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
August
14, 2006
Citigroup
Global Markets Inc.
X.X.
Xxxxxx Securities Inc.
for
themselves and as Representatives for the Underwriters
named in Schedule A, attached hereto
|
c/o
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X.X.
Xxxxxx Securities Inc.
|
|
000
Xxxx Xxxxxx
|
|
Xxx
Xxxx, XX 00000
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Ladies
and Gentlemen:
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 Citigroup Global Markets Inc. and X.X. Xxxxxx
Securities Inc. (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 8 hereof) as
follows:
1. 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 N.A. (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;
(d) The
term “Disclosure Package” shall mean (i) the Base Prospectus, including any
preliminary prospectus supplement, as amended or supplemented immediately
prior
to the Applicable Time, (ii) the issuer free writing prospectuses as defined
in
Rule 433 of the Securities Act (each, an “Issuer Free Writing Prospectus”),
if
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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 4(f) hereof) which also shall be identified in Schedule B
hereto. As of 1:30 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 7(b) hereof.
(e) The
documents incorporated by reference in the Registration Statement, 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 Registration Statement,
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, the Prospectus and the Disclosure Package conform,
and
any further amendments or supplements to the Registration Statement, the
Prospectus or the Disclosure Package 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 the Disclosure
Package 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 or the Disclosure Package 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 7(b) hereof;
(g) The
consolidated financial statements filed with or as part of the Registration
Statement, the Prospectus and the Disclosure Package present fairly the
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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, the Prospectus and the Disclosure Package;
(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
Registration Statement, 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 Registration Statement, 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 Registration
Statement, 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, included, includes or will 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
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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 7(b)
hereof.
(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 Registration Statement, the Prospectus and the
Disclosure Package 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 Registration Statement,
the Prospectus and the Disclosure Package 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 Registration
Statement, the Prospectus and the Disclosure Package, 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 Registration
Statement, the Prospectus and the Disclosure Package, and all of the issued
5
shares
of capital stock of the Company have been duly and validly authorized and
issued
and are fully paid and non-assessable;
(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 3 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 Registration Statement, the Prospectus
and
the Disclosure Package;
(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 Registration Statement, the Prospectus and the
Disclosure Package 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;
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(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;
(u) Other
than as set forth in the Registration Statement, the Prospectus and the
Disclosure Package, 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 Registration Statement, the Prospectus and the
Disclosure Package, 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;
(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;
and
(aa)
Except
as disclosed in the Registration Statement, the Prospectus and the Disclosure
Package, 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.
2. 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 99.487% of the aggregate principal amount of the Securities,
plus
accrued interest from July 24, 2006 to the Time of Delivery.
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 X.X. Xxxxxx
Securities Inc. delivering $248,717,500 to the Company in exchange for the
Securities. Each Underwriter has authorized X.X. Xxxxxx Securities Inc. (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.
3. 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 2, at 9.30 a.m., New
York
City time, on August 17, 2006 or such other date and time as the Company
and
X.X. Xxxxxx Securities Inc. 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 Xxxxxxx
LLP.
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4. The
Company covenants and agrees with each of the Underwriters:
(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 4(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;
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(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.
(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 4(d) and Section
4(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
10
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.
(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
Registration Statement, the Prospectus and the Disclosure Package.
(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
5. 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 4(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 5, and Sections 7 and 11 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.
6. 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 Registration
Statement, the Prospectus and the Disclosure Package 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;
(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
12
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
14
statute
or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company;
(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
15
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.
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 the 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.
(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 Registration Statement, 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
16
whole,
otherwise than as set forth or contemplated in the Registration Statement,
the
Prospectus and the Disclosure Package, 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, sale or the delivery
of the
Securities on the terms and in the manner contemplated in the Prospectus,
the
Disclosure Package and this Agreement;
(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, or has changed its outlook with possible negative implications, to
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, sale or the delivery of
the
Securities on the terms and in the manner contemplated in the Prospectus,
the
Disclosure Package and this Agreement;
(h) The
Company shall have complied with the provisions of Section 4 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
7. (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.
(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
18
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 7 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 7 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 7(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
19
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.
(e) If
the indemnification provided for in this Section 7 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 7 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 7 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.
8. (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
21
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
5 hereof and the indemnity and contribution agreements in Section 7 hereof;
but
nothing herein shall relieve the defaulting Underwriter from liability for
its
default.
9. 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.
10. 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 X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx
00000, Attn: High Grade Syndicate Desk - 8th
Floor, 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.
11. 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.
12. 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 7 and
9
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.
13. 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.
14. This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
15. 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
22
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.
16. This
Agreement may be executed by any one or more of the parties hereto and thereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the
same
instrument.
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:
|
|||
|
Citigroup
Global Markets Inc.
|
|||
|
X.X.
Xxxxxx Securities Inc.
|
|||
|
For
themselves and on behalf of the several Underwriters named in Schedule
A
hereto.
|
|||
|
By:
|
CITIGROUP
GLOBAL MARKETS INC.
|
||
|
By:
|
/s/
Xxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxx X. Xxxxxxxxx
|
|||
|
Title:
Director
|
|||
|
By:
|
X.X.
XXXXXX SECURITIES INC.
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxxx Xxxxxxxxx
|
|||
|
Title:
Vice President
|
|||
SCHEDULE
A
|
Underwriters
|
Principal
Amount of
Securities
to Be
Purchased
|
||
|
Citigroup
Global Markets Inc.
|
$87,500,000
|
||
|
X.X.
Xxxxxx Securities Inc.
|
$87,500,000
|
||
|
Banc
of America Securities LLC
|
$25,000,000
|
||
|
Sovereign
Securities Corporation, LLC
|
$25,000,000
|
||
|
Wachovia
Capital Markets LLC
|
$25,000,000
|
||
| ___________________ | |||
|
Total
|
$250,000,000
|
||
A-1
SCHEDULE
B
Free-Writing
Prospectus List
Final
Term Sheet dated August 14, 2006.
B-1
SCHEDULE
C
Energy
East Corporation
FORM
OF FINAL TERM SHEET
Dated:
August 14, 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:
|
|
|
Accrued
Interest:
|
|
|
Settlement
Date:
|
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
X.X. Xxxxxx Securities Inc. collect at (000) 000-0000 or Citigroup Global
Markets Inc. toll free at 1(877) 858-5407.
C-1
EXHIBIT
A
Pursuant
to Section 6(d) 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
C-1
Exchange
Act as it applies to Form 10-Q and the related rules and regulations adopted
by
the SEC;
(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
