THE DETROIT EDISON
COMPANY
To the
Representatives of the
several Underwriters named in
Schedule I hereto.
The Detroit Edison
Company, a Michigan corporation (the “Company”)
proposes to issue and sell severally to the firms named in
Schedule I hereto (such firms constituting the
“Underwriters”) $300,000,000 aggregate principal amount
of the Company’s 2008 Series G 5.60% Senior Notes due
2018 with the terms specified in Schedule II hereto (the
“Securities”). The Securities will be issued pursuant
to the terms of an Indenture, dated as of June 30, 1993,
between the Company and The Bank of New York Trust Company, N.A.,
as successor trustee (the “Indenture Trustee”), as
amended and supplemented by various supplemental indentures
including the supplemental indenture (a “Supplemental
Indenture”) creating the Securities (the
“Indenture”). Payment of the principal of, premium, if
any, and interest on the Securities will be secured by the
Company’s General and Refunding Mortgage Bonds, 2008
Series G (“Mortgage Bonds”), to be issued under
the Mortgage and Deed of Trust, dated as of October 1, 1924,
between the Company and J.P. Morgan Trust Company, National
Association, as successor trustee (the “Mortgage
Trustee” and each of the Indenture Trustee and the Mortgage
Trustee, a “Trustee”), as amended and supplemented by
various supplemental indentures including the supplemental
indenture (a “Supplemental Mortgage Indenture”), and
pledged by the Company to the Indenture Trustee (such Mortgage
Bonds, the “Pledged Bond”).
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1.
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Subject to the terms and conditions
set forth herein, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Securities set
forth opposite the name of such Underwriter in Schedule I
hereto. The sale of the Securities will be made to the
Underwriters, for whom the firms designated as representatives of
the Underwriters of such Securities in Schedule II hereto will
act as representatives (the “Representatives”). The
obligations of the Underwriters under this Agreement shall be
several and not joint.
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2.
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The
Company represents and warrants to, and agrees with, each of the
Underwriters, on and as of the date hereof and the Time of Delivery
(as defined in Section 4) that:
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(a)
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A
registration statement on Form S-3 (No. 333-136815-01)
with respect to the Securities and other securities, copies of
which have been delivered to the Underwriters, has been prepared
and filed by the Company with the Securities and Exchange
Commission (the “Commission”). Such registration
statement, including a prospectus, has been declared effective
under the Securities Act of 1933, as amended (the
“Act”) and no stop order suspending its effectiveness
and/or notice objecting to its use has been issued and no
proceeding for that purpose or pursuant to Section 8A of the
Act against the Company or related to the offering has been
initiated or, to the best knowledge of the Company, threatened by
the Commission. The term “Registration Statement,” at
any given time, means such registration statement, including any
amendments thereto and any prospectus relating to the Securities
that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such Registration Statement pursuant to
Rule 430B under the Act at such time. Each date the
Registration Statement or any amendment (or any part thereof) is
considered to have become effective as to the Underwriters pursuant
to Section 11(d) of the Act and Rule 430B(f) promulgated
thereunder is herein called the “Effective Date.” The
base prospectus included in the Registration Statement relating to
the Securities and certain other issues of securities (exclusive of
any supplement filed pursuant to Rule 424 under the Act) is
herein called the “Basic Prospectus.” The Basic
Prospectus as amended and supplemented by a preliminary prospectus
supplement dated June 4, 2008 relating to the Securities
immediately prior to the Applicable Time (as defined below) is
hereinafter called the “Preliminary Prospectus.” The
Company proposes to file together with the Basic Prospectus and
pursuant to Rule 424 under the Act a final prospectus
supplement specifically related to the Securities and reflecting
the terms of the Securities and plan of distribution arising from
this Agreement (herein called the “Final Prospectus
Supplement”) and has previously advised the Underwriters of
all the information to be set forth therein. The term
“Prospectus” means the Basic Prospectus together with
the Final Prospectus Supplement, as first filed with the Commission
pursuant to Rule 424.
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Any
reference herein to the Registration Statement, Basic Prospectus,
the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein, or deemed to be incorporated by reference therein, and
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of such
Registration Statement, Basic Prospectus, Preliminary Prospectus or
Prospectus, as applicable; any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, Basic Prospectus, Preliminary Prospectus or Prospectus
shall be deemed to refer to and include, without limitation, the
filing of any document under the Exchange Act deemed to be
incorporated therein by reference after the date of such
Registration Statement, Basic Prospectus, Preliminary Prospectus or
Prospectus.
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For
purposes of this Agreement, the “Applicable Time” is
2:13 p.m. (New York time) on the date of this Agreement; the
documents listed on Schedule V hereto, taken together, are
collectively referred to as the “Pricing Disclosure
Package”.
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(b)
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The
documents incorporated by reference in the Registration Statement,
Pricing Disclosure Package or Prospectus, when they became
effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the
Registration Statement, Pricing Disclosure Package or Prospectus or
any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
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(c)
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The
Registration Statement, the Permitted Free Writing Prospectus, the
Preliminary Prospectus and the Prospectus conform, and any further
amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act
of 1939, as amended (the “Trust Indenture Act”), and
the respective rules and regulations of the Commission thereunder
and (A) the Registration Statement does not, and as of each
Effective Date and the effective date of any amendment thereto 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, (B) the Pricing
Disclosure Package did not, as of the Applicable Time, 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, and (C) the Prospectus, as
of its date, does not, and as of the respective dates of any
amendment or supplement thereto and at the Time of Delivery, 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, in light of the circumstances under
which they were made, not misleading; provided ,
however , that this representation and warranty shall not
apply to (i) any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use in the Registration Statement, Pricing Disclosure Package or
Prospectus or (ii) those parts of the Registration Statement
which constitute the Forms T-1;
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(d)
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Any
Permitted Free Writing Prospectus listed on Schedule V hereto
does not include anything that conflicts with the information
contained in the Registration Statement, Preliminary Prospectus or
Prospectus;
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(e)
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At
the determination date for purposes of the Securities within the
meaning of Rule 164(h) under the Act, the Company was not an
“ineligible issuer” as defined in Rule
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405
under the Act; the Company meets the requirements for use of Form
S-3 under the Act, and was and is eligible to register and issue
the Securities as a “well-known seasoned issuer” as
defined in Rule 405 under the Act; the Company has paid the
registration fee for this offering pursuant to Rule 456(b)(1)
under the Act or will pay such fees within the time period required
by such rule (without giving effect to the proviso therein) and in
any event prior to the Time of Delivery;
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(f)
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Neither the Company nor any of its
Significant Subsidiaries (as defined below) has sustained since the
date of the latest audited financial statements included or
incorporated by reference in the Registration Statement, Pricing
Disclosure Package and Prospectus any material 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, otherwise than as
set forth or contemplated in the Pricing Disclosure Package and
Prospectus; and, since the respective dates as of which information
is given in the Registration Statement, Pricing Disclosure Package
and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change (in
either case not in the ordinary course of business), in or
affecting the general affairs, management, 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 Pricing Disclosure Package and Prospectus;
“Significant Subsidiary” shall mean each subsidiary
listed on Schedule III hereof; the only subsidiaries of the
Company are (i) those subsidiaries listed on Schedule III
and (ii) certain other subsidiaries which, considered in the
aggregate as a single subsidiary, do not constitute a
“significant subsidiary” as defined in Rule 1-02
of Regulation S-X of the rules and regulations under the
Act;
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(g)
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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
Pricing Disclosure Package and Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the current or future financial
position, shareholder’s equity or results of operations of
the Company and its subsidiaries, taken as a whole; and, except as
described in the Pricing Disclosure Package and the Prospectus, the
Company holds all material licenses, certificates and permits (or
has applications pending) from governmental authorities necessary
for the conduct of its business;
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(h)
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Each Significant Subsidiary, if any,
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 Pricing Disclosure Package
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and
Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the current or future consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, except as described in
the Pricing Disclosure Package and the Prospectus, each Significant
Subsidiary of the Company holds all material licenses, certificates
and permits (or has applications pending) from governmental
authorities necessary for the conduct of its business;
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(i)
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The
Company has an authorized capitalization as set forth in the
Pricing Disclosure Package and Prospectus;
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(j)
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This Agreement has been duly
authorized, executed and delivered by the Company;
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(k)
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The
Company has good and marketable title to all properties standing of
record in its name (which includes, without limitation, all of
those properties, except pollution control facilities standing in
the names of certain municipalities which are being purchased by
the Company pursuant to installment sales contracts and the
undivided ownership interest of Michigan Public Power Agency in a
portion of the Belle River Power Plant, in each case as described
in the Pricing Disclosure Package and Prospectus, which constitute
or on which there are erected its principal plants, generating
stations and substations and on which its general office and
service buildings are constructed and all other important parcels
of real estate) and improvements thereon, subject to the lien of
the Mortgage and to minor exceptions and minor defects,
irregularities and deficiencies which in the opinion of the
Company, do not materially impair the use of such property for the
purpose for which it is held by the Company, and the Company has
adequate rights to maintain and operate such of its distribution
facilities as are located on public or other property not owned by
the Company;
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(l)
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The
Mortgage is a first lien (subject to no prior liens, charges,
encumbrances or security interests, except current taxes and
assessments not yet due and minor encumbrances which do not
materially impair the use of such property for the purpose for
which it is held by the Company) duly filed and recorded, on
substantially all of the Company’s tangible properties and
franchises (other than items purchased for resale in the ordinary
course of business) and (subject to the necessity for particular
filings and recordings in the case of certain personal property
such as railroad rolling stock) will constitute a like lien on any
such properties hereafter acquired by the Company except that any
such after-acquired property will be subject to prior liens and
encumbrances, if any, existing when acquired by the Company, except
that the Mortgage will not become a lien upon after-acquired real
property in a new county until it has been duly filed and recorded
and except that the Mortgage may not be effective as to property
acquired subsequent to the filing of a case with respect to the
Company under the Bankruptcy Code (defined as Title 11, United
States Code, Sections 1 et seq., as amended);
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(m)
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The
Securities have been duly authorized, and, when issued and
authenticated pursuant to the Indenture and delivered pursuant to
this Agreement, will have been duly executed, authenticated, issued
and delivered, will be entitled to the benefits of the Indenture,
and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms except as the
enforceability thereof may be limited by (i) bankruptcy,
insolvency, fraudulent transfer, reorganization, or other laws of
general applicability relating to or affecting creditors’
rights and (ii) general equity principles; each of the Mortgage and
the Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, at the Time of Delivery (as defined in
Section 4 hereof), the Mortgage and the Indenture will each
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization or other laws of general applicability relating to
or affecting creditors’ rights and (ii) general equity
principles; and the Mortgage and the Indenture each conforms, and
the Securities will conform, to the descriptions thereof contained
in the Pricing Disclosure Package and Prospectus;
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(n)
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The
Pledged Bond has been duly authorized and established in conformity
with the provisions of the Mortgage and, when the Pledged Bond has
been executed and authenticated in accordance with the provisions
of the Mortgage and pledged to the Indenture Trustee as
contemplated by the Indenture, the Pledged Bond will be entitled to
the benefits of the Mortgage and will be a valid and binding
obligation of the Company, enforceable in accordance with its terms
except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, or other laws of general applicability relating to
or affecting creditors’ rights and (ii) general equity
principles; the payments of the principal of, premium, if any, and
interest on the Securities are secured by the Pledged Bond;
assuming that the Indenture Trustee holds the Pledged Bond as
provided in the Indenture, the Indenture creates a valid and
perfected first priority security interest in the Pledged Bond; and
the Mortgage conforms, and the Pledged Bond will conform, to the
descriptions thereof contained in the Pricing Disclosure Package
and Prospectus;
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(o)
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The
issue and sale of the Securities and the execution, delivery and
performance of and the compliance by the Company with all of the
provisions of the Securities, the Mortgage, 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 material contract indenture, mortgage, deed of
trust, loan agreement, note, lease or other material 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
(1) 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 except for a violation that would not
reasonably be expected to have a material adverse effect on the
current or future consolidated financial position,
shareholder’s equity or results of operations
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of
the Company and its subsidiaries, taken as a whole; or (2) the
provisions of the Restated Articles of Incorporation or Bylaws of
the Company; and the Order of the Federal Energy Regulatory
Commission, dated May 1, 2008 has been obtained and is in full
force and effect and is sufficient to authorize the issuance and
sale by the Company of the Securities as contemplated by this
Agreement, and no other 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, the execution, delivery, performance of and
compliance by the Company with all of the provisions of this
Agreement or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Mortgage,
except such as have been, or will have been prior to the Time of
Delivery, 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 purchase and distribution of the
Securities by the Underwriters;
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(p)
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The
statements set forth in the Pricing Disclosure Package and
Prospectus with respect to the Securities under the captions
“Description of Notes” and “Description of Debt
Securities” (or similar captions), insofar as they purport to
constitute a summary of the terms of the Securities and, if
applicable, under the caption “Taxation” (or similar
caption), 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 summaries in all material
respects;
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(q)
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Neither the Company nor any of its
Significant Subsidiaries is (i) in violation of its articles
of incorporation or other equivalent document, or by-laws, or (ii)
except for any default which would not reasonably be expected to
have a material adverse effect on the current or future
consolidated financial position, shareholder’s equity or
results of operations of the Company and its subsidiaries, taken as
a whole, in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
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(r)
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Other than as set forth in the
Pricing Disclosure Package and Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any of their properties 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, shareholder’s equity or results of
operations of the Company and its subsidiaries, taken as a whole;
and, other than as set forth in the Pricing Disclosure Package and
Prospectus, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
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(s)
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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”);
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(t)
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Deloitte & Touche LLP, who
audited the audited financial statements and supporting schedules
of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, Pricing
Disclosure Package and the Prospectus, is an independent registered
public accounting firm with respect to the Company and its
consolidated subsidiaries as required by the Act and the rules and
regulations thereunder;
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(u)
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There is and has been no material
failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402
related to loans.
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(v)
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The
Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (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. The
Company’s internal controls over financial reporting are
effective and the Company is not aware of any material weakness in
its internal controls over financial reporting.
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(w)
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The
Company maintains “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Exchange
Act); based on an evaluation carried out by management of the
Company, the Company has concluded that such disclosure controls
and procedures are effective.
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(x)
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The
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, Pricing Disclosure Package and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of
operations, cash flows and shareholder’s equity of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved. The Company has no material contingent obligation
which is not disclosed in the Registration Statement, Pricing
Disclosure Package and the Prospectus. The supporting schedules, if
any, included in the Registration Statement, Pricing Disclosure
Package and the Prospectus present fairly in accordance with GAAP
the information required to be stated therein. If
applicable,
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the
pro forma financial statements of the Company and its consolidated
subsidiaries and the related notes thereto included in the
Registration Statement, Pricing Disclosure Package and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have
been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein; and
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(y)
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Other than as set forth in the
Pricing Disclosure Package and Prospectus, the Company and its
Significant Subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”),
(ii) have received (or have pending) 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 current
or future consolidated financial position, shareholder’s
equity or results of operations of the Company and its
subsidiaries, taken as a whole.
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3.
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Upon the execution of this
Agreement, the several Underwriters propose to offer the Securities
for sale upon the terms and conditions contemplated by this
Agreement and the Pricing Disclosure Package.
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4.
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The
Securities to be purchased by each Underwriter pursuant to this
Agreement, in fully registered global form registered in the name
of Cede & Co., and in such authorized denominations and
registered in such names as the Representatives may request upon at
least forty-eight hours’ prior notice to the Company, shall
be delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor in the
manner specified in Schedule II hereto, payable to the order
of the Company, all at the place and time and date specified in
Schedule II hereto or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such
time and date being herein called the “Time of
Delivery” for such Securities.
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5.
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(a)
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The
Company represents and agrees that, without the prior consent of
the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the
Act, other than a Permitted Free Writing Prospectus (as defined
below); each Underwriter, severally and not jointly, represents and
agrees that, without the prior consent of the Company and the
Representatives, it has not made and will not
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make any offer relating to the
Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act, other
than a Permitted Free Writing Prospectus or a free writing
prospectus that is not required to be filed by the Company pursuant
to Rule 433 under the Act (for the avoidance of doubt, the
Underwriters are authorized to use the information contained in the
pricing term sheet prepared and filed pursuant to Section 5(b)
hereof relating to the final terms of the Securities in
communications conveying information relating to the offering to
investors); any such free writing prospectus (which shall include
the pricing term sheet discussed in Section 5(b) hereof), the use
of which has been consented to by the Company and the
Representatives, is listed on Schedule V hereto and is herein
called a “Permitted Free Writing
Prospectus”;
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(b)
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The
Company agrees to prepare a term sheet specifying the terms of the
Securities, substantially in the form of Schedule V hereto and
approved by the Representatives, and to file such term sheet
pursuant to Rule 433(d) under the Act within the time period
prescribed by such Rule;
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(c)
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The
Company and the Representatives have complied and will comply with
the requirements of Rule 433 under the Act applicable to any
free writing prospectus, including timely Commission filing where
required and legending;
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(d)
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The
Company agrees that if at any time following issuance of a
Permitted Free Writing Prospectus any event occurred or occurs as a
result of which (i) such Permitted Free Writing Prospectus
would conflict with the information in the Registration Statement,
Preliminary Prospectus or Prospectus or (ii) the Pricing
Disclosure Package would 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, in light of
the circumstances under which they were made, not misleading, then
the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish
without charge to each Underwriter a free writing prospectus or
other document, the use of which has been consented to by the
Representatives, which will correct such conflict, statement or
omission.
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6.
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The
Company agrees with each of the Underwriters:
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(a)
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To
prepare the Preliminary Prospectus and Prospectus in relation to
the Securities in a form approved by the Representatives and to
file such Preliminary Prospectus and Prospectus pursuant to Rule
424(b) under the Act within the time periods prescribed by such
Rule; to make no further amendment or any supplement to the
Registration Statement, Preliminary Prospectus or Prospectus after
the date hereof and prior to the Time of Delivery for such
Securities unless the Company has furnished the Representatives for
such Securities with a copy for their review and comment a
reasonable time period prior to filing and has reasonably
considered any comments of the Representatives; to advise the
Representatives promptly of any such amendment or supplement after
such Time of Delivery and to furnish the Representatives with
copies thereof in such quantities as the Representatives
may
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reasonably request; 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 (or the notice referred to in
Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities, and during such same period to
advise the Representatives, promptly after it receives notice
thereof, of (i) 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, (ii) 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 or any notice
objecting to its use, (iii) the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, (iv) the initiation or threatening of any
proceeding for any such purpose, or (v) any request by the
Commission for the amending or supplementing of the Registration
Statement, Pricing Disclosure Package or Prospectus or for
additional information (including receipt of any comments of the
Commission on any of the foregoing); 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 every reasonable
effort to obtain the withdrawal of such order;
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(b)
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Promptly from time to time to take
such action as the Representatives may reasonably request to
qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Representatives may request and
to comply, so far as it is able, 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 the
Securities, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or as a
securities dealer or to file a general consent to service of
process in any jurisdiction or to comply with any other
requirements deemed by the Company to be unduly
burdensome;
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(c)
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Prior to 3:00 p.m., New York City
time, on the business day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters with
copies of the Prospectus as then amended or supplemented in New
York City in such quantities as the Representatives may reasonably
request, and, if the delivery of a prospectus (or the notice
referred to in Rule 173(a) under the Act) is required at any time
in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the
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Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or
effect such compliance;
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