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EXHIBIT 1.2
EXECUTION
COPY
$350,000,000
Public Service Company of New Mexico
7.95% Notes Due 2018
May
8, 2008
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As
Representatives of the several
Underwriters
named in Schedule 1 attached hereto,
c/o
Lehman Brothers Inc.
745
Seventh Avenue
New
York, New York 10019
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
4
World Financial Center
New
York, New York 10080
Ladies
and Gentlemen:
Public
Service Company of New Mexico, a New Mexico corporation (the
“ Company ”),
proposes to issue and sell $350.0 million aggregate principal
amount of its 7.95% notes due 2018 (the “Notes”)
to the several underwriters named in Schedule
1 hereto (the “ Underwriters
”), for which Lehman Brothers Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated are acting as
representatives (the “ Representatives
”). The Notes will (i) have terms and
provisions which are summarized in the Pricing Disclosure
Package as of the Applicable Time and the Prospectus dated as
of the date hereof (each as defined in Section 1(a) hereof)
and (ii) be issued pursuant to an Indenture dated as of August
1, 1998 between the Company and The Bank of New York (as
successor to JPMorgan Chase Bank, N.A.), as Trustee (the
“ Trustee ”)
(the “ Indenture
”), as supplemented by the third supplemental indenture
to be dated as of May 13, 2008 between the Company and the
Trustee (the “ Supplemental
Indenture .”) This agreement (this
“ Agreement ”)
is to confirm the agreement concerning the purchase of the
Notes from the Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company
. The Company represents, warrants and agrees
that:
(a)
Filing of Registration Statement and Preliminary Prospectus; No
Stop Order : (i) A registration statement
on Form S-3 (File No. 333-106079) (the “ First Registration
Statement ”) and a registration statement on Form S-3
(File No. 333-150024) (the “ Second Registration
Statement ” and together with the First Registration
Statement, the “ Initial Registration
Statements
”) relating to certain securities to be issued from time to
time by the Company have been prepared by the Company
in
conformity
with the requirements of the Securities Act of 1933, as amended
(the “ Securities Act
”), and the rules and regulations (the “ Rules and Regulations
”) of the Securities and Exchange Commission (the “
Commission
”) thereunder; (ii) the Initial Registration Statements
have been filed with the Commission under the Securities
Act; (iii) the Initial Registration Statements and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to the Initial Registration Statements and any
post-effective amendments thereto, but including all documents
incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been
declared effective by the Commission in such forms; and (iv) other
than a registration statement, if any, increasing the size of the
offering (a “ Rule 462(b) Registration
Statement
”), filed pursuant to Rule 462(b) under the Securities Act,
which became effective upon filing, no other document with respect
to the Initial Registration Statements, any post-effective
amendment thereto or any document incorporated by reference therein
has heretofore been filed or transmitted for filing with the
Commission (other than for prospectuses filed pursuant to Rule
424(b) under the Securities Act) each in the form heretofore
delivered to the Representatives. Copies of such Initial
Registration Statements and any amendment thereto have been
delivered by the Company to the
Representatives. Pursuant to Rule 429 under the
Securities Act, the Second Registration Statement contains a
combined Base Prospectus to be used in connection with both the
Initial Registration Statements. Pursuant to Rule 429 under the
Securities Act, the Second Registration Statement, upon its
effectiveness under the Securities Act, acted as a post-effective
amendment to the First Registration Statement. As used
in this Agreement:
(i)
“
Applicable
Time ” means 8:00 p.m. (New York City time) on May 8,
2008;
(ii)
“
Base
Prospectus ” means the base prospectus filed as part
of the Registration Statement, in the form in which it has most
recently been amended on or prior to the date hereof, relating to
the Notes;
(iii)
“
Delivery
Date” shall have the meaning set forth in Section
4;
(iv)
“
Effective
Date ” means any date as of which any part of such
registration statement or post effective amendment thereto relating
to the Notes became, or is deemed to have become, effective under
the Securities Act in accordance with the Rules and Regulations
(including pursuant to Rule 430B of the Rules and
Regulations;
(v)
“
Final Term
Sheet ” means the term sheet prepared pursuant to
Section 5(a)(i) of this Agreement and substantially in the form
attached in Schedule 3 hereto;
(vi)
“
Issuer Free
Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Notes, including the Final Term Sheet;
2
(vii)
“
Preliminary
Prospectus ” means any preliminary prospectus relating
to the Notes included in such registration statement or filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations, including any preliminary prospectus supplement
thereto relating to the Notes;
(viii)
“
Pricing Disclosure
Package ” means, as of the Applicable Time, the most
recent Preliminary Prospectus, together with the information
included on Schedule 2 and each Issuer Free Writing Prospectus
filed or used by the Company on or before the Applicable Time,
other than a road show that is an Issuer Free Writing Prospectus
under Rule 433 of the Rules and Regulations;
(ix)
“
Prospectus
” means the final prospectus relating to the Notes, including
any prospectus supplement thereto relating to the Notes, as filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(x)
“
Registration
Statements ” means, collectively, the Initial
Registration Statements, any post-effective amendments thereto and
the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statements at the
time the Initial Registration Statements became effective, but
excluding the Statement of Eligibility and Qualification on Form
T-1, each as amended at the time the Initial Registration
Statements or any post-effective amendment thereto became effective
or the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective.
Any
reference to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under
the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may
be. Any reference to the “most recent
Preliminary Prospectus” shall be deemed to refer to the
latest Preliminary Prospectus included in the Registration
Statement or filed pursuant to Rule 424(b) prior to or on the
date hereof (including, for purposes hereof, any documents
incorporated by reference therein prior to or on the date
hereof). Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the
“ Exchange
Act
”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the
Company on Form 10-K filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act after the Effective
Date that is incorporated by reference in the Registration
Statement.
3
The
Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or
suspending the effectiveness of the Registration Statement,
and no proceeding or examination for such purpose has been
instituted or, to the knowledge of the Company, threatened by
the Commission. The Commission has not notified the
Company of any objection to the use of the form of the
Registration Statement.
(b)
Conformity to Description of Registration Statement, Preliminary
Prospectus, Prospectus : The Registration
Statement conformed and will conform in all material respects on
the Effective Date and on the Delivery Date, and any amendment to
the Registration Statement filed after the date hereof will conform
in all material respects, when filed, to the requirements of the
Securities Act and the Rules and Regulations. The
Preliminary Prospectus conformed, and the Prospectus will conform,
in all material respects when filed with the Commission pursuant to
Rule 424(b) and on the Delivery Date to the requirements of the
Securities Act and the Rules and Regulations. The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus conformed, and any further documents so
incorporated will conform, when filed with the Commission, in all
material respects to the requirements of the Exchange Act or the
Securities Act, as applicable, and the rules and regulations of the
Commission thereunder.
(c)
Registration Statement : The Registration
Statement did not, as of the Effective Date, 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 that no
representation or warranty is made as to information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e) or in a separate letter addressing such
information.
(d)
Prospectus : The Prospectus will not, as of its
date and on the Delivery Date, 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 the
light of the circumstances under which they were made, not
misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Prospectus in reliance upon and in conformity
with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 8(e)
or in a separate letter addressing such information.
(e)
Incorporated Documents : The documents
incorporated by reference in the Registration Statement, any
Preliminary Prospectus or the Prospectus did not, and any further
documents filed and incorporated by reference therein will not,
when filed with the Commission, 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 the
light of the circumstances under which they were made, not
misleading; provided that the
foregoing representation and warranty is given on the basis that
any statement contained in a document incorporated by reference
therein shall be deemed not to be contained therein if the
statement has been modified or superseded by any statement in a
subsequently filed document incorporated by reference therein or in
any amendment or supplement thereto.
4
(f)
Pricing Disclosure Package : 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, in the
light of the circumstances under which they were made, not
misleading; provided that no
representation or warranty is made as to information contained in
or omitted from the Pricing Disclosure Package in reliance upon and
in conformity with written information furnished to the Company
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified
in Section 8(e) or in a separate letter addressing such
information.
(g)
Issuer Free Writing Prospectus : Each Issuer Free
Writing Prospectus (including, without limitation, any road show
that is a free writing prospectus under Rule 433) when considered
together with the Pricing Disclosure Package as of the Applicable
Time, did 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 the light of the
circumstances under which they were made, not
misleading.
(h)
Conformity to Description, Use, and Retaining of Issuer Free
Writing Prospectuses : Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Company has complied
with any filing requirements applicable to such Issuer Free Writing
Prospectus pursuant to the Rules and Regulations. The Company has
not made any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representatives. The Company will, pursuant to reasonable
procedures developed in good faith, retain in accordance with the
Rules and Regulations all Issuer Free Writing Prospectuses that
were not required to be filed pursuant to the Rules and
Regulations.
(i)
Due Incorporation and Qualification : The Company
has been duly incorporated or organized, is validly existing as a
corporation or other business entity in good standing under the
laws of the jurisdiction in which it is chartered or organized with
full corporate power and authority to own its properties and
conduct its business as described in any Preliminary Prospectus and
the Prospectus. The Company is duly qualified to do
business as a foreign corporation or other business entity and is
in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified or
in good standing could not, in the aggregate, reasonably be
expected to have a material adverse effect on (i) the condition
(financial or otherwise), results of operations,
stockholders’ equity, properties or business of the Company
and its subsidiaries taken as a whole or (ii) the ability of the
Company to perform its obligations under this Agreement, the
Indenture, the Supplemental Indenture or the Notes (a “
Material Adverse
Effect ”). The Company does not own or
control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Schedule 1(j)
attached hereto. None of the subsidiaries of the Company
is a “significant subsidiary” (within the meaning of
Rule 1-02(w) of Regulation S-X under the Securities
Act).
5
(j)
Capitalization : The Company has an authorized
capitalization as set forth in each of the most recent Preliminary
Prospectus and the Prospectus.
(k)
The Indenture and the Supplemental Indenture
: (i) The Indenture has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement
of the Company enforceable against the Company in accordance with
its terms; and (ii) the Supplemental Indenture has been duly
authorized and, when executed and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except in each
case as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting
creditors’ rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law). The Indenture (i)
has been duly qualified under the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), (ii) complies, and
as supplemented by the Supplemental Indenture will comply, as to
form with the requirements of the Trust Indenture Act and (iii)
conforms, and the Supplemental Indenture when executed and
delivered will conform, to the description thereof in the most
recent Preliminary Prospectus and the Prospectus.
(l)
The Notes : The Notes have been duly authorized by the
Company and, when executed by the Company and authenticated by the
Trustee in accordance with the Indenture and delivered to the
Underwriters against payment therefor in accordance with the terms
of this Agreement, will be validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture and the Supplemental Indenture and
enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law),
and the Notes conform, or will conform, to the description thereof
in the Pricing Disclosure Package and the Prospectus.
(m)
Underwriting Agreement : The Company has all the
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company.
(n)
No Conflicts : The execution, delivery and
performance of this Agreement by the Company, the issue and sale of
the Notes, the consummation of the transactions contemplated
hereby, the Indenture and the Supplemental Indenture and the
application of the proceeds from the sale of the Notes as described
under “Use of Proceeds” in the most recent Preliminary
Prospectus will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, impose any lien,
charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; (ii) result in any violation of
the provisions of the charter, by-laws or other organizational
documents of the Company or any of its subsidiaries; or
(iii) result in any violation of 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 subsidiaries or
any of their properties.
6
(o)
No Consents Required : No consent, approval,
authorization or order of, or filing or registration with, any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties is
required to be obtained by the Company for the execution, delivery
and performance of this Agreement, the Indenture, the
Supplemental Indenture or the Notes by the Company, the
consummation of the transactions contemplated hereby, the
application of the proceeds from the sale of the Notes as described
under “Use of Proceeds” in the most recent Preliminary
Prospectus, except for the registration of the Notes under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable
state securities or blue sky laws in connection with the purchase
and sale of the Notes by the Underwriters.
(p)
No Material Adverse Changes : Except as described
in the most recent Preliminary Prospectus, 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 most recent Preliminary 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, and since such date,
there has not been any change in the capital stock, long-term debt,
consolidated net current assets or stockholders’ equity of
the Company and/or any of its subsidiaries or any adverse change,
or any development involving a prospective adverse change, in or
affecting the condition (financial or otherwise), results of
operations, stockholders’ equity, properties, management,
business or prospects of the Company and its subsidiaries taken as
a whole, in each case except as could not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(q)
Historical Financial Statements : The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries included or incorporated
by reference in the most recent Preliminary Prospectus comply as to
form in all material respects with the requirements of Regulation
S-X under the Securities Act and present fairly in all material
respects the consolidated financial condition of the Company and
its consolidated subsidiaries as of the dates indicated therein and
the consolidated results of their operations and cash flows for the
periods specified therein. Except as stated therein,
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods
involved.
(r)
Independent Public Accountants : Deloitte &
Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries, and which have audited
the Company’s internal control over financial reporting and
management’s assessment thereof, are an independent
registered public accounting firm as required by the Securities Act
and the Rules and Regulations and the rules and regulations of the
Public Company Accounting Oversight Board.
7
(s)
Compliance : The Company owns or leases all such
properties as are necessary to the conduct of its operations as
presently conducted. The Company is not in
non-compliance with any term or condition of, nor has failed to
obtain and maintain in effect, any license, certificate, permit or
other governmental authorization required for the ownership or
lease of its property or the conduct of its business, which
violation, non-compliance or failure, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, except as set forth the most recent Preliminary
Prospectus. The Company has not received notice of any
proceedings relating to the revocation or material modification of
any such license, certificate, permit or other
authorization.
(t)
Investment Company Act : The Company is not, and
as of the Delivery Date and, after giving effect to the offer and
sale of the Notes and the application of the proceeds therefrom as
described under “Use of Proceeds” in the most recent
Preliminary Prospectus and the Prospectus, will not be, an
“investment company” within the meaning of such term
under the Investment Company Act of 1940, as amended (the “
Investment Company
Act ”).
(u)
Litigation : Other than as set forth in the most
recent Preliminary Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect or
could, in the aggregate, reasonably be expected to have a material
adverse effect on the performance of this Agreement, the Indenture,
the Supplemental Indenture or the Notes or the consummation of the
transactions contemplated hereby. To the Company’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(v)
No Labor Disturbance : No labor disturbance by or
dispute with the employees of the Company exists or is, to the best
knowledge of the Company, threatened or is imminent that could
reasonably be expected to have a Material Adverse Effect, except as
set forth in the most recent Preliminary Prospectus.
(w)
No Defaults : The Company is not in violation of
its charter, bylaws or other organizational documents, nor, except
as would not reasonably be likely to have a Material Adverse
Effect, (i) is in default in the performance or observance of any
term, material obligation, 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 is
bound or to which any of its properties is subject, (ii) is in
violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over it or
its property nor (iii) has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct
of its business.
8
(x)
Sarbanes-Oxley : To the best of its knowledge,
the Company is in compliance in all material respects with the
applicable provisions of the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) that are effective and the rules
and regulations of the SEC that have been adopted and are effective
thereunder.
(y)
Environmental Matters : Except as described in
the most recent Preliminary Prospectus, each of the Company and
each of its subsidiaries (i) is in compliance with any and all
applicable 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) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to
conduct its business and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except where
such non-compliance with Environmental Laws or failure to receive,
or comply with the terms and conditions of required permits,
licenses or approvals, would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(z)
Accounting Controls and Disclosure Controls : The
Company and its subsidiaries maintain (x) systems 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 and (y)
disclosure controls and procedures (as defined in Rule 13a-15(e)
under the Exchange Act).
(aa)
Distribution and of Offering Materials : The
Company has not distributed and, prior to the later to occur of the
Delivery Date and completion of the distribution of the Notes, will
not distribute any offering material in connection with the
offering and sale of the Notes other than any Preliminary
Prospectus, the Prospectus, and any Issuer Free Writing Prospectus
to which the Representatives have consented (which consent being
deemed to have been given with respect to (i) the Final Term Sheet
prepared and filed pursuant to Section 5(a)(i) hereof and (ii) any
other Issuer Free Writing Prospectus identified on Schedule 3
hereto).
(bb)
Anti-Manipulation : The Company has not taken,
directly or indirectly, any action intended or which might
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company in a
manner which would violate the Securities Act or the Exchange
Act.
Any
certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in
connection with the offering of the Notes shall be deemed a
representation and warranty by the Company, as to matters
covered thereby but only as of the date thereof, to each
Underwriter.
9
2.
Purchase of the Notes by the Underwriters.
On the basis of the representations and
warranties contained in, and subject to the terms and conditions
of, this Agreement, the Company agrees to sell to the several
Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company, at a price equal to
99.00% of the principal amount thereof, plus accrued interest, if
any, from May 13, 2008, the principal amount of the
Notes set forth opposite that Underwriter’s name in
Schedule
1 hereto.
3.
Offering of Notes by the Underwriters
. Upon authorization by the Representatives of the
release of the Notes, the several Underwriters propose to offer the
Notes for sale upon the terms and conditions to be set forth in the
Prospectus.
4.
Delivery of and Payment for the Notes. Delivery
of and payment for the Notes shall be made at 10:00 A.M., New York
City time, on the third full business day following the date of
this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as
the “ Delivery Date
.” Delivery of the Notes will be made to the
Representatives for the account of each Underwriter against payment
by the several Underwriters through the Representatives and of the
aggregate purchase price of the Notes being sold by the Company to
or upon the order of the Company of the purchase price therefor by
wire transfer of immediately available funds. Time shall
be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation
of each Underwriter hereunder. The Company shall deliver
the Notes through the facilities of DTC unless the Representatives
shall otherwise instruct. Upon delivery, the Notes shall
be registered in the name of Cede & Co., as nominee for
DTC.
5.
Further Agreements of the Company and the Underwriters
. (a) The Company agrees:
(i)
Filing of Prospectus; Amendments and Supplements; Filing of
Exchange Act Reports; Notice of Stop Orders : To
prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of
business on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Prospectus prior to
the Delivery Date except as provided herein; to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment or supplement to the Registration Statement
or the Prospectus has been filed and to furnish the Representatives
with copies thereof and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Notes;
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 subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with
the offering or sale of the Notes; to prepare the Final Term Sheet,
substantially in the form of Schedule 3 hereto and approved by the
Representatives and file the Final Term Sheet pursuant to Rule
433(d) of the Rules and Regulations within the time period
prescribed by such Rule; to advise the Representatives, promptly
after it receives notice thereof, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use
of the Prospectus or any Issuer Free Writing Prospectus, of
the
10
suspension
of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening by the Commission of
any proceeding or examination for any such purpose, of any notice
from the Commission objecting to the use of the form of the
Registration Statement or any post effective amendment thereto, or
of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or any Issuer Free Writing
Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(ii)
Payment of Commission Fees : If the Company
elects to rely upon Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date
of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Securities
Act; and
(iii)
Copies of Preliminary Prospectus, Prospectus, Issuer Free Writing
Prospectus and Incorporated Documents; Certain Events and
Amendments or Supplements : To deliver promptly
to the Representatives on or prior to the Delivery Date such number
of the following documents as the Representatives shall reasonably
request: (A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits other than this Agreement and the
computation of per share earnings), (B) each Preliminary
Prospectus, the Prospectus and any amended or supplemented
Prospectus, (C) the Final Term Sheet and each other Issuer Free
Writing Prospectus and (D) any document incorporated by reference
in any Preliminary Prospectus or the Prospectus; and, if the
delivery of a prospectus is required at any time after the date
hereof in connection with the offering or sale of the Notes and if
at such time any events 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 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 Securities
Act or the Exchange 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 Representatives may from time to time
reasonably request of an amended or supplemented Prospectus that
will correct such statement or omission or effect such
compliance;
(iv)
Filing of Amendments or Supplements : To file
promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment
of the Company or the Representatives, be required by the
Securities Act or requested by the Commission;
11
(v)
Furnishing of Amendments or Supplements : Prior to filing
with the Commission any amendment or supplement to the Registration
Statement or the Prospectus, any document incorporated by reference
in the Prospectus or any amendment to any document incorporated by
reference in the Prospectus, to furnish a copy thereof to the
Representatives and counsel for the Underwriters and not file any
of the same with the Commission to which the Representatives shall
reasonably object, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the
Notes;
(vi)
Offers by Issuer Free Writing Prospectuses : Not
to make any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus without the prior written consent of
the Representatives (which consent being deemed to have been given
with respect to (A) the Final Term Sheet prepared and filed
pursuant to Section 5(a)(i) hereof and (B) any other Issuer Free
Writing Prospectus identified on Schedule 3 hereto);
(vii)
Rule 433; Certain Events and Amendments or Supplements to Issuer
Free Writing Prospectus : To comply with all
applicable requirements of Rule 433 with respect to any Issuer Free
Writing Prospectus; and if at any time after the date hereof any
events shall have occurred as a result of which any Issuer Free
Writing Prospectus, as then amended or supplemented, would conflict
with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or 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, not misleading, or,
if for any other reason it shall be necessary to amend or
supplement any Issuer Free Writing Prospectus, to notify the
Representatives and, upon their request, to file such document and
to prepare and furnish without charge to each Underwriter as many
copies as the Representatives may from time to time reasonably
request of an amended or supplemented Issuer Free Writing
Prospectus that will correct such conflict, statement or omission
or effect such compliance;
(viii)
Earning Statement : As soon as practicable after
the Effective Date and in any event not later than 16 months after
the date hereof, to make generally available to the Company’s
security holders and to deliver to the Representatives an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including in accordance with Rule 158 under
the Securities Act);
(ix)
Blue Sky Qualifications : Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify the Notes 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 the
Notes; provided that in
connection therewith the Company shall not be required to (i)
qualify as a foreign corporation in any jurisdiction in which it
would not otherwise be required to so qualify, (ii) file a general
consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any jurisdiction in which it would
not otherwise be subject;
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(x)
Clear Market : Until 10 days
following the Delivery Date, the Company will not, without the
prior written consent of the Representatives, directly or
indirectly, issue, sell, offer to sell, grant any option for the
sale of or otherwise dispose of, any debt securities that are
substantially similar to the Notes (including, without limitation,
with respect to the maturity, currency, interest rate and other
material terms of the Notes), provided that this
Section 5(a)(x) does not apply to the issuance of up to
$392,345,000 of Pollution Control Revenue Refunding Bonds and
Related Senior Unsecured Notes;
(xi)
Application of Net Proceeds : To apply the net
proceeds from the sale of the Notes being sold by the Company as
set forth in the Prospectus; and
(x)
Anti-manipulation
: Not to at any time, directly or indirectly, take
any action intended, or which might reasonably be expected, to
cause or result in the stabilization or manipulation of the
price of any security of the Company in a manner that would
violate the Securities Act or the Exchange Act.
(b) Each
Underwriter severally agrees that, unless it obtains the
prior consent of the Company, it has not made and will not
make any offer relating to the Notes that would constitute an
“issuer free writing prospectus,” as defined in
Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required
to be filed with the Commission; provided, however, that the
Underwriters may use a term sheet substantially in the form
of Schedule 3 hereto without the consent of the
Company. Any such free writing prospectus
consented to by the Company is hereinafter referred to as
“Permitted Issuer Information.”
6.
Expenses. The Company agrees, whether or
not the transactions contemplated by this Agreement, the Indenture
and the Supplemental Indenture are consummated or this Agreement is
terminated, to pay all costs, expenses, fees and taxes incident to
and in connection with (a) the authorization, issuance, sale and
delivery of the Notes and any stamp duties or other taxes payable
in that connection; (b) the preparation, printing and filing under
the Securities Act of the Registration Statement (including any
exhibits thereto), any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus and any amendment or supplement
thereto; (c) the distribution of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and any amendment or
supplement thereto, or any document incorporated by reference
therein, all as provided in this Agreement; (d) the production and
distribution of this Agreement, the Indenture, the Supplemental
Indenture and the Notes and any other related documents in
connection with the offering, purchase, sale and delivery of the
Notes; (e) the qualification of the Notes under the securities laws
of the several jurisdictions as provided in Section 5(a)(x) and the
preparation, printing and distribution of a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters
in an amount that is not greater than $5,000); (f) the
services of the Trustee and any agent of the Trustee (including the
fees and disbursements of counsel for the Trustee); (g) the
investor presentations on any “road show” undertaken in
connection with the marketing of the Notes, including, without
limitation, expenses associated with any electronic roadshow,
travel and lodging expenses of the representatives and officers of
the Company and the cost of any aircraft chartered in connection
with the road show; (h) the services of the Company’s
independent registered public accounting firm; (i) the services of
the Company’s counsel; (j) any rating of the Notes by rating
agencies; (k) any required review by the Financial Industry
Regulatory Authority of the terms of the sale of the Notes
(including related fees and expenses of counsel to the
Underwriters); and (l) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement;
provided
that, except as provided in this Section 6 and in Section 11, the
Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the
Notes which they may sell and the expenses of advertising any
offering of the Notes made by the Underwriters.
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7.
Conditions of Underwriters’ Obligations
. The respective obligations of the Underwriters
hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional
terms and conditions:
(a)
Filing of Prospectus and Free Writing Prospectus; No Stop
Order : The Prospectus shall have been timely
filed with the Commission in accordance with Section 5(a)(i); the
Company shall have complied with all filing requirements applicable
to any Issuer Free Writing Prospectus used or referred to after the
date hereof; no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Prospectus or any Issuer Free Writing Prospectus shall have been
issued and no proceeding or examination for such
purpose shall have been initiated or, to the knowledge
of the Company, threatened by the Commission; any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus shall have been complied
with; and the Commission shall not have notified the Company of any
objection to the use of the form of the Registration
Statement.
(b)
No Discovery of Untrue Statements or Omissions
: No Underwriter shall have discovered and disclosed to
the Company on or prior to the Delivery Date that the Registration
Statement, the Prospectus or the Pricing Disclosure Package, or any
amendment or supplement thereto, contains an untrue statement of a
fact which, in the opinion of Simpson Thacher & Bartlett LLP,
counsel for the Underwriters, is material or omits to
state
