EXHIBIT 1
Central Hudson Gas & Electric Corporation
$140,000,000
Medium-Term Notes, Series F
FORM OF DISTRIBUTION AGREEMENT
____________, 200_
New York, New York
[Name of Agent]
[Name of Agent]
[Name of Agent]
Dear Sirs:
Central
Hudson Gas & Electric Corporation, a New York corporation
(the
"Company"), confirms its agreement with each of you with respect to
the issue
and sale by the Company of up to $140,000,000 aggregate principal
amount of its
Medium-Term Notes, Series F (the "Notes").
The
Company proposes to issue the Notes under its Indenture (the
"Indenture") dated as of April 1, 1992 to U.S. Bank Trust National
Association
(formerly known as First Trust of New York, National Association)
("U.S. Bank
Trust") as successor to Morgan Guaranty Trust Company of New York,
as trustee
(the "Trustee").
The Notes
will be issued in minimum denominations of $1,000 and integral
multiples thereof (unless otherwise specified by the Company), will
be issued
only in fully registered form and will have the annual interest
rates,
maturities and, if appropriate, other terms set forth in a
supplement or
supplements to the Prospectus referred to below. The Notes will be
issued, and
the terms thereof established, in accordance with the Indenture
and, in the case
of Notes sold pursuant to Section 2(a), the Administrative
Procedures attached
hereto as Exhibit A (the "Procedures"). The Procedures may only be
amended by
written agreement of the Company and you after notice to, and with
the approval
of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall
refer to any of you, the term "Purchaser" shall refer to any of you
acting
solely as principal for resale to investors pursuant to Section
2(b) and not as
agent, and the term
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"you" shall refer to you together at any time any of you is acting
in both such
capacities or in either such capacity; provided that any additional
person
appointed as an Agent pursuant to Section 2(a) shall be included in
the terms
"Agent" and "you".
1.
Representations and Warranties.The Company represents and warrants
to,
and agrees with, you as set forth below in this Section 1. Certain
terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the
Securities Act of 1933, as amended (the "Act"). The Company filed
with the
Securities and Exchange Commission (the "Commission") a
registration statement
on such Form (File No. 333-________), including a form of
preliminary prospectus
which became effective, for the registration under the Act and the
offering
thereof from time to time pursuant to Rule 415 of, among other
things, up to
$140,000,000 aggregate principal amount of debt securities. The
Company has
filed or will file with the Commission pursuant to the applicable
paragraph of
Rule 424 under the Act, any supplement or supplements to the form
of prospectus
included in such registration statement relating to the Notes and
the plan of
distribution thereof (such supplement being hereinafter called a
"Prospectus
Supplement"). Such registration statement, as amended at the date
of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(ix)
or (x) under
the Act and complies in all other material respects with said Rule.
In
connection with the sale of Notes, the Company proposes to file
with the
Commission pursuant to the applicable paragraph of Rule 424 under
the Act one or
more further supplements to the Prospectus Supplement providing for
the
specification of or a change in the interest rates, if any,
maturity dates,
issuance prices, redemption terms and prices, if any, and, if
appropriate, other
terms of the Notes sold pursuant hereto or the offering thereof
(any such
supplement being hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the Execution
Time,
(ii) on the Effective Date, (iii) when any supplement to the
Prospectus is filed
with the Commission, (iv) as of the date of any Terms Agreement (as
defined by
Section 2(b)) and (v) at the date of delivery by the Company of any
Notes sold
hereunder (each such delivery date, a "Closing Date"), (1) the
Registration
Statement, as amended as of any such time, and the Prospectus, as
supplemented
as of any such time, the Indenture, as amended or supplemented as
of any such
time, complied or will comply in all material respects with the
applicable
requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust
Indenture Act"), and the Securities Exchange Act of 1934, as
amended (the
"Exchange Act"), and the respective rules thereunder; (2) the
Registration
Statement, as amended as of any such time, did not or will not
contain an untrue
statement of a material fact or omit to state a material fact
required to be
stated therein or necessary in order to make the statements therein
not
misleading; and (3) the Prospectus, as supplemented as of any such
time, will
not include an untrue statement of a material fact or omit to state
a material
fact necessary in order to make the statements therein, in the
light of the
circumstances under which they were made, not misleading; provided,
however,
that the Company makes no representations or warranties as to (A)
that part of
the Registration Statement which shall constitute the Statements of
Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (B)
the information contained in or omitted from the Registration
Statement or the
Prospectus (or any supplement thereto) in reliance upon and in
conformity with
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information furnished in writing to the Company by any of you
specifically for
use in connection with the preparation of the Registration
Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have
the meanings indicated. The term "Effective Date" shall mean the
later of (i)
the date that the Registration Statement or the most recent
post-effective
amendment thereto, if any, was declared effective by the Commission
or (ii) the
time and date of the filing of the Company's most recent Annual
Report on Form
10-K. "Execution Time" shall mean the date and time that this
Agreement is
executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the
form of basic prospectus relating to the debt securities contained
in the
Registration Statement at the Effective Date (unless such basic
prospectus has
been amended by the Company subsequent to the Effective Date, in
which case
"Basic Prospectus" shall mean the form of preliminary prospectus as
so amended).
"Prospectus" shall mean the Basic Prospectus as supplemented by the
Prospectus
Supplement and as it may be further amended or supplemented at the
particular
time referred to. "Registration Statement" shall mean the
registration
statements referred to in paragraph (a) above, including
incorporated documents,
exhibits and financial statements, as they may be amended at the
particular time
referred to. "Rule 415" and "Rule 424" refer to such rules under
the Act. Any
reference herein to the Registration Statement, the Basic
Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to
and include
the documents incorporated by reference therein pursuant to Item 12
of Form S-3
which were filed under the Exchange Act on or before the Effective
Date of the
Registration Statement or the issue date of the Basic Prospectus,
the Prospectus
Supplement or the Prospectus, as the case may be; and any reference
herein to
the terms "amend", "amended", "amendment" or "supplement" with
respect to the
Registration Statement, the Basic Prospectus, any Prospectus
Supplement or the
Prospectus shall be deemed to refer to and include the filing of
any document
under the Exchange Act after the Effective Date of the Registration
Statement or
the issue date of the Basic Prospectus, any Prospectus Supplement
or the
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(d) Neither the Company nor its Subsidiary (as hereinafter
defined)
has sustained since the date of the latest audited financial
statements included
or incorporated by reference in the Registration Statement and the
Prospectus,
any loss or interference with its business from fire, explosion,
flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or
court or governmental action, order or decree, which has had or is
reasonably
likely to have a material adverse effect on the financial
position,
stockholders' equity or results of operations of the Company and
its Subsidiary
taken as a whole, otherwise than as set forth or contemplated in
the
Registration Statement and the Prospectus; and, since the
respective dates as of
which information is given in the Registration Statement and the
Prospectus,
there has not been any change in the capital stock (other than
pursuant to any
stock purchase, dividend reinvestment, savings, bonus, incentive,
or similar
plan, conversions of convertible securities into common stock or
shares of
capital stock issued or to be issued by the Subsidiary pursuant to
one or more
subscription agreements in effect between the Subsidiary and the
Company at the
date hereof) or long-term debt, normal amortization of debt premium
and
discount, bank or finance company borrowings and repayments in the
ordinary
course, or additional issuances or repurchases of commercial paper)
of the
Company or its Subsidiary or any material adverse change, or any
development
involving a prospective material adverse change, in or affecting
the general
affairs, management, financial position, stockholders' equity or
results of
operations of
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the Company and its Subsidiary taken as a whole, otherwise than as
set forth or
contemplated in the Registration Statement and the Prospectus.
(e) Each of Phoenix Development Company, Inc. (the "Subsidiary")
and
the Company has been duly incorporated and is validly existing as a
corporation
in good standing under the laws of the jurisdiction of its
incorporation, with
power and authority (corporate and other) to own its properties and
conduct its
business as described in the Prospectus and is duly qualified to do
business in
each jurisdiction in which it owns or leases real property or in
which the
conduct of its business requires such qualification except where
the failure to
be so qualified, considering all such cases in the aggregate, does
not involve a
material risk to the business, properties, financial position or
results of
operations of the Company and its Subsidiary taken as a whole; and
all of the
outstanding shares of capital stock of the Subsidiary have been
duly authorized
and validly issued, are fully paid and nonassessable and are owned
beneficially
by the Company subject to no security interest, other encumbrance
or adverse
claim. Notwithstanding the foregoing, if the Subsidiary as of the
date hereof or
any subsequent date should hereafter or thereafter cease to be a
subsidiary
(within the meaning of Rule 405 promulgated by the Commission under
the Act) of
the Company, such corporation shall be deemed to be excluded from
the definition
of such term from and after such date.
(f) The issuance and sale of the Notes have been duly and
validly
authorized by the Company and, when issued within the limitations
set forth in
the order or orders of the Public Service Commission of the State
of New York
referred to in subsection (g) below and executed and authenticated
in accordance
with the provisions of the Indenture and delivered and paid for by
the
purchasers thereof, the Notes will constitute valid and legally
binding
obligations of the Company entitled to the benefits provided by the
Indenture
equally and ratably with the securities outstanding thereunder; the
Indenture
has been duly authorized, executed and delivered by the Company and
constitutes
a valid and legally binding instrument, enforceable in accordance
with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or
affecting the enforcement of creditors' rights generally, to
general equitable
principles (regardless of whether such enforceability is considered
in a
proceeding in equity or at law) and to an implied covenant of good
faith and
fair dealing; and the Notes and the Indenture conform to the
descriptions
thereof in the Registration Statement and the Prospectus.
(g) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture,
this Agreement
and any Terms Agreement, and the consummation of the transactions
herein and
therein contemplated will not conflict with or result in a breach
of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the
Company is a party or by which the Company is bound or to which any
of the
property or assets of the Company is subject (except that, for
purposes of this
representation and warranty, compliance with any financial covenant
requiring an
arithmetic computation (not determinable at the Execution Time) in
respect of
any Notes shall be measured at the time of the establishment of the
terms of
such Notes), nor will such action result in any violation of the
provisions of
the Company's Certificate of Incorporation, as amended, or the
Bylaws of the
Company or any statute or any order, rule or regulation of any
court or
governmental agency or body having jurisdiction over the Company or
any of its
property or assets; and no consent, approval,
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authorization, order, registration or qualification of or with any
such court or
governmental agency or body is required for the issue and sale of
the Notes or
the consummation by the Company of the other transactions
contemplated by this
Agreement or any Terms Agreement or the Indenture except such as
have been
obtained prior to the Execution Time under the Act and the Trust
Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as
may be required under state securities or Blue Sky laws in
connection with the
public offering of the Notes, and except for filings with and the
orders from
the Public Service Commission of the State of New York authorizing
the issuance
and sale by the Company of the Notes subject to certain conditions
set forth
therein, which orders have been obtained and are in full
effect.
(h) Other than as set forth or contemplated in the Prospectus,
there
are no legal or governmental proceedings pending to which the
Company or its
Subsidiary is a party or of which any property of the Company or
its Subsidiary
is the subject which, if determined adversely to the Company or its
Subsidiary,
would individually or in the aggregate have a material adverse
effect on the
financial position, stockholders' equity or results of operations
of the Company
and its Subsidiary taken as a whole; and, to the best of the
Company's
knowledge, no such proceedings are threatened or contemplated by
governmental
authorities or threatened by others.
(i) There are no contracts or documents of the Company or its
Subsidiary that are required to be described in the Registration
Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement by the
Act or by the rules and regulations thereunder that have not been
so described
or filed.
2.
Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.(a) Subject to the terms
and conditions
set forth herein, the Company hereby authorizes each of the Agents
to act as its
agent to solicit offers for the purchase of all or part of the
Notes from the
Company. On the basis of the representations and warranties, and
subject to the
terms and conditions set forth herein, each of the Agents agrees,
as agent of
the Company, to use its reasonable best efforts to solicit offers
to purchase
the Notes from the Company upon the terms and conditions set forth
in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
reject
any offer to purchase Notes, in whole or in part. In addition, the
Company
reserves the right, in its sole discretion, to instruct the Agents
to suspend at
any time, for any period of time or permanently, the solicitation
of offers to
purchase the Notes. Upon receipt of instructions from the Company,
the Agents
will forthwith suspend solicitations of offers to purchase Notes
from the
Company until such time as the Company has advised them that such
solicitation
may be resumed.
The
Company agrees to pay each Agent a commission on the Closing Date
with
respect to each sale of Notes by the Company as a result of a
solicitation made
by such Agent pursuant to this subsection, in an amount equal to
that percentage
specified in Schedule I hereto of the aggregate principal amount of
the Notes
sold by the Company or in such other amount as may be agreed to in
writing
between the Company and an Agent; provided that such amount shall
not
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exceed the amounts set forth on Schedule I hereto. Such commission
shall be
payable as specified in the Procedures.
Subject to
the provisions of this Section 2 and to the Procedures, offers
for the purchase of Notes may be solicited by an Agent as agent for
the Company
at such times and in such amounts as such Agent deems advisable.
The Company
may, upon five (5) days' prior written notice to the Agents,
appoint additional
persons to serve as Agents hereunder, but only if each such
additional person
agrees to be bound by all the terms of this Agreement as an Agent.
The Company
reserves the right to sell, and may solicit and accept offers to
purchase, Notes
directly on its own behalf, and, in case of any such sale not
resulting from a
solicitation made by any Agent, no commission shall be payable by
the Company
with respect to such sale. To the extent a potential investor
contacts the
Company directly with an offer or inquiry to purchase Notes, the
Company, in
lieu of accepting such offer to purchase and selling Notes directly
on its own
behalf, may refer such potential investor to any Agent to complete
such sale
(each a "Reverse Offer"). Any commission payable to such Agent on
the Closing
Date with respect to a Reverse Offer shall be in an amount as may
be agreed to
by the Company and such Agent at such time. The Company agrees, so
long as any
Agent is serving in such capacity hereunder, that it will not
contact or solicit
potential investors introduced to it by such Agent to purchase
Notes.
(b) Subject to the terms and conditions stated herein, whenever
the
Company and any of you determine that the Company shall sell Notes
directly to
any of you as Purchaser, each such sale of Notes shall be made in
accordance
with the terms of this Agreement and, unless otherwise agreed by
the Company and
the Purchaser, any supplemental agreement relating thereto between
the Company
and the Purchaser. Each such supplemental agreement (which shall
be
substantially in the form of Exhibit B hereto) is herein referred
to as a "Terms
Agreement." The Purchaser's commitment to purchase Notes pursuant
to any Terms
Agreement shall be deemed to have been made on the basis of the
representations
and warranties of the Company herein contained and shall be subject
to the terms
and conditions herein set forth. Each Terms Agreement shall
describe the Notes
to be purchased by the Purchaser pursuant thereto, specify the
principal amount
of such Notes, the price to be paid to the Company for such Notes,
the rate at
which interest will be paid on the Notes, the Closing Date for such
Notes, the
place of delivery of the Notes and payment therefor, the method of
payment and
any modification of the requirements for the delivery of the
opinions of
counsel, the certificates from the Company or its officers, and the
letter from
the Company's independent public accounting firm, pursuant to
Section 6(b). Such
Terms Agreement shall also specify the period of time referred to
in Section
4(m). Except as set forth in any Terms Agreement, no commission
shall be payable
by the Company with respect to any sale of Notes pursuant to a
Terms Agreement.
Delivery
of the Notes sold to the Purchaser pursuant to any Terms
Agreement shall be made as agreed to between the Company and the
Purchaser as
set forth in the respective Terms Agreement, not later than the
Closing Date set
forth in such Terms Agreement, against payment of funds to the
Company in the
net amount due to the Company for such Notes by the method and in
the form set
forth in the respective Terms Agreement.
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3.
Offering and Sale of Notes.
Each Agent
and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures.
4.
Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement
or supplement
to the Prospectus (except for (i) periodic or current reports filed
under the
Exchange Act, (ii) a Pricing Supplement or (iii) a supplement
relating to an
offering of debt securities other than the Notes) unless the
Company has
furnished each of you a copy for your review prior to filing and
given each of
you a reasonable opportunity to comment on any such proposed
amendment or
supplement. Subject to the foregoing sentence, the Company will
cause each
supplement to the Prospectus to be filed with the Commission
pursuant to the
applicable paragraph of Rule 424 within the time period prescribed.
The Company
will promptly advise each of you (i) when the Prospectus, and any
supplement
thereto, shall have been filed with the Commission pursuant to Rule
424, (ii)
when, prior to the termination of the offering of the Notes, any
amendment of
the Registration Statement shall have been filed or become
effective, (iii) of
any request by the Commission for any amendment of the Registration
Statement or
supplement to the Prospectus or for any additional information,
(iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for
that purpose and (v) of the receipt by the Company of any
notification with
respect to the suspension of the qualification of the Notes for
sale in any
jurisdiction or the initiation or threatening of any proceeding for
such
purpose. The Company will use its reasonable best efforts to
prevent the
issuance of any such stop order and, if issued, to obtain as soon
as reasonably
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a
result of which
the Prospectus as then supplemented would include an untrue
statement of a
material fact or omit to state a material fact necessary to make
the statements
therein, in the light of the circumstances under which they were
made, not
misleading, or if it shall be necessary to amend the Registration
Statement or
to supplement the Prospectus to comply with the Act or the Exchange
Act or the
respective rules thereunder, the Company promptly will (i) notify
each of you to
suspend solicitation of offers to purchase Notes (and, if so
notified by the
Company, each of you shall forthwith suspend such solicitation and
cease using
the Prospectus as then supplemented), (ii) prepare and file with
the Commission,
subject to the first sentence of paragraph (a) of this Section 4,
an amendment
or supplement which will correct such statement or omission or
effect such
compliance and (iii) supply any supplemented Prospectus to each of
you in such
quantities as you may reasonably request; provided, however, that
should any
such event relate solely to activities of you, then you shall
assume the expense
of preparing and furnishing any such amendment or supplement. If
such amendment
or supplement, and any documents, certificates and opinions
furnished to each of
you pursuant to paragraphs (g), (j), (k) and (l) of this Section 4
in connection
with the preparation of filing of such amendment or supplement are
satisfactory
in all respects to you, you will, upon the filing of such amendment
or
supplement with the Commission and upon the
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effectiveness of an amendment to the Registration Statement, if
such an
amendment is required, resume your obligation to solicit offers to
purchase
Notes hereunder.
(c) During the term of this Agreement, the Company will timely
file
all documents required to be filed with the Commission pursuant to
Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, on the
date on which
the Company (or as soon as practicable thereafter) makes any
announcement to the
general public concerning earnings or concerning any other event
which is
required to be described, or which the Company proposes to
describe, in a
document filed pursuant to the Exchange Act, the Company will
furnish to each of
you the information contained in such announcement. The Company
will notify each
of you of any downgrading in the rating of the Notes or any other
debt
securities of the Company, or any public announcement of placement
of the Notes
or any other debt securities of the Company on what is commonly
termed a "watch
list" for possible downgrading, by any "nationally recognized
statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act), promptly
after the Company learns of any such downgrading or public
announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or
statements of the Company and its Subsidiary which will satisfy the
provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge (except as otherwise provided herein), a reasonable
number of
copies of the Registration Statement (including exhibits thereto)
and, so long
as delivery of a prospectus may be required by the Act, as many
copies of the
Prospectus and any supplement thereto as you may reasonably
request.
(f) The Company will arrange for the qualification of the Notes
for
sale under the laws of such jurisdictions as any of you may
designate, will
maintain such qualifications in effect so long as required for the
distribution
of the Notes, and upon your request will arrange for the
determination of the
legality of the Notes for purchase by institutional investors;
provided,
however, that the Company shall not be required to qualify as a
foreign
corporation or to file a general consent to service of process in
any
jurisdiction, to pay filing fees and other expenses in connection
therewith in
the aggregate exceeding $4,000, or to comply with any other
requirement
reasonably deemed by the Company to be unduly burdensome.
(g) During the term of this Agreement, the Company shall furnish
to
each of you (i) copies of all annual, quarterly and other reports
furnished to
stockholders, (ii) copies of all annual, quarterly and current
reports (without
exhibits but including documents incorporated by reference therein)
of the
Company filed with the Commission under the Exchange Act and (iii)
such other
information concerning the Company as you may reasonably request
from time to
time.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of
its obligations
under this Agreement, including the fees and disbursements of its
accountants
and counsel, the cost of printing or other production and delivery
of the
Registration Statement, the Prospectus, all amendments thereof
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and supplements thereto, the Indenture, this Agreement and all
other documents
relating to the offering, the cost of preparing, printing,
packaging and
delivering the Notes, the fees and disbursements, including
reasonable fees of
counsel, incurred pursuant to Section 4(f), the fees and
disbursements of the
Trustee and the fees of any ratings agency that rates the Notes,
(ii) reimburse
each of you on a monthly basis for all reasonable out-of-pocket
expenses
incurred by you in connection with this Agreement (including, but
not limited
to, advertising expenses), in the aggregate not to exceed $2,500
per Agent for
the term of this Agreement, and (iii) pay the reasonable fees and
expenses of
your counsel incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes
will be deemed to be a new making to you of the representations and
warranties
of the Company in Section 1 (except that such representations and
warranties
shall be deemed to relate solely to the Registration Statement as
then amended
and to the Prospectus as then amended and supplemented to relate to
such Notes).
(j) Except as otherwise provided in subsection (n) of this
Section
4, each time that the Registration Statement or the Prospectus is
amended or
supplemented (other than by (i) an amendment or supplement relating
to any
offering of debt securities other than the Notes or (ii) a Pricing
Supplement)
the Company will deliver or cause to be delivered promptly to each
of you a
certificate of the Company, signed by any of the Chairman of the
Board, the
President and Chief Executive Officer, any Vice President
having
responsibilities for financial matters or the Controller or the
Treasurer of the
Company, dated the date of the effectiveness of such amendment or
the date of
the filing of such supplement, in form reasonably satisfactory to
you, of the
same tenor as the certificate referred to in Section 5(d) but
modified to relate
to the last day of the fiscal quarter for which financial
statements of the
Company were last filed with the Commission and to the Registration
Statement
and the Prospectus as amended and supplemented to the time of the
effectiveness
of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this
Section
4, each time that the Registration Statement or the Prospectus is
amended or
supplemented (other than by (i) an amendment or supplement relating
to any
offering of debt securities other than the Notes or (ii) a Pricing
Supplement),
the Company shall furnish or cause to be furnished promptly to each
of you a
written opinion, satisfactory to you, by counsel for the Company,
dated the date
of the effectiveness of such amendment or the date of the filing of
such
supplement, in form satisfactory to each of you, of the same tenor
as the
opinion referred to in Section 5(b), but modified to relate to the
Registration
Statement and the Prospectus as amended and supplemented to the
time of the
effectiveness of such amendment or the filing of such supplement
or, in lieu of
such opinion, such counsel may furnish each of you with a letter to
the effect
that you may rely on such counsel's last opinion to the same extent
as though it
were dated the date of such letter authorizing reliance (except
that statements
in such last opinion will be deemed to relate to the Registration
Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of
such amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of this
Section
4, each time that the Registration Statement or the Prospectus is
amended or
supplemented (other than by (i) an amendment or supplement relating
to any
offering of debt securities other than the Notes or (ii) a Pricing
Supplement)
to set forth amended or supplemental financial information
(derived
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from the accounting records of the Company subject to the internal
controls of
the Company's accounting system or derived directly from such
records by
computation), the Company shall cause its registered independent
public
accounting firm promptly to furnish each of you a letter, dated the
date of the
effectiveness of such amendment or the date of the filing of such
supplement, in
form satisfactory to each of you, of the same tenor as the letter
referred to in
Section 5(e) with such changes as may be necessary to reflect the
amended and
supplemental financial information included or incorporated by
reference in the
Registration Statement and the Prospectus, as amended or
supplemented to the
date of such letter.
(m) During the period, if any, specified in any Terms Agreement,
the
Company shall not, without the prior consent of the Purchaser
thereunder, issue
or announce the proposed issuance of any of its debt securities,
including the
Notes, with maturities or other terms substantially similar to the
Notes being
purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the
provisions
of subsections (j), (k) and (l) of this Section 4 during any period
(which may
occur from time to time during the term of this Agreement) for
which the Company
has instructed the Agents to suspend the solicitation of offers to
purchase
Notes with respect to any Agent who is not a Purchaser holding
Notes during any
such period pursuant to any Terms Agreement. Whenever the Company
has instructed
the Agents to suspend the solicitation of offers to purchase Notes
for any such
period, however, prior to instructing the Agents to resume the
solicitation of
offers to purchase Notes or prior to entering into any Terms
Agreement, the
Company shall be required to comply with the provisions of
subsections (j), (k)
and (l) of this Section 4, but only to the extent of delivering or
causing to be
delivered the most recent certificate, opinion or letter, as the
case may be,
which would have otherwise been required under each such subsection
unless the
Agents otherwise reasonably request that such documents in respect
of prior
periods be delivered.
5.
Conditions to the Obligations of the Agents. The obligations of
each
Agent to solicit offers to purchase the Notes shall be subject to
(i) the
accuracy of the representations and warranties on the part of the
Company
contained herein as of the Execution Time, on the Effective Date
and when any
supplement to the Prospectus is filed with the Commission, (ii) the
accuracy of
the statements of the Company made in any certificates pursuant to
the
provisions hereof, (iii) the performance by the Company of its
obligations
hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Prospectus, and any such
supplement, shall
have been filed in the manner and within the time period required
by Rule 424;
and no stop order suspending the effectiveness of the Registration
Statement
shall have been issued and no proceedings for that purpose shall
have been
instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion
of
counsel for the Company, dated the Execution Time, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with
10
<PAGE>
power and
authority (corporate and governmental) to own its properties
and
conduct
its business as described in the Prospectus, as amended or
supplemented, and is duly qualified to do business in each
jurisdiction in
which it
owns or leases real property or in which the conduct of its
business
requires such qualification except where the failure to be so
qualified,
considering all such cases in the aggregate, does not involve a
material
risk to the business, properties, financial position or results
of
operations of the Company; provided, however, that at such time,
if
ever, the
Subsidiary constitutes 10% or more of the consolidated assets
of
the
Company or contributes 10% or more of the consolidated net income
of
the
Company for the then most recent 12-month period, the Agents
may
request
that counsel for the Company include in any written opinion to
them
required by this Section 5(b) or Section 4(k), an opinion to
the
effect
that the Subsidiary has been duly incorporated and is validly
existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and
governmental) to own its properties and conduct its business as
described
in the
Prospectus, as amended or supplemented, and is duly qualified to
do
business
in each jurisdiction in which it owns or leases real property
or
in which
the conduct of its business requires such qualification except
where the
failure to be so qualified, considering all such cases in the
aggregate,
does not involve a material risk to the business, properties,
financial
position or results of operations of the Company and the
Subsidiary
taken as a whole; and all of the outstanding shares of capital
stock of
the Subsidiary have been duly authorized and validly issued,
are
fully paid
and nonassessable and are owned beneficially by the Company
subject to
no security interest, other encumbrance, or adverse claim.
(ii) To the best of such counsel's knowledge and other than as
set forth
or contemplated in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or
of
which any
property of the Company is the subject which, if determined
adversely
to the Company, would individually or in the aggregate have a
material
adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and
its
Subsidiary,
taken as a whole; and, to the best of such counsel's
knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(iii) This Agreement has been duly authorized, executed and
delivered
by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered
by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as
to
enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting
the
enforcement of creditors' rights generally, to general
equitable
principles
(regardless of whether such enforceability is considered in a
proceeding
in equity or at law) and to an implied covenant of good faith
and fair
dealing; and the Indenture has been duly qualified under the
Trust
Indenture Act.
(v) The issuance and sale of the Notes have been duly and
validly
authorized by the Company and, when issued within the
limitations
set forth
in the
11
<PAGE>
applicable
order or orders from the Public Service Commission of the State
of New
York referred to in paragraph (x) below and executed and
authenticated in accordance with the provisions of the Indenture
and
delivered
to and paid for by the purchasers thereof in accordance with
this
Agreement, the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms,
subject,
as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to
or
affecting the enforcement of creditors' rights generally, to
general
equitable
principles (regardless of whether such enforceability is
considered
in a proceeding in equity or at law) and to an implied covenant
of good
faith and fair dealing, and will be entitled to the benefit
provided
by the Indenture equally and ratably with the securities
outstanding thereunder (except insofar as a sinking fund
established in
accordance
with the provisions of the Indenture may afford additional
benefit
for the securities of any particular series); and the Notes and
the
Indenture conform as to legal matters to the descriptions
thereof
contained
in the Registration Statement and the Prospectus.
(vi) The issue and sale of the Notes and the compliance by the
Company
with all of the provisions of the Notes, the Indenture and this
Agreement
and the consummation of the transactions therein and herein
contemplated (except as to compliance with any financial
covenant
requiring
an arithmetic computation not determinable at the Execution
Time
as to
which such counsel need express no opinion) will not conflict
with
or result
in a breach of any of the terms or provisions of, or constitute
a default
under, any indenture, mortgage, deed of trust, loan agreement
or
material
other agreement or instrument known, as of the date of such
opinion,
to such counsel to which the Company is a party or by which the
Company is
bound or to which any of the property or assets of the Company
is
subject, nor will such action result in any violation of the
provisions
of the
Company's Certificate of Incorporation, as amended, or the
Bylaws
of the
Company or any statute or any order, rule or regulation known,
as
of the
date of such opinion, to such counsel of any court or
governmental
agency or
body having jurisdiction over the Company or any of its
properties.
(vii) No consent, approval, authorization, order, registration
or
qualification of or with any court or governmental agency or
body
having
jurisdiction over the Company or any of its properties is
required
for the
issue and sale of the Notes or the consummation by the Company
of
the other
transactions contemplated by this Agreement or the Indenture,
except
such as have been obtained under the Act and the Trust
Indenture
Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws
in
connection with the public offering of the Notes, and except
for
filings
with and the order or orders from the Public Service Commission
of
the State
of New York authorizing the issuance and sale by the Company of
the Notes
subject to certain conditions set forth therein, which order or
orders
have been obtained and, to the best knowledge of such counsel,
are
in full
force and effect.
(viii) The Registration Statement, at the Effective Date, and
the
Prospectus, as of the date of such opinion (except as to the
financial
statements
and other financial or statistical data contained or
incorporated by reference therein and except for that part of
the
Registration Statement which shall constitute the Statements of
Eligibility and
12
<PAGE>
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee, as
to which
such counsel need express no opinion) comply as to form in all
material
respects with all applicable requirements of the Act, and, with
respect to
the documents or portions thereof filed with the Commission
pursuant
to the Exchange Act and incorporated by reference in the
Prospectus
pursuant to Item 12 of Form S-3, the Exchange Act and the
applicable
instructions, rules and regulations of the Commission
thereunder; on the basis of information received from the
Commission, at
the date
of such opinion, the Registration Statement has become
effective
under the
Act, and, to the best knowledge of such counsel, no proceedings
for a stop
order with respect thereto have been instituted or are pending
or
threatened under Section 8 of the Act; and based on such
counsel's
participation in the preparation of the Registration Statement
and
Prospectus
and its services as counsel to the Company (but such opinion
may state
that such counsel did not independently check or verify the
correctness of the statements made by the Company or factual
information
included
in the Registration Statement and Prospectus, and thereby may
assume the
correctness thereof, except insofar as such statements or
information relate to such counsel or are stated in the
Registration
Statement
or Prospectus as having been made on their authority as
experts),
no facts have come to the attention of such counsel to cause
them to
believe, and such counsel have no reason to believe, that the
Registration Statement, at the Effective Date, contained an
untrue
statement
of a material fact or omitted to state a material fact required
to be
stated therein or necessary to make the statements therein not
misleading
(except as to the financial statements or other financial or
statistical data contained in or incorporated by reference in
the
Registration Statement and the Prospectus and except for that part
of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of
the
Trustee), or that the Prospectus, as of the date of such
opinion,
includes
an untrue statement of a material fact or omits to state a
material
fact necessary in order to make the statements therein, in the
light of
the circumstances under which they were made, not misleading
(except as
to the financial statements or other financial or statistical
data
contained in or incorporated by reference in the Registration
Statement
and the Prospectus).
(ix) The Company's gas distribution activities are exempt from
the
Natural Gas Act.
(x) The Public Service Commission of the State of New York has
issued an
appropriate order or orders with respect to the issuance and
sale of
the Notes in accordance with this Agreement; to the best
knowledge
of such
counsel, such order or orders are still in full force and
effect;
the
issuance and sale of the Notes in accordance with this Agreement
and
subject to
the limitations set forth in such orders will conform with the
terms of
such order or orders.
As to
factual matters (including relating to the Company's financial
condition) included in said opinion, such counsel may rely upon
certificates of
public officials as of a recent date, the warranties and
representations of the
Company set forth in this Agreement, and certificates of the
Company made
pursuant to the provisions of this Agreement.
13
<PAGE>
(c) Each Agent shall have received from counsel for the Agents
an
opinion, dated the Execution Time, with respect to the issuance and
sale of the
Notes, the Indenture, the Registration Statement, the Prospectus
(together with
any supplement thereto) and other related matters as the Agents may
reasonably
require, and the Company shall have furnished to such counsel such
documents as
they reasonably request for the purpose of enabling them to pass
upon such
matters.
(d) The Company shall have furnished to each Agent a certificate
of
the Company, signed by any of the Chairman of the Board, the
President, the
Chief Financial Officer or any Vice President having
responsibilities for
financial matters, the Controller or the Treasurer of the Company,
dated the
Execution Time, to the effect that the signer of such certificate
has carefully
examined the Registration Statement, the Prospectus, any supplement
to the
Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in
this
Agreement are true and correct in all material respects and the
Company
has complied with all the agreements and satisfied all the
conditions
on its part to be performed or satisfied as a condition to the
obligation of
the Agents to solicit offers to purchase the Notes.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose
have been
instituted or, to the Company's knowledge, threatened.
(iii) (A) Neither the Company nor its Subsidiary has
sustained
since the date of the latest audited financial statements
included
or incorporated by reference in the Registration Statement and
the
Prospectus, any loss or interference with its business from
fire,
explosion,
flood or other calamity, whether or not covered by insurance,
or from
any labor dispute or court or governmental action, order or
decree,
which has had or is reasonably likely to have a material
adverse
effect on
the financial position, stockholders' equity or results of
operations
of the Company and its Subsidiary taken as a whole, otherwise
than as
set forth or contemplated in the Registration Statement and the
Prospectus
and (B) since the respective dates as of which information is
given in
the Registration Statement and the Prospectus, there has not
been
any change
in the capital stock (other than pursuant to any stock
purchase,
dividend reinvestment, savings, bonus, incentive, or similar
plan,
conversions of convertible securities into common stock, or
shares
of capital
stock issued or to be issued by the Subsidiary pursuant to one
or more
subscription agreements in effect between the Subsidiary and
the
Company at
the date hereof), or long-term debt (normal amortization of
debt
premium and discount, bank or finance company borrowings and
repayments
in the ordinary course, or additional issuances or repurchases
of
commercial paper) of the Company or its Subsidiary or any
material
adverse
change, or any development involving a prospective material
adverse
change, in or affecting the general affairs, management,
financial
position,
stockholders' equity or results of operations of the Company
and
its
Subsidiary taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus.
14
<PAGE>
(e) At the Execution Time, the Company's independent registered
public accounting firm shall have furnished to each Agent a letter,
dated as of
the Execution Time, in form and substance satisfactory to the
