a Pricing Supplement is
prepared, the Agents will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Procedures for When the Company has determined to change the
Rate Changes: interest rates of Notes being offered, it will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers. The
Agents will telephone the Company with
recommendations as to the changed interest
rates. At such time as the Company has advised
the Agents of the new interest rates, the Agents
may resume solicitation of offers. Until such
time only "indications of interest" may be
recorded.
Suspension of Solicitation; The Company may instruct the Agents to suspend
Amendment or Supplement at any time, for any period of time or
of Prospectus: permanently, the solicitation of offers to
purchase Notes. Upon receipt of such
instructions from the Company, the Agents will
forthwith suspend solicitation of offers to
purchase Notes from the Company until such time
as the Company has advised them that such
solicitation may be resumed.
If the Company decides to amend or supplement
the Registration Statement (as defined in
Section 1(c) of the Distribution Agreement) or
the Prospectus (except for a supplement relating
to an offering of securities other than the
Notes), it will promptly advise the Agents and
the Trustee and will furnish the Agents and the
Trustee with the proposed amendment or
supplement in accordance with the terms of, and
its obligations under, the Distribution
Agreement. The Company will, consistent with
such obligations, promptly advise each Agent and
the Trustee whether orders outstanding at the
time each Agent suspends solicitation
A-18
may be settled and whether copies of such
Prospectus and Prospectus Supplement as in
effect at the time of the suspension, together
with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of
such orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event that
the Company determines that such orders may not
be settled or that copies of such Prospectus,
Prospectus Supplement and Pricing Supplement may
not be so delivered.
The Company will file with the Commission for
filing therewith any supplement to the
Prospectus relating to the Notes, provide the
Agents with copies of any such supplement, and
confirm to the Agents that such supplement has
been filed with the Commission pursuant to the
applicable paragraph of Rule 424.
Confirmation: For each offer to purchase a Note solicited by
an Agent and accepted by or on behalf of the
Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to
the Company, setting forth the details set forth
above and delivery and payment instructions.
Trustee/Paying Agent Nothing herein shall be deemed to require the
Not to Risk Funds: Trustee or Paying Agent to risk or expend its
own funds in connection with any payment to the
Company, DTC, the Agents or the purchaser or a
holder, it being understood by all parties that
payments made by the Trustee/Paying Agent to the
Company, DTC, the Agents or a purchaser or
holder shall be made only to the extent that
funds are provided to the Trustee/Paying Agent
for such purpose.
Authenticity The Company will cause the Trustee to furnish
of Signatures: the Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has been authorized by
the Trustee to authenticate Notes, but the
Agents will have no obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the Company or the Trustee
on any such Note.
Payment of Expenses: Each Agent shall forward to the Company, on a
monthly basis, a statement of the reasonable
out-of-pocket expenses incurred by such Agent
during that month which are reimbursable to it
pursuant to the terms of the Distribution
Agreement. The Company will remit payment to the
Agents currently on a monthly basis.
A-19
Delivery of Prospectus: A copy of the Prospectus, Prospectus Supplement
and Pricing Supplement relating to a Note must
accompany or precede the earliest of any written
offer of such Note, confirmation of the purchase
of such Note or payment for such Note by its
purchaser. If notice of a change in the terms of
the Notes is received by an Agent between the
time an order for a Note is placed and the time
written confirmation thereof is sent by such
Agent to a customer or his agent, such
confirmation shall be accompanied by a
Prospectus, Prospectus Supplement and Pricing
Supplement setting forth the terms in effect
when the order was placed. Subject to
"Suspension of Solicitation; Amendment or
Supplement of Prospectus" above, each Agent will
deliver a Prospectus, Prospectus Supplement and
Pricing Supplement as herein described with
respect to each Note sold by it.
A-20
EXHIBIT B
TERMS AGREEMENT
Central Xxxxxx Gas & Electric Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000-0000
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Distribution Agreement"), dated _____ __, _____ among
__________________, __________________, ____________________ and Central Xxxxxx
Gas & Electric Corporation (the "Company"), the undersigned agrees to purchase
the following principal amount of the Company's $__,000,000 Medium-Term Notes,
Series __ (the "Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount [plus accrued interest from
___________________, 200_]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
B-1
Modification, if any, in the requirements
to deliver the documents specified in
Section 6(b) of the Distribution Agreement:
Period during which additional Notes
may not be sold pursuant to Section 4(m)
of the Distribution Agreement:
Book-Entry Notes or Certificated Notes:
This Agreement shall be governed by and construed in accordance with the
laws of New York.
[Insert name of Purchaser[s]]
By______________________________
Title:
Accepted: _______________, ____
CENTRAL XXXXXX GAS & ELECTRIC
CORPORATION
By_____________________________
Title:
B-2
