ENERGY EAST CORPORATION $250,000,000 6.75% NOTES DUE July 15, 2036 UNDERWRITING AGREEMENT
Exhibit
1.1
ENERGY
EAST CORPORATION
$250,000,000
6.75% NOTES DUE July 15, 2036
July
18,
0000
Xxxx
xx
Xxxxxxx Securities LLC
Wachovia
Capital Markets, LLC
for
themselves and as Representatives for the Underwriters
named
in
Schedule A, attached hereto
c/o Banc
of
America Securities LLC
Hearst
Tower
000
X.
Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Ladies
and Gentlemen:
1. Energy
East Corporation, a corporation duly organized and existing under the laws
of
the State of New York (the "Company"), proposes to issue and sell $250,000,000
aggregate principal amount of 6.75% Notes due July 15, 2036 (the "Securities").
The Company hereby agrees with Banc of America Securities LLC and Wachovia
Capital Markets, LLC (together, the "Representatives"), and each of the other
Underwriters named in Schedule A hereto (collectively, including the
Representatives, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 9 hereof) as
follows:
2. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) a registration statement on Form S-3 (File No. 333-106292), which
contains a base prospectus (the “Base Prospectus”), to be used in connection
with the public offering and sale of certain of the Company’s securities,
including the Securities. Such registration statement, as amended, including
the
financial statements, exhibits and schedules thereto, at each time of
effectiveness under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (collectively, the “Securities Act”),
including any required information deemed to be a part thereof at the time
of
effectiveness pursuant to Rule 430B under the Securities Act or the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the “Exchange Act”), is called the “Registration
Statement.” Any preliminary prospectus supplement to the Base Prospectus that
describes the Securities and the offering thereof and is used prior to filing
of
the Prospectus is called, together with the Base Prospectus, a “preliminary
prospectus.” The term “Prospectus” shall mean the final prospectus supplement,
together with the Base Prospectus, relating to the Securities that is first
filed pursuant to Rule 424(b) after the date and time that this Agreement is
executed and delivered by the parties hereto (the “Execution Time”). Any
reference herein to the Registration Statement, any preliminary prospectus
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 under the
Securities Act; any reference to any amendment or supplement to any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such preliminary prospectus or Prospectus,
as
the case may be, under the Exchange Act, and incorporated by reference in such
preliminary prospectus or Prospectus, as the case may be; and any reference
to
any amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement. All references
in this Agreement to the Registration Statement, a preliminary prospectus,
the
Prospectus, or any amendments or supplements to any of the foregoing, shall
include the versions of such documents filed with the Commission pursuant to
its
Electronic Data Gathering, Analysis and Retrieval System (“XXXXX”).
(b) (i)
At
the time of the most recent amendment thereto for the purposes of complying
with
Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), (ii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the Securities Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 of the Securities Act,
and (iii) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iii)), the Company was and
is a
“well-known seasoned issuer” as defined in Rule 405 of the Securities
Act.
(c) Except
for the order of the Commission with respect to the effectiveness of the
Registration Statement referred to in paragraph (a) above, no consent, approval,
authorization, order, registration or qualification of or with any federal
or
state commission, court or governmental agency or body is required for the
issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the indenture, dated as of August
31, 2000 between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as trustee (the "Trustee"), as supplemented and as to
be
further supplemented by a supplemental indenture relating to the Securities
(the
indenture, as supplemented, the "Indenture"), except such approvals as have
been, or will have been, prior to the Time of Delivery (as defined below),
obtained under the Securities Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution
of
the Securities by the Underwriters; and a copy of the order heretofore entered
by the Commission with respect to the effectiveness of the Registration
Statement has been or will be delivered to Underwriters;
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(d) The
term
“Disclosure Package” shall mean (i) the Base Prospectus, including any
preliminary prospectus supplement, as amended or supplemented, (ii) the issuer
free writing prospectuses as defined in Rule 433 of the Securities Act (each,
an
“Issuer Free Writing Prospectus”), if any, identified in Schedule B hereto,
(iii) any other free writing prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package and (iv)
the Final Term Sheet (as defined in Section 5(f) hereof) which also shall
be identified in Schedule B hereto. As of 1:15 p.m. (Eastern time) on the
date of this Agreement (the “Applicable Time”), the Disclosure Package did not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure Package based
upon and in conformity with written information furnished to the Company by
any
Underwriter through the Representatives specifically for use
therein,
it being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
8(b)
hereof.
(e) The
documents incorporated by reference in the Prospectus and the Disclosure
Package, when they were filed with the Commission, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none
of such documents contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus and the Disclosure Package or any
further amendment or supplement thereto, when such documents are filed with
the
Commission, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading;
(f) The
Registration Statement and the Prospectus conform, and any further amendments
or
supplements to the Registration Statement or the Prospectus will conform, in
all
material respects to the requirements of the Securities Act and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the rules and regulations
of the Commission thereunder and do not and will not, as of the applicable
effective dates as to the Registration Statement and any amendment thereto
and
as of the applicable filing date and the Time of Delivery as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading; provided,
however,
that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing
to
the Company by any Underwriter through the Representatives expressly for use
in
the Prospectus as amended or supplemented, it
being
understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in Section
8(b)
hereof;
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(g) The
consolidated financial statements filed with or as part of the Registration
Statement present fairly the financial position, results of operations and
changes in financial position of the Company and its subsidiaries at the dates
and for the periods indicated, all in conformity with generally accepted
accounting principles in the United States, consistently applied through the
periods involved, and the Company has no material contingent obligation which
is
not disclosed in the Registration Statement and the Prospectus;
(h) Neither
the Company nor any of its subsidiaries has sustained, since the date of the
latest audited financial statements included or incorporated by reference in
the
Prospectus and the Disclosure Package, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, which would result in any material adverse change, or any development
involving a prospective material adverse change in or affecting the general
affairs, management, consolidated financial position, shareholders' equity
or
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus and the Disclosure
Package; and, since the respective dates as of which information is given in
the
Registration Statement, the Prospectus and the Disclosure Package, there has
not
been any change in the capital stock (other than pursuant to the Company's
common stock repurchase program, or its dividend reinvestment and other common
stock or employee benefit plans) or long-term debt of the Company or any of
its
Significant Subsidiaries (as defined below), or any material adverse change,
or
any development involving a prospective material adverse change in, or affecting
the general affairs, management, consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken
as a
whole, otherwise than as set forth or contemplated in the Prospectus and the
Disclosure Package. The term “Significant Subsidiaries” shall have the meaning
as defined in Rule 1-02 of Regulation S-X and shall be deemed to include New
York State Electric & Gas Corporation, Rochester Gas and Electric
Corporation, Central Maine Power Company, Connecticut Natural Gas Corporation
and The Southern Connecticut Gas Company;
(i) Neither
any Issuer Free Writing Prospectus nor the Final Term Sheet, as of its issue
date and at all subsequent times through the completion of the offering or
until
any earlier date that the Company notified or notifies the Representatives
as
described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Prospectus or the Disclosure
Package, including any document incorporated by reference therein that has
not
been superseded or modified. If
at any
time following issuance of an Issuer Free Writing Prospectus there occurred
or
occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Prospectus or the Disclosure Package, including
any
document incorporated by reference therein that has not been superseded or
modified, the Company has promptly notified or will promptly notify the
Representatives and has promptly amended or supplemented or will promptly amend
or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein,
it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(b)
hereof.
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(j) The
Company has not distributed and will not distribute, prior to the later of
the
Time of Delivery and the completion of the Underwriters’ distribution of the
Securities, any offering material in connection with the offering and sale
of
the Securities other than a preliminary prospectus, the Prospectus, any Issuer
Free Writing Prospectus reviewed and consented to by the Representatives and
included in Schedule B hereto or the Registration Statement.
(k) (i)
At
the earliest time after the filing of the Registration Statement relating to
the
Securities that the Company or another offering participant made a bona
fide
offer
(within the meaning of Rule 164(h)(2) of the Securities Act) and (ii) as of
the
Execution Date (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405 of the Securities Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the Securities Act
that
it is not necessary that the Company be considered an Ineligible
Issuer.
(l) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its properties and conduct
its
business as described in the Disclosure Package and the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the
Company and its subsidiaries, taken as a whole;
(m) Each
Significant Subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction
of
its incorporation, has the power and authority (corporate and other) to own
its
property and to conduct its business as described in the Disclosure Package and
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
except as described in the Disclosure Package and the Prospectus, each
Significant Subsidiary of the Company holds all material licenses, certificates
and permits from governmental authorities necessary for the conduct of its
business;
(n) The
Company has an authorized capitalization as set forth in the Disclosure Package
and the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
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(o) All
of
the issued shares of common stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance
or
claim;
(p) This
Agreement has been duly authorized, executed and delivered by the
Company;
(q) The
Securities have been duly authorized, and, when duly executed, authenticated,
issued and delivered, will constitute valid and legally binding obligations
of
the Company, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws or judicial decisions of general applicability relating
to or affecting creditors' rights and to general equity principles (regardless
of whether enforcement is considered in a proceeding at law or in equity) and
entitled to the benefits provided by the Indenture; the Indenture has been
duly
authorized and duly qualified under the Trust Indenture Act and, at the Time
of
Delivery (as defined in Section 4 hereof), the Indenture will constitute a
valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is considered in a proceeding
at
law or in equity); and the Indenture and the Securities conform to the
descriptions thereof contained in the Disclosure Package and the
Prospectus;
(r) The
issue
and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument to which the Company
is a
party or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such action result in any violation of
the
provisions of the Restated Certificate of Incorporation, as amended, or By-laws
of the Company or any statute or any order, rule or regulation of any court
or
governmental agency or body having jurisdiction over the Company or any of
its
properties;
(s) The
statements set forth in the Disclosure Package and the Prospectus under the
captions "Description of Securities—Senior Debt Securities" and "Description of
the Notes," insofar as they purport to constitute a summary of the terms of
the
Securities, and under the captions "Plan of Distribution" and "Underwriting,"
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(t) Neither
the Company nor any of its Significant Subsidiaries is in violation of its
certificate of incorporation or by-laws, or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contracts, indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it
is
bound or to which any of its property or assets is subject;
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(u) Other
than as set forth in the Disclosure Package and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or
any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture or this
Agreement, or are otherwise material in the context of the sale of the
Securities; and, to the best of the Company's knowledge, no such proceedings
are
threatened or contemplated by governmental authorities or threatened by
others;
(v) The
Company is not and, after giving effect to the offering and sale of the
Securities, will not be an "investment company," as such term is defined in
the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(w) PricewaterhouseCoopers
LLP, who has certified certain consolidated financial statements of the Company,
is a registered independent public accounting firm as required by the Securities
Act and the rules and regulations of the Commission thereunder;
(x) Other
than as set forth in the Disclosure Package and the Prospectus, the Company
and
its Significant Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and
(y) There
are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
or to require the Company to include such securities with the Securities
registered pursuant to the Registration Statement.
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(z) The
Company and each of its Significant Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(aa) Except
as
disclosed in the Disclosure Package and the Prospectus since the end of the
Company’s most recent audited fiscal year, there has been (i) no material
weakness in the Company’s internal control over financial reporting, as defined
in Rule 13a-15(f) under the Exchange Act, (whether or not remediated) and (ii)
no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.
3. On
the
basis of the representations, warranties and covenants contained in this
Agreement, and subject to the terms and conditions herein set forth, the Company
agrees to sell to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount
of
Securities set forth in Schedule A hereto opposite to its name at a purchase
price equal to 98.239% of the aggregate principal amount of the
Securities.
The
obligation of the Underwriters to purchase the Securities, at the purchase
price
set forth above, and (notwithstanding any other agreement) the obligations
of
the Underwriters to and amongst themselves, shall be satisfied by Banc of
America Securities LLC delivering $245,597,500 to the Company in exchange for
the Securities. Each Underwriter has authorized Banc of America Securities
LLC
(for such Underwriter's account) to make payment of the purchase price for
the
Securities as set forth in Schedule A in accordance with the procedures set
forth in this paragraph. The several Underwriters propose to offer the
Securities for sale upon the terms and conditions set forth in the
Prospectus.
4. The
Securities to be delivered to the Underwriters hereunder will be represented
by
one or more global certificates in book-entry form which will be deposited
by,
or on behalf of, the Company with, and shall be registered in the name of,
DTC
or its designated custodian. The Company will deliver the Securities to the
Underwriters at the offices of Xxxxx Xxxxxxx LLP, New York, New York, against
payment of the purchase price as specified in Section 3, at 9.30 a.m., New
York
City time, on July 24, 2006 or such other date and time as the Company and
Banc
of America Securities LLC may agree upon in writing (such date and time, the
“Time of Delivery”). The Company will cause the certificates representing the
Securities to be made available to the Underwriters for checking at least twenty
four hours prior to the Time of Delivery at the offices of Xxxxx Peabody
LLP.
5. The
Company covenants and agrees with each of the Underwriters:
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(a) As
soon
as reasonably possible after the execution and delivery of this Agreement,
to
prepare the Prospectus as amended or supplemented in a form approved by the
Representatives, setting forth, among other things, the necessary information
with respect to the terms of the offering of the Securities and file such
Prospectus with the Commission pursuant to Rule 424 under the Securities Act
not
later than the Commission's close of business on the second business day
following the date hereof or, if applicable, such earlier time as may be
required by Rule 424(b); to make any other required filings pursuant to Rule
424(b) or 433 under the Securities Act; to make no further amendment or any
supplement to the Registration Statement, the Disclosure Package or Prospectus
as amended or supplemented after the date hereof and prior to the Time of
Delivery which shall be disapproved by the Representatives promptly after
reasonable notice thereof (other than the filing of any document required to
be
filed under the Exchange Act which upon filing is deemed to be incorporated
by
reference in the Registration Statement, the Disclosure Package or Prospectus);
to advise the Representatives promptly of any such amendment or supplement
after
such Time of Delivery and furnish the Underwriters with copies thereof, to
file
promptly all reports and any definitive proxy or information statements required
to be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities, and during such same period to advise the Underwriters, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement
to
the Prospectus or any amended Prospectus has been filed with the Commission,
of
the issuance by the Commission of any stop order or of any order preventing
or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information;
and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities
or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order;
(b) Promptly
from time to time to take such action as the Representatives may reasonably
request to qualify such Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and to comply
with
such laws so as to permit the continuance of sales and dealings therein in
such
jurisdictions for as long as may be necessary to complete the distribution
of
such Securities, provided that in connection therewith the Company shall not
be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) During
the Prospectus Delivery Period (as defined in Section 5(d) below), to furnish
the Representatives with copies of the Prospectus as amended or supplemented
in
New York City in such quantities as the Representatives may reasonably
request;
(d) During
the period beginning on the Applicable Time and ending on the later of the
Time
of Delivery or such date, as in the opinion of counsel for the Underwriters,
the
Prospectus is no longer required by law to be delivered in connection with
sales
by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior
to amending or supplementing the Registration Statement, the Disclosure Package
or the Prospectus (including any amendment or supplement through incorporation
by reference of any report filed under the Exchange Act),
the
Company shall furnish to the Representatives for review a copy of each such
proposed amendment or supplement, and the Company shall not file or use any
such
proposed amendment or supplement to which the Representatives reasonably
object.
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(e) If,
during the Prospectus Delivery Period, any event or development shall occur
or
condition exist as a result of which the Disclosure Package or the Prospectus
as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein in the light of the circumstances under which they were
made
or then prevailing, as the case may be, not misleading, or if it shall be
necessary to amend or supplement the Disclosure Package or the Prospectus,
or to
file under the Exchange Act any document incorporated by reference in the
Disclosure Package or the Prospectus, in order to make the statements therein,
in the light of the circumstances under which they were made or then prevailing,
as the case may be, not misleading, or if in the opinion of the Representatives
it is otherwise necessary to amend or supplement the Registration Statement,
the
Disclosure Package or the Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Disclosure Package or the Prospectus,
or to file a new registration statement containing the Prospectus, in order
to
comply with law, including in connection with the delivery of the Prospectus,
the Company agrees to (i) notify the Representatives of any such event or
condition and (ii) promptly prepare (subject to Section 5(d) and Section 5(g)),
file with the Commission (and use its best efforts to have any amendment to
the
Registration Statement or any new registration statement declared effective)
and
furnish at its own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package or the
Prospectus, or any new registration statement, necessary in order to make the
statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in light of the circumstances then prevailing or under which
they
were made, as the case may be, not misleading or so that the Registration
Statement, the Disclosure Package or the Prospectus, as amended or supplemented,
will comply with law.
(f) The
Company will prepare a final term sheet containing only a description of the
Securities, in the form of Schedule C hereto, and the Company will file such
term sheet pursuant to Rule 433(d) under the Securities Act within the time
required by such rule (such term sheet, the “Final Term Sheet”).
(g) The
Company represents that it has not made, and agrees that, unless it obtains
the
prior written consent of the Representatives, it will not make, any offer
relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as
defined in Rule 405 of the Securities Act) required to be filed by the Company
with the Commission or retained by the Company under Rule 433 of the Securities
Act; provided that the prior written consent of the Representatives hereto
shall
be deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule B hereto. Any such free writing prospectus consented to
by
the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus”. The Company agrees that (i) it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, and (ii) has complied and will comply, as the case may be, with
the
requirements of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping. The Company consents to the use
by
any Underwriter of a free writing prospectus that (a) is not an “issuer
free writing prospectus” as defined in Rule 433, and (b) contains only
(i) information describing the preliminary terms of the Securities or their
offering, (ii) information permitted by Rule 134 under the Securities Act or
(iii) information that describes the final terms of the Securities or their
offering and that is included in the Final Term Sheet contemplated in
Section 5(f).
10
(h) The
Company shall apply the net proceeds from the sale of the Securities sold by
it
in the manner described under the caption “Use of Proceeds” in each of the
Disclosure Package and the Prospectus.
(i) If
immediately prior to the third anniversary (the “Renewal Deadline”) of December
1, 2005, any of the Securities remain unsold by the Underwriters, the Company
will prior to the Renewal Deadline file, if it has not already done so and
is
eligible to do so, a new shelf registration statement relating to the Securities
which shall be an automatic shelf registration statement, in a form satisfactory
to the Representatives. If the Company is not eligible to file an automatic
shelf registration statement, the Company will prior to the Renewal Deadline,
if
it has not already done so, file a new shelf registration statement relating
to
the Securities, in a form satisfactory to the Representatives, and will use
its
best efforts to cause such registration statement to be declared effective
within 150 days after the Renewal Deadline. The Company will take all other
action necessary or appropriate to permit the public offering and sale of the
Securities to continue as contemplated in the expired registration statement
relating to the Securities. References herein to the Registration Statement
shall include such new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(j) To
make
generally available to its securityholders as soon as practicable, but in any
event not later than 16 months after the date hereof, an earnings statement
of
the Company and its subsidiaries (which need not be audited) covering a period
of at least 12 months after the date hereof and complying with Section 11 (a)
of
the Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158); and
(k) During
the period beginning from the date hereof and continuing to and including the
later of (i) the termination of trading restrictions for the Securities, as
notified to the Company by the Underwriters and (ii) the time of delivery of
the
securities by the Underwriters to subsequent purchasers as set forth on the
cover of the Prospectus Supplement, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature more than
one year after such time of delivery referred to in clause (ii) and which are
substantially similar to such Securities, without the prior written consent
of
the Representatives on behalf of the Underwriters.
11
6. The
Company covenants and agrees with the several Underwriters that the Company
will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company's counsel and accountants in connection with the registration
of
the Securities under the Securities Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, the Prospectus
and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Indenture, any Blue Sky
and Legal Investment Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the issuance, offering,
sale, exchange and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to, and the fees and disbursements of counsel
for
the Underwriters in connection with, any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any trustee and any agent of any trustee and the fees and
disbursements of counsel for any trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section 6, and Sections 8 and 12 hereof, the Underwriters
will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The
obligations of the Underwriters shall be subject, in the discretion of the
Underwriters, to the condition that all representations and warranties and
other
statements of the Company in or incorporated by reference in the Disclosure
Package and the Prospectus as amended or supplemented are, at and as of the
Time
of Delivery, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and
the
following additional conditions:
(a) For
the
period from and after the Execution Time and prior to the Time of
Delivery:
(i) the
Company shall have filed any preliminary prospectus and the
Prospectus with the Commission (including the information required by Rule
430B
under the Securities Act) in the manner and within the time period required
by
Rule 424(b) under the Securities Act; or the Company shall have filed a
post-effective amendment to the Registration Statement containing the
information required by such Rule 430B, and such post-effective amendment shall
have become effective;
12
(ii) the
Final
Term Sheet, and any other material required to be filed by the Company pursuant
to Rule 433(d) under the Securities Act, shall have been filed with the
Commission within the applicable time periods prescribed for such filings under
such Rule 433 and
all
requests for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
and
(iii) no
stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect
and
no proceedings for such purpose shall have been instituted or threatened by
the
Commission.
(b) Xxxxx
Xxxxxxx LLP, counsel for the Underwriters, shall have furnished to the
Underwriters their opinion, dated the Time of Delivery, with respect to the
Company being duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation, the matters covered in paragraphs (v), (vi),
(vii), (xi) and the last paragraph of subsection (c) below, as well as such
other matters as the Representatives on the behalf of the Underwriters may
reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters;
(c) LeBoeuf,
Lamb, Xxxxxx & XxxXxx LLP, counsel for the Company, shall have furnished to
the Underwriters their opinion, dated the Time of Delivery, in form and
substance satisfactory to the Representatives on behalf of the Underwriters,
to
the effect that:
(i) The
Company is validly existing as a corporation in good standing under the laws
of
the jurisdiction of its incorporation, with corporate power and authority to
own
its properties and conduct its business as described in the Disclosure Package
and Prospectus as amended or supplemented and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of
its business or its ownership or leasing of its property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) Each
Significant Subsidiary of the Company is validly existing as a corporation
in
good standing under the laws of the state in which it is incorporated, has
the
corporate power and authority to own its property and conduct its business
as
described in the Disclosure Package and the Prospectus as amended or
supplemented and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership
or
leasing of property requires such qualification, except to the extent that
the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) All
of
the issued shares of common stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance
or
claim;
13
(iv) To
such
counsel's knowledge and other than as set forth in the Prospectus as amended
or
supplemented, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of
the Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually or
in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, or would materially
and
adversely affect the ability of the Company to perform its obligations under
the
Indenture or this Agreement, or are otherwise material in the context of the
sale of the Securities; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(v) This
Agreement has been duly authorized, executed and delivered by the
Company;
(vi) The
Securities have been duly authorized, executed, issued and delivered and,
assuming due authentication by the Trustee, constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other laws or judicial decisions of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is considered in a proceeding
at
law or in equity); and the Securities are entitled to the benefits provided
by
the Indenture; and the Securities and the Indenture conform in all material
respects to the descriptions thereof in the Disclosure Package and Prospectus
as
amended or supplemented;
(vii)
The
Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company, enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other laws or
judicial decisions of general applicability relating to or affecting creditors'
rights and to general equity principles (regardless of whether enforcement
is
considered in a proceeding at law or in equity); and the Indenture has been
duly
qualified under the Trust Indenture Act;
(viii)
The
issue
and sale of the Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement or other agreement or instrument known to such counsel
to
which the Company is a party or by which the Company is bound, nor will such
actions result in any violation of the provisions of the Restated Certificate
of
Incorporation, as amended, or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company;
14
(ix) No
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the issue
and
sale of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement and the Indenture, except such as have been
obtained under the Securities Act and such consents, approvals, authorizations,
orders, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution
of
the Securities by the Underwriters;
(x) To
such
counsel's knowledge, neither the Company nor any of its Significant Subsidiaries
is in violation of its by-laws or certificate of incorporation or in default
in
the performance or observance of any material obligation, agreement, covenant
or
condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, lease or other instrument to which it is a party or by which it
is
bound or to which any of its property or assets is subject;
(xi) The
statements set forth in the Disclosure Package, taken as a whole, and the
Prospectus under the captions "Description of Securities—Senior Debt Securities"
and "Description of the Notes," insofar as they purport to constitute a summary
of the terms of the Securities and the Indenture, fairly summarize the matters
described therein in all material respects;
(xii) The
Company is not an "investment company," as such term is defined in the
Investment Company Act;
(xiii) The
documents incorporated by reference in the Disclosure Package and the Prospectus
as amended or supplemented (other than the financial statements, including
the
notes thereto, related schedules and other financial or accounting information
contained therein, as to which such counsel need express no opinion), when
they
were filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act, and the rules and regulations of
the
Commission thereunder;
(xiv)
The
Registration Statement and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company prior to the
Time
of Delivery (other than the financial statements, including the notes thereto,
related schedules and other financial or accounting information contained
therein, as to which such counsel need express no opinion) comply as to form
in
all material respects with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations thereunder; and
(xv) The
Registration Statement has been declared effective by the Commission under
the
Securities Act. No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration Statement is
in
effect and no proceedings for such purpose have been instituted or are pending
or, to such counsel’s knowledge, are contemplated or threatened by the
Commission.
15
In
addition, such
counsel will provide in a separate letter a statement that such counsel has
reviewed the Registration Statement, the Disclosure Package and the Prospectus
as amended or supplemented, participated in discussions with the Representatives
and the Company and its accountants at which contents of the Registration
Statement, the Disclosure Package and the Prospectus as amended or supplemented
and related matters were discussed; on the basis of the information that such
counsel gained in the course of the performance of their services referred
to
above, although such counsel shall not be deemed to be passing upon and shall
not assume any responsibility for, the accuracy, completeness or fairness of
the
statements contained in the Registration Statement, the Disclosure Package
or
the Final Prospectus and shall not be required to have made an independent
check
or verification thereof (except as described in paragraphs (vi) and (xi)
hereof), on the basis of the foregoing, no facts have come to the attention
of
such counsel in the course of such review which have caused such counsel to
believe that, (A) as of its respective effective dates, the Registration
Statement or any further amendment thereto made by the Company prior to the
Time
of Delivery (other than the financial statements, including the notes thereto,
related schedules and other financial or accounting information contained
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to
be
stated therein or necessary to make the statements therein not misleading or
that (B) as of the Applicable Time, the Disclosure Package (other than the
financial statements, including the notes thereto, related schedules and other
financial or accounting information contained therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made not misleading
or that (C) as of its date or the Time of Delivery, the Prospectus as amended
or
supplemented or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements, including
the notes thereto, related schedules and other financial or accounting
information contained therein, as to which such counsel need express no opinion)
contained or contains an untrue statement of a material fact or omitted or
omits
to state a material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made not
misleading.
(d) At
the
Execution Date and at the Time of Delivery, PricewaterhouseCoopers LLP shall
have furnished to you letters, dated the date of delivery thereof, in form
and
substance satisfactory to you, to the effect that set forth in Exhibit A hereto,
and as to such other matters as the Underwriters may reasonably
request.
16
(e) (i)
Neither the Company nor any of its subsidiaries shall have sustained, since
the
date of the latest audited financial statements included or incorporated by
reference in the Disclosure Package 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 would result in any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the
general affairs, management, consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, taken
as a
whole, otherwise than as set forth or contemplated in the Disclosure Package
and
the Prospectus, and (ii) since the date hereof there shall not have been any
change in the capital stock (other than pursuant to the Company's common stock
repurchase program, or its dividend reinvestment and other common stock or
employee benefit plans), or long-term debt of the Company or any of its
Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
consolidated financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus as of the date of this Agreement, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriters so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus;
(f) During
the period beginning on the date hereof and ending at the Time of Delivery
(i)
no downgrading shall have occurred in the rating accorded the Company or the
Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for
purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Company or of
any
of the Company's debt securities or preferred stock;
(g)
During
the period beginning on the date hereof and ending at the Time of Delivery,
there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange
or
the establishment of minimum prices on such exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York
Stock
Exchange or any other exchange or in the over-the-counter market; (iii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities or a material disruption in commercial banking
or
securities settlement or clearance services in the United States; (iv) an
outbreak or escalation of hostilities involving the United States or the
declaration of a national emergency or war by the United States; or (v) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions or currency exchange rates or exchange controls in the
United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus and
the
Disclosure Package;
(h)
The
Company shall have complied with the provisions of Section 5 hereof with respect
to the furnishing of prospectuses; and
(i) The
Company shall have furnished or caused to be furnished to the Underwriters
at
the Time of Delivery a certificate or certificates of officers of the Company
satisfactory to the Representatives on behalf of the Underwriters as to the
accuracy of the representations and warranties of the Company herein at and
as
of such Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery,
as
to the matters set forth subsections (a) and (e) of this Section and as to
such
other matters as the Underwriters may reasonably request.
17
8. (a)
The
Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either Section 15 of the Securities Act
or
Section 20 of the Exchange Act against any and all losses, claims, damages
or
liabilities, joint or several, to which they or any of them may become subject.
The Company also agrees to indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the Registration
Statement, any Issuer Free Writing Prospectus, the Final Term Sheet or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse such Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any
such action or claim as such expenses are incurred; provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in
any preliminary prospectus, the Registration Statement, any Issuer Free Writing
Prospectus, the Final Term Sheet or the Prospectus, or any such amendment or
supplement thereto, in reliance upon and in conformity with written information
relating to any Underwriter furnished to the Company through the Representatives
expressly for use in the Prospectus as amended or supplemented.
(b) Each
Underwriter will severally and not jointly indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, the Registration
Statement, any Issuer Free Writing Prospectus, the Final Term Sheet or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, the Registration Statement, any Issuer Free Writing
Prospectus, the Final Term Sheet or the Prospectus, or any amendment or
supplement thereto in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred. The Company hereby acknowledges that the only information that the
Underwriters have furnished to the Company expressly for use in the Registration
Statement, the Disclosure Package or the Prospectus (or any amendment or
supplement thereto) are the statements set forth (i)
in
the fourth paragraph under the caption “Underwriting” in the Prospectus, and
(ii) in the eighth paragraph under the caption “Underwriting” in the
Prospectus.
18
(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 (i) shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any
event, relieve the indemnifying party from any liability other than the
indemnification obligation provided in paragraph (a) or (b) above. In
case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel satisfactory to such indemnified party; provided, however, if
the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that
there
may be legal defenses available to it and/or other indemnified parties that
are
different from or additional to those available to the indemnifying party,
the
indemnified party or parties shall have the right to select separate counsel
to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel)), representing the
indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party
to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent (i) includes an unconditional release of such indemnified party from
all
liability on claims that are the subject matter of such 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.
19
(e) 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 aggregate amount paid or payable by such indemnified party, as incurred,
as
a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Securities pursuant to this Agreement. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as
is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities
on
the other in connection with the statements or omissions which resulted in
such
losses, claims, damages or liabilities (or actions in respect thereof), as
well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the offering of the Securities pursuant to this Agreement shall be deemed
to be in the same respective proportions as the total net proceeds from such
offering (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth on the front cover page of the Prospectus, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the
equitable considerations referred to above in this subsection (e). 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 (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the underwriting discounts received by such Underwriter in connection
with the Securities underwritten by it and distributed to the public. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (e) to contribute are several, and not joint,
in
proportion to their respective underwriting commitments set forth opposite
their
names in Schedule A.
20
(f) The
obligations of the Company under this Section 8 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the
same
terms and conditions, to each person, if any, who controls the Company within
the meaning of the Securities Act; and the obligations of the Underwriters
under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of any Underwriter and to each person,
if any, who controls an Underwriter, within the meaning of the Securities
Act.
9. (a)
If any
Underwriter shall default in its obligation to purchase the Securities which
it
has agreed to purchase under this Agreement, the non-defaulting Underwriters
may
in their discretion arrange for themselves or another party or other parties
to
purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the non-defaulting Underwriters
do
not arrange for the purchase of such Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure
another
party or other parties satisfactory to the non-defaulting Underwriters to
purchase such Securities on such terms. In the event that, within the respective
prescribed period, the non-defaulting Underwriters notify the Company that
they
have so arranged for the purchase of such Securities, or the Company notifies
the non-defaulting Underwriters that it has so arranged for the purchase
of such
Securities, the non-defaulting Underwriters or the Company shall have the
right
to postpone the Time of Delivery for a period of not more than seven days,
in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in
any
other documents or arrangements, and the Company agrees to file promptly
any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the non-defaulting Underwriters may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement.
(b) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Securities, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such non-defaulting Underwriter agreed to purchase
under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata
share
(based on the aggregate principal amount of Securities which such Underwriter
agreed to purchase hereunder) of the Securities which such defaulting
Underwriter or Underwriters agreed to purchase for which such arrangements
have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If,
after
giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Securities, as referred to in subsection (b) above,
or
if the Company shall not exercise the right described in subsection (b) above
to
require non-defaulting Underwriters to purchase Securities of the defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements
in
Section 8 hereof; but nothing herein shall relieve the defaulting Underwriter
from liability for its default.
21
10. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. All
statements,
requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission
to Banc of America Securities LLC, 00 Xxxx 00xx
Xxxxxx,
XX0-000-00-00, Xxx Xxxx, Xxx Xxxx 00000, Attn: High Grade Transaction
Management/Legal, facsimile number: (000) 000-0000 and if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to Energy
East Corporation, 00 Xxxx Xxxx Xxxxx, Xxx Xxxxxxxxxx, Xxxxx 00000-0000, Attn:
Treasurer, facsimile number: (000) 000-0000. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
12. If
the
Company fails or refuses to comply with the terms or to fulfill any of the
conditions of this Agreement other than by reason of default by the
Underwriters, the Company will reimburse the Underwriters for all out-of-pocket
expenses approved in writing by the Underwriters, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase of the Securities.
13. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 8 and
10
hereof, the officers and directors of the Company and each person who controls
any Underwriter or the Company, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of
the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. As
used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business. Except as expressly provided in this
agreement, all capitalized terms used and not defined herein shall have the
meanings assigned to them in the Indenture.
15. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
22
16. The
Company acknowledges and agrees that: (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public
offering price of the Securities and any related discounts and commissions,
is
an arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading
to
such transaction each Underwriter is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary of the Company or its
affiliates, stockholders, creditors or employees or any other party; (iii)
no
Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in
this
Agreement; (iv) the several Underwriters and their respective affiliates may
be
engaged in a broad range of transactions that involve interests that differ
from
those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby and
the Company has consulted its own legal, accounting, regulatory and tax advisors
to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the several Underwriters, or any of them, with
respect to the subject matter hereof. The Company hereby waives and releases,
to
the fullest extent permitted by law, any claims that the Company may have
against the several Underwriters with respect to any breach or alleged breach
of
agency or fiduciary duty.
17. This
Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the
same
instrument.
23
If
the
foregoing is in accordance with your understanding, please sign and return
to us
six counterparts hereof.
|
Very
truly yours,
|
|||
|
ENERGY
EAST CORPORATION
|
|||
|
By:
|
/s/
F. Xxxxxxx XxXxxxx
|
||
|
Name:
|
F.
Xxxxxxx XxXxxxx
|
||
|
Title:
|
Vice
President - Finance, Treasurer & Chief Integration
Officer
|
||
|
Accepted
as of the date hereof:
|
||||
|
Banc
of America Securities LLC
|
||||
|
Wachovia
Capital Markets, LLC
|
||||
|
For
themselves and on behalf of the several Underwriters named in Schedule
A
hereto.
|
||||
|
By:
|
BANC
OF AMERICA SECURITIES LLC
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|||
|
Name:
|
Xxxxx
X. Xxxxxxx
|
|||
| Title: |
Vice
President
|
|||
|
By:
|
WACHOVIA
CAPITAL MARKETS, LLC
|
|||
|
By:
|
/s/
Xxx Xxxxxxxx
|
|||
|
Name:
|
Xxx
Xxxxxxxx
|
|||
|
Title:
|
Managing
Director
|
|||
SCHEDULE
A
|
Underwriters
|
Principal
Amount of
Securities
to Be
Purchased
|
|||
|
Banc
of America Securities LLC
|
$
|
90,000,000
|
||
|
Wachovia
Capital Markets, LLC
|
$
|
90,000,000
|
||
|
HSBC
Securities (USA) Inc.
|
$
|
35,000,000
|
||
|
UBS
Securities LLC.
|
$
|
35,000,000
|
||
|
Total
|
$
|
250,000,000
|
||
X-
0
XXXXXXXX
B
Free-Writing
Prospectus List
Final
Term Sheet dated July 18, 2006.
B-
1
SCHEDULE
C
Energy
East Corporation
FORM
OF FINAL TERM SHEET
Dated:
July 18, 2006
|
Issuer:
|
Energy
East Corporation
|
|||
|
Size:
|
$
|
250,000,000
|
||
|
Maturity:
|
||||
|
Coupon
(Interest Rate):
|
||||
|
Yield
to Maturity:
|
||||
|
Spread
to Benchmark Treasury:
|
||||
|
Benchmark
Treasury:
|
||||
|
Benchmark
Treasury Price and Yield:
|
||||
|
Interest
Payment Dates:
|
||||
|
Redemption
Provision:
|
||||
|
Price
to Public:
|
||||
|
Settlement
Date:
|
July 24, 2006 | |||
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting XXXXX on
the
SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it by calling
or
e-mailing Banc of America Securities LLC at 1-800-294-1322 or
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx
or calling Wachovia Capital Markets, LLC at 0-000-000-0000.
C-
1
EXHIBIT
A
Pursuant
to Section 7(e) of the Underwriting Agreement, PricewaterhouseCoopers LLC
shall
furnish letters to the Underwriters to the effect that:
(i) They
are
an independent registered public accounting firm with respect to the Company
and
its subsidiaries within the meaning of the Act and the applicable rules and
regulations thereunder adopted by the Securities and Exchange Commission
(SEC)
and the Public Company Accounting Oversight Board (United States) (PCAOB);
(ii) In
their
opinion, the consolidated financial statements of the Company and its
subsidiaries audited by them and incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related rules
and regulations adopted by the SEC;
(iii) On
the
basis of procedures (but not an audit in accordance with standards of the
PCAOB)
consisting of:
|
(a)
|
Reading
the minutes of meetings of the stockholders and the Board of Directors
of
the Company and its consolidated subsidiaries since December 31,
2005 as
set forth in the minute books through a specified date not more
than three
business days prior to the date of delivery of such
letter;
|
|
(b)
|
Performing
the procedures specified by the PCAOB for a review of interim financial
information as described in SAS 100, Interim
Financial Information,
on the unaudited condensed interim financial statements of the
Company and
its consolidated subsidiaries incorporated by reference in the
Registration Statement and reading the unaudited interim financial
data
for the period from the date of the latest balance sheet incorporated
by
reference in the Registration Statement to the date of the latest
available interim financial data;
and
|
|
(c)
|
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 below; nothing has come to their
attention as a result of the foregoing procedures that caused them
to
believe that:
|
(1) any
material modifications should be made to the unaudited condensed interim
financial statements, incorporated by reference in the Registration Statement,
for them to be in conformity with generally accepted accounting
principles;
(2) the
unaudited condensed interim financial statements, incorporated by reference
in
the Registration Statement, do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act as it applies
to
Form 10-Q and the related rules and regulations adopted by the
SEC;
C-
1
(3)
(i)
at
the date of the latest available interim financial data (if any) and at a
specified date not more than three business days prior to the date of delivery
of such letter, there was any change in the capital stock, increase in long-term
debt or any decreases in consolidated net current assets (working capital)
or
stockholders' equity of the Company and its consolidated subsidiaries as
compared with amounts shown in the latest balance sheet incorporated by
reference in the Registration Statement or (ii) for the period from the date
of
the latest income statement incorporated by reference in the Registration
Statement to the date of the latest available financial data and for the
period
from the date of the latest income statement incorporated by reference in
the
Registration Statement to a specified date not more than three business days
prior to delivery of such letter, there were any decreases, as compared with
the
corresponding period in the preceding year, in consolidated net sales or
in the
total or per-share amounts of net income, except in all instances for changes,
increases or decreases which the Registration Statement discloses have occurred
or may occur, or they shall state any specific changes, increases or
decreases.
|
(d)
|
The
letter shall also state that they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Underwriters which were
obtained from accounting records which are subject to controls
over
financial reporting or which has been derived directly from such
accounting records of the Company and its consolidated subsidiaries
by analysis or computation, which appear in the Registration
Statement, or in documents incorporated by reference in the Registration
Statement, specified by the Underwriters, and have compared certain
of
such amounts, percentages and financial information with such records
or
computations and have found them to be in agreement and such other
procedures as the Underwriters may request and PricewaterhouseCoopers
LLP
are willing to perform and report
upon.
|
C-
1
