Execution Version
Southern California Edison Company
$400,000,000 5.550% First and Refunding Mortgage Bonds, Series
2006E, Due 2037
Underwriting Agreement
New York, New York
December 4, 2006
ABN AMRO Incorporated
Greenwich Capital Markets, Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC
As Representatives of the several Underwriters
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York
10017
Ladies and Gentlemen:
Southern California Edison Company, a corporation organized under
the laws of the State of
California (the "Company"), proposes to sell to the several
underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, $400,000,000 principal
amount of its 5.550% First and Refunding Mortgage Bonds, Series
2006E, Due 2037 (the "Securities"), to be
issued under the One Hundred Fourteenth Supplemental Indenture (the
"Supplemental Indenture") to be dated as
of December 4, 2006, to a Trust Indenture dated as of October 1,
1923 (the "Trust Indenture" and, as
supplemented by the Supplemental Indenture, the "Indenture")
between the Company and The Bank of New York
Trust Company, N.A., as successor to Harris Trust and Savings Bank,
and D.G. Donovan, as successor trustee to
Pacific-Southwest Trust and Savings Bank, as trustees (the
"Trustees").
To the extent there are no additional
Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the
context requires.
Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary
Prospectus Supplement or the Final Prospectus Supplement 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 Base
Prospectus, any Preliminary Prospectus Supplement or the Final
Prospectus Supplement, as the case may be; and
any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus
Supplement or the Final Prospectus Supplement
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 Base
Prospectus, any Preliminary Prospectus
Supplement or the Final Prospectus Supplement, as the case may be,
deemed to be incorporated therein by
reference.
Certain terms used herein are defined in Section 19 hereof.
Page 1
1.
Representations
and
Warranties.
The
Company
represents
and
warrants
to, and agrees
with,
each
Underwriter as set forth below in this Section 1.
(a)
The Company
meets the
requirements
for use of Form S-3 under the Act and has prepared and filed with
the
Commission
an
automatic
shelf
registration
statement,
as defined in
Rule 405
(File
Number
333-136394) on Form S-3,
including a related Base Prospectus,
for
registration
under the Act of the
offering
and sale of the
Securities.
The
Company
may have
filed one or more
amendments
thereto,
including a Preliminary Prospectus
Supplement,
each of which has previously been furnished to you and
became
effective
upon
filing.
The Company
will next file with the
Commission
a Final
Prospectus
Supplement
relating to the Securities in accordance with Rule 424(b). The
Registration
Statement,
at
the Execution Time, is effective and meets the requirements set
forth in Rule 415(a)(1)(x).
(b)
On each Effective Date, the
Registration
Statement did, and when the Final
Prospectus
Supplement is
first
filed in
accordance
with Rule 424(b) and on the Closing
Date (as defined
herein),
the Final
Prospectus
Supplement
(and any
supplement
thereto) will,
comply in all material
respects with the
applicable
requirements
of the Act, the Exchange Act and the Trust
Indenture Act and the
respective
rules thereunder;
on each Effective Date and at the Execution Time, the Registration
Statement did not
and will not
contain
any untrue
statement
of a
material
fact or omit to state any
material
fact
required to be stated therein or necessary in order to make the
statements
therein not misleading;
on
each Effective
Date and on the Closing Date the Indenture did or will comply in
all material
respects
with the applicable
requirements of the Trust Indenture Act and the rules thereunder;
and on the date
of any filing
pursuant
to Rule
424(b)
and on the
Closing
Date,
the Final
Prospectus
Supplement
(together
with any
supplement
thereto)
will not include any 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 (i) that part of the
Registration
Statement which shall constitute
the
Statement
of
Eligibility
and
Qualification
(Form
T-1) under the Trust
Indenture
Act of the
Trustees or (ii) the information
contained in or omitted from the Registration
Statement or the Final
Prospectus
Supplement (or any supplement
thereto) in reliance upon and in conformity with information
furnished
in writing to the Company by or on behalf of any
Underwriter
through
the
Representatives
specifically
for inclusion in the Registration
Statement or the Final
Prospectus
Supplement (or any
supplement thereto),
it being understood and agreed that the only such information
furnished by or on
behalf of any Underwriter consists of the information described as
such in Section 8 hereof.
(c)
As of the Initial
Sale Time,
the
Disclosure
Package and the Final Term Sheet (as defined in Section
5(b) below) when taken together as a whole,
do not contain any untrue
statement of a material fact or
omit to state any material fact necessary in order to make the
statements
therein, in the light of the
circumstances
under which they were made,
not
misleading.
The preceding
sentence does not apply to
statements
in or
omissions
from the
Disclosure
Package or the Final
Term Sheet
based upon and in
conformity
with
written
information
furnished
to
the
Company
by
any
Underwriter
Page 2
through
the Representatives
specifically
for use
therein,
it being
understood
and
agreed
that
the only such information furnished by or on behalf of any
Underwriter consists of the information described
as such in Section 8 hereof.
(d)
(i) At the time of filing the
Registration
Statement,
(ii) at the time of the most recent
amendment
thereto for the purposes of complying
with Section
10(a)(3) of the Act (whether such amendment was by
post-effective
amendment,
incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange
Act or form of
prospectus),
(iii) at the time the Company or any person acting on its behalf
(within
the
meaning,
for this clause
only,
of Rule 163(c))
made any offer
relating to the
Securities
in
reliance on the
exemption
in Rule 163, and (iv) at the
Execution
Time (with such date being used as
the determination
date for purposes of this clause (iv)), the Company was or is (as
the case may be) a
"well-known
seasoned
issuer" as defined in Rule 405. The Company
agrees to pay the fees
required by
the Commission
relating to the Securities within the time required by Rule
456(b)(1) without regard to
the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(e)
(i) At the earliest
time after the filing of the
Registration
Statement
that the Company or another
offering
participant
made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities
and (ii) as of the Execution Time (with such date being used as the
determination
date for purposes of
this
clause
(ii)),
the
Company
was not and is not an
Ineligible
Issuer (as defined in Rule 405),
without
taking
account of any
determination
by the
Commission
pursuant to Rule 405 that it is not
necessary that the Company be considered an Ineligible Issuer.
(f)
Neither any Issuer Free
Writing
Prospectus
nor the Final Term Sheet
includes any
information
that
conflicts
with the
information
contained
in the
Registration
Statement,
including
any
document
incorporated by reference
therein and any prospectus
supplement
deemed to be a part thereof that has
not been
superseded or modified.
The foregoing
sentence does not apply to statements in or omissions
from the
Disclosure
Package
or the Final
Term
Sheet
based
upon and in
conformity
with
written
information
furnished to the Company by any Underwriter through the
Representatives
specifically for
use therein,
it being understood and agreed that the only such
information
furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(g)
The
Company
is not and,
after
giving
effect to the
offering
and sale of the
Securities
and the
application
of the proceeds
thereof as described in the
Preliminary
Prospectus
Supplement
and the
Final Prospectus
Supplement,
will not be an "investment company" as defined in the Investment
Company
Act of 1940, as amended.
(h)
The Company has been duly
incorporated and is validly existing as a corporation in good
standing under
the laws of the State of California
with full corporate
power and authority to own or lease,
as the
case may be, and to operate its
properties
and conduct its business as described in the
Registration
Statement,
Preliminary
Prospectus
Supplement and
the
Final
Prospectus
Supplement,
and is
duly
qualified to do business as
Page 3
a foreign
corporation
and is in good
standing
under the laws of each jurisdiction that requires such
qualification.
(i)
There is no
franchise,
contract
or other
document of a character
required to be
described
in the
Registration
Statement,
the Preliminary Prospectus Supplement or the Final Prospectus
Supplement,
or
to be filed as an exhibit thereto,
which is not described or filed as required;
and the statements in
the Preliminary
Prospectus Supplement and the Final Prospectus Supplement under the
heading "Summary -
Southern
California Edison Company" and the statements
incorporated
into the Preliminary
Prospectus
Supplement and the Final Prospectus
Supplement from the sections
entitled
"Business-Regulation"
and
"-Environmental
Matters"
in the
Company's
Annual
Report on Form
10-K for the
fiscal
year
ended
December
31, 2005 (the "Form
10-K"),
as
supplemented
by
information
contained
in the
Company's
subsequent
Quarterly Reports on Form 10-Q and Current Reports on Form 8-K,
which are incorporated into
the
Preliminary
Prospectus
Supplement
and the Final
Prospectus
Supplement,
fairly
summarize the
matters therein described in all material respects.
(j)
This Agreement has been duly authorized, executed and delivered by
the Company.
(k)
The Securities and the Indenture conform in all material respects
to the description
thereof contained
in the Registration
Statement,
Preliminary Prospectus Supplement and the Final Prospectus
Supplement;
each of the Trust
Indenture and the
Supplemental
Indenture
has been duly
authorized by the Company
and, assuming due
authorization,
execution and delivery thereof by the Trustees,
the Trust Indenture
constitutes
and, as
supplemented
by the
Supplemental
Indenture
when executed and delivered by the
Company,
will constitute a legal,
valid, and binding
instrument
enforceable
against the Company in
accordance
with its terms
(subject,
as to
enforcement of remedies,
to (A)
applicable
bankruptcy,
fraudulent
conveyance,
fraudulent
transfer,
reorganization,
insolvency,
moratorium,
equitable
subordination
or other laws affecting
creditors'
rights generally from time to time in effect and to
general principles of equity, (B) the terms of the franchises,
licenses,
easements,
leases, permits,
contracts and other instruments under which the mortgaged
property is held or operated,
(C) as to its
enforceability
in respect of the Company's
interest in nuclear energy
facilities,
the provisions of
the Atomic Energy Act of 1954 and regulations
thereunder,
(D) as to its
enforceability in respect of
the
interest
of the
Company
in the Four
Corners
Generating
Station
and the
easement
and lease
therefor,
to possible
defects in title,
including
possible
conflicting
grants or encumbrances not
ascertainable
because of the absence of or inadequacies in the applicable
recording law and the record
system of the Bureau of Indian Affairs and the Navajo Nation, to
the possible
inability of the Company
to resort to legal
process to enforce
its rights
against
the Navajo
Nation
without
Congressional
consent and, in the case of the Company's lease, to possible
impairment or termination
under certain
circumstances
by Congress or the Secretary of the Interior and (E) such other
liens,
prior rights and
encumbrances
none of which
(with the
possible
exception
of the
matter
referred
to in clause (D)
above),
with immaterial
exceptions,
affects from a legal standpoint the security for the Securities,
the ability of the Trustees to foreclose on the property
subject to the liens created by the Indenture
or the Company's
right to use
Page 4
such
properties in its
business);
the
Securities
have been duly and
validly
authorized,
and,
when issued and delivered to and paid for by the
Underwriters
pursuant to
this Agreement, will be fully paid and nonassessable.
(l)
No consent, approval,
authorization,
filing with or order of any court or governmental agency or body
is required in connection with the transactions
contemplated herein, except such as have been obtained
(i) under the Act,
(ii) from the
California
Public
Utilities
Commission
and (iii)
such as may be
required under the blue sky laws of any
jurisdiction in connection with the purchase and
distribution
of the
Securities
by the
Underwriters
in the manner
contemplated
herein
and in the
Registration
Statement, Preliminary Prospectus Supplement and the Final
Prospectus Supplement.
(m)
All such
filings,
recordings,
indexings and postings to
geographical
indexes have been made in (x)
county real estate records or offices of county recorders,
(y) Federal and State offices,
bureaus and
agencies
and (z)
offices of the Navajo
Nation as are
necessary
under
applicable
law to
perfect,
preserve
and protect the lien
created by the
Indenture
or ensure that such
filings,
recordations,
postings and indexings
are fully
effective to give
constructive
notice,
constructive
knowledge or
implied
notice,
as
applicable,
of such lien and the
property
subject
thereto to all
purchasers,
mortgagees and
encumbrancers
of such property
(other than
after-acquired
property) who become such
subsequent to the date of such recording, filing, posting or
indexing.
(n)
The Indenture will
constitute a legally valid first lien or charge,
to the extent that it purports to
be such,
on
substantially
all of the
property now owned by the Company to the extent and subject to
the exceptions,
defects, qualifications and other matters set forth or referred to
in the Registration
Statement,
Preliminary Prospectus Supplement and the Final Prospectus
Supplement or in Section 1(k) of
this
Agreement,
and to such
other
matters
that
do not
materially
affect
the
security
for the
Securities.
(o)
Neither the issue and sale of the
Securities
nor the
consummation
of any other of the
transactions
herein
contemplated nor the fulfillment of the terms hereof will conflict
with,
result in a breach or
violation
of, or
imposition
of any lien,
charge or
encumbrance
upon any property or assets of the
Company
or SCE
Funding
LLC
pursuant
to,
(i) the
articles
of
incorporation,
by-laws
or
other
organizational
documents of the Company or SCE Funding LLC,
(ii) the
terms of any
indenture
(other
than, solely with respect to the imposition of liens,
charges and encumbrances upon property or assets
of the Company or SCE Funding
LLC,
the lien
created by the
Indenture
in favor of the
Securities),
contract,
lease,
mortgage,
deed of
trust,
note
agreement,
loan
agreement
or
other
agreement,
obligation,
condition,
covenant or
instrument
to which the Company or SCE Funding LLC is a party or
bound or to which its or their
property is subject,
or
(iii) any
statute,
law,
rule,
regulation,
judgment,
order or decree applicable to the Company or SCE Funding LLC of any
court,
regulatory body,
administrative
agency,
governmental body,
arbitrator or other authority having jurisdiction over the
Company or SCE Funding LLC or any of its or their properties.
(p)
The
consolidated
historical
financial
statements and schedules of the Company and its
consolidated
subsidiaries
incorporated by reference in the Preliminary
Page 5
Prospectus Supplement,
the Final Prospectus Supplement and the Registration
Statement (the "Financial
Statements") present fairly in all material respects the financial
condition,
results of operations
and cash flows of the Company as of the dates and for the periods
indicated,
comply as to form with the
applicable
accounting
requirements of the Act and have been prepared in conformity with
generally
accepted
accounting
principles
applied on a consistent
basis
throughout the periods
involved
(except as
otherwise noted therein).
The selected financial
data set forth under the caption "Selected
Financial
Data" in the
Company's Form 10-K, incorporated by reference in the Preliminary
Prospectus
Supplement,
the Final Prospectus
Supplement and
Registration Statement fairly present, on the basis stated in the
Form 10-K,
the
information included therein.
The financial information included or incorporated in the
Preliminary
Prospectus Supplement and the Final Prospectus
Supplement complies with the requirements of
Regulation G and Item 10(e) of Regulation S-K under the Act.
(q)
PricewaterhouseCoopers
LLP, who have
certified
certain
financial
statements of the Company and its
consolidated
subsidiaries
and
delivered
their
report
with
respect
to the
audited
consolidated
financial
statements and schedules for the year ended December 31, 2005
incorporated
by reference in
the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus
Supplement, are
an independent
registered public accounting firm with respect to the Company
within the meaning of the
Act and the applicable published rules and regulations thereunder.
(r)
No action, suit or proceeding by or before any court or
governmental
agency,
authority or body or any
arbitrator
involving the Company or any of its subsidiaries or its or their
property is pending or, to
the best knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse
effect on the
performance of this Agreement or the
consummation
of any of the
transactions
contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect,
except as
set forth in or contemplated in the Registration
Statement,
Preliminary Prospectus Supplement and the
Final Prospectus Supplement (exclusive of any supplement thereto).
(s)
The Company
and its
subsidiaries
maintain 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.
(t)
Neither the Company nor SCE Funding is in violation or default of
(i) any
provision of its articles of
incorporation,
bylaws or other organizational
documents,
(ii) the terms of any indenture,
contract,
lease,
mortgage,
deed of trust,
note
agreement,
loan
agreement
or other
agreement,
obligation,
condition,
covenant or instrument to which it is a party or bound or to which
its property is subject,
or (iii) any statute, law,
Page 6
rule, regulation,
judgment,
order or decree of any court, regulatory body,
administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over it or
any of its
properties,
as
applicable
(except,
in the
case of
clauses
(ii) and
(iii),
for such
violations or defaults as would not, in the aggregate, have a
Material Adverse Effect).
(u)
The Company
possesses
all
licenses,
certificates,
permits and other
authorizations
issued by the
appropriate
national
and local U.S.
federal and state
regulatory
authorities
necessary to conduct
their
respective
businesses,
and the Company has not received any notice of proceedings
relating to
the revocation or modification of any such
certificate,
authorization
or permit which,
singly or in
the aggregate,
if the subject of an
unfavorable
decision,
ruling or finding,
would have a Material
Adverse
Effect,
except as set forth in or
contemplated in the
Registration
Statement,
Preliminary
Prospectus Supplement and the Final Prospectus Supplement
(exclusive of any supplement thereto).
(v)
The Company is (i) in compliance with any and all applicable
national and local U.S. federal and state
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 and are in compliance
with all permits,
licenses or other
approvals
required of them under
applicable
Environmental Laws to conduct their respective businesses and (iii)
has not received notice
of any actual or potential
liability for the
investigation
or remediation of any disposal or release
of
hazardous
or
toxic
substances
or
wastes,
pollutants
or
contaminants,
except
where
such
non-compliance
with
Environmental
Laws,
failure
to receive
required
permits,
licenses
or other
approvals,
or
liability
would
not
have a
Material
Adverse
Effect,
except
as set
forth
in or
contemplated in the Registration Statement,
Preliminary Prospectus Supplement and the Final Prospectus
Supplement
(exclusive
of any
supplement
thereto).
Except
as set forth in or
contemplated
in the
Registration
Statement,
Preliminary
Prospectus
Supplement
and
the
Final
Prospectus
Supplement
(exclusive of any supplement
thereto),
the Company has not been named as a
"potentially
responsible
party" under the
Comprehensive
Environmental
Response,
Compensation,
and Liability Act of 1980, as
amended.
(w)
In the ordinary course of its business,
the Company
periodically
reviews the effect of Environmental
Laws on the business,
operations and
properties of the Company,
in the course of which it identifies
and
evaluates
associated
costs and
liabilities
(including,
without
limitation,
any
capital
or
operating
expenditures
required for clean-up,
closure of properties or compliance with Environmental
Laws, or any permit,
license or approval,
any related
constraints
on operating
activities
and any
potential
liabilities
to third
parties).
On the basis of such
review,
the Company has
reasonably
concluded that such
associated
costs and liabilities
would not,
singly or in the aggregate,
have a
Material
Adverse
Effect,
except
as set
forth in or
contemplated
in the
Registration
Statement,
Preliminary
Prospectus
Supplement and the Final
Prospectus
Supplement
(exclusive of any supplement
thereto).
(x)
No holders of securities of the Company have rights to the
registration of such
securities
under the
Registration Statement.
Page 7
(y)
The Company owns or leases all such
properties
as are
necessary to the conduct of its
operations as
presently conducted.
(z)
The Company has not taken,
directly or indirectly,
any action designed to or that would constitute or
that
might
reasonably
be
expected
to cause or result
in,
under the
Exchange
Act or
otherwise,
stabilization
or
manipulation
of the price of any security of the Company to facilitate
the sale or
resale of the Securities.
(aa)
Except
as
set
forth
in or
contemplated
in
the
Registration
Statement,
Preliminary
Prospectus
Supplement
and the Final
Prospectus
Supplement
(exclusive of any supplement
thereto),
the minimum
funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended,
and the
regulations and published
interpretations
thereunder
("ERISA"),
has been satisfied by each
"pension
plan" (as defined in Section 3(2) of ERISA) which has been
established
or maintained by the
Company
and/or one or more of its
subsidiaries,
except
where the failure to satisfy
such
standard
would not have a Material
Adverse Effect;
each pension plan
established or maintained by the Company
and/or
one or more of its
subsidiaries,
and the
trust
forming
part of each
such
plan,
has been
determined by the Internal
Revenue
Service to be designed in accordance with Section 401 of the Code,
and each such pension plan has
subsequently
been
amended,
and the Company
believes
that each such
pension plan, as amended,
is designed in compliance
with Section 401 of the Code; each of the Company
and its subsidiaries has fulfilled its
obligations,
if any, under Section 515 of ERISA;
each pension
plan and welfare plan
established or maintained by the Company and/or one or more of its
subsidiaries
is in compliance in all material respects with the currently
applicable
provisions of ERISA, except in
such cases where
noncompliance
would not have a Material Adverse Effect;
and neither the Company nor
any of its subsidiaries has incurred or could reasonably be
expected to incur any withdrawal
liability
under Section 4201 of ERISA,
any liability
under Section 4062,
4063, or 4064 of ERISA,
or any other
liability under Title IV of ERISA.
(bb)
Except
as
set
forth
in or
contemplated
in
the
Registration
Statement,
Preliminary
Prospectus
Supplement
and the Final
Prospectus
Supplement
(exclusive of any supplement
thereto),
the Company
(i) does not have any material lending or other
relationship with any bank or lending affiliate of the
Underwriters
and
(ii) does
not
intend to use any of the
proceeds
from the sale of the
Securities
hereunder
to
repay
any
outstanding
debt
owed to any
affiliate
of the
Underwriters
other
than
commercial paper.
(cc)
There is and has been no failure
on the part of the
Company
and any of the
Company's
directors
or
officers,
in their
capacities as such,
to comply with Section 401 of the Sarbanes
Oxley Act of 2002
and the rules and
regulations
promulgated in connection
therewith (the "Sarbanes Oxley Act") related
to loans.
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
Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
Page 8
2.
Purchase and Sale.
Subject to the terms and
conditions and in reliance upon the
representations
and
warranties
herein set forth,
the Company agrees to sell to each
Underwriter,
and each
Underwriter
agrees,
severally
and not jointly,
to purchase
from the
Company,
at a purchase
price of 98.581% of the
principal
amount thereof,
the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule
I hereto.
3.
Delivery and Payment.
Delivery of and payment for the Securities
shall be made at 10:00 AM,
New York
City time,
on December 11, 2006 or at such time on such later date not more
than five
Business Days after the
foregoing
date as the
Representatives
shall
designate,
which date and time may be
postponed
by agreement
between
the
Representatives
and the
Company
or as
provided
in
Section 9 hereof
(such
date and time of
delivery and payment for the
Securities
being herein called the "Closing
Date").
Delivery of the Securities
shall be made to the Representatives for the respective
accounts of the several
Underwriters
against payment
by the several
Underwriters
through the Representatives of the purchase price thereof to or
upon the order of
the Company by wire
transfer
payable in same-day
funds to an account
specified by the Company.
Delivery of
the
Securities
shall
be
made
through
the
facilities
of
The
Depository
Trust
Company
unless
the
Representatives shall otherwise instruct.
4.
Offering
by
Underwriters.
It is
understood
that the
several
Underwriters
propose
to offer
the
Securities
for sale to the
public as set forth in the
Registration
Statement,
Disclosure
Package
and the
Final Prospectus Supplement.
5.
Agreements.
The Company agrees with the several Underwriters that:
(a)
Prior to the termination of the offering of the Securities,
the Company will not file any amendment of
the Registration
Statement or supplement (including the Final Prospectus Supplement
or any Preliminary
Prospectus
Supplement)
to the Base
Prospectus
unless the Company has
furnished you a copy for your
review
prior to
filing
and will not file any such
proposed
amendment
or
supplement
to which you
reasonably
object.
Subject to the
foregoing
sentence,
the Company will cause the Final
Prospectus
Supplement,
properly
completed,
and any
supplement
thereto to be filed in a form
approved
by the
Representatives
with the
Commission
pursuant to the applicable
paragraph of Rule 424(b)
within the
time period
prescribed and will provide evidence
satisfactory to the
Representatives
of such timely
filing.
The
Company
will
promptly
advise
the
Representatives
(1) when
the
Final
Prospectus
Supplement,
and any
supplement
thereto,
shall have been
filed (if
required)
with the
Commission
pursuant
to
Rule 424(b),
(2) when,
prior to
termination
of the
offering of the
Securities,
any
amendment to the Registration
Statement shall have been filed or become effective,
(3) of any request
by the
Commission or its staff for any amendment of the
Registration
Statement,
or any
Rule 462(b)
Registration
Statement, or for any supplement to the Final Prospectus Supplement
or for any additional
information,
(4) 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
(5) of
the
receipt
by the
Company
of any
notification
with
respect
to
the
suspension
of the
qualification
of the Securities for sale in any
jurisdiction or the institution or threatening of any
proceeding
for such
purpose.
The Company
will use its best
efforts to prevent the
issuance of any
such stop order or the
suspension
of any such
qualification
and,
if
issued,
Page 9
to obtain as soon as possible the
withdrawal of such stop order,
including,
if
necessary,
by filing
an amendment to the Registration
Statement or a new registration statement and using its best
efforts to
have such amendment or new registration statement declared
effective as soon as practicable.
(b)
The
Company
will
prepare a final term
sheet,
substantially
in the form of Schedule II hereto (the
"Final
Term
Sheet"),
and will file the Final
Term Sheet
pursuant
to Rule
433(d)
within the time
required by such Rule.
(c)
If there occurs an event or development
as a result of which the
Disclosure
Package would include an
untrue
statement of a material fact or would omit to state a material fact
necessary in order to make
the statements therein, in the light of the circumstances then
prevailing,
not misleading, the Company
will notify promptly the
Representatives
so that any use of the Disclosure Package may cease until it
is amended or supplemented.
(d)
If, at any time when a prospectus
relating to the Securities is required to be delivered under the
Act
(including in circumstances
where such
requirement may be satisfied
pursuant to Rule 172), any event
occurs as a result of which the Final
Prospectus
Supplement
as then
supplemented
would include any
untrue
statement
of a
material
fact or omit to
state
any
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,
file a new
registration
statement
or
supplement
the
Final
Prospectus
Supplement
to
comply
with
the
Act or the
Exchange
Act or the
respective
rules
thereunder,
including in
connection
with use or delivery of the Final
Prospectus
Supplement,
the Company promptly will (1) notify the
Representatives
of such event;
(2) prepare and
file with the
Commission,
subject to the second
sentence
of
paragraph (a)
of this
Section 5,
an
amendment or supplement or new registration
statement which will correct such statement or omission or
effect such compliance;
(3) use its best efforts to have any amendment to the
Registration
Statement
or new
registration
statement
declared
effective
as soon as
practicable
in order
to
avoid
any
disruption in use of the Final Prospectus Supplement;
and (4) supply any amended or supplemented Final
Prospectus Supplement to you in such quantities as you may
reasonably request.
(e)
As soon as practicable,
the Company will make generally
available to its security
holders and to the
Representatives
an earnings
statement or
statements of the Company and its
subsidiaries
which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f)
Upon
request,
the Company
will
furnish to the
Representatives
and
counsel for the
Underwriters,
without charge,
signed copies of the Registration
Statement
(including exhibits thereto) and to each
other
Underwriter a copy of the
Registration
Statement
(without
exhibits
thereto) and, so long as
delivery
of a
prospectus
by an
Underwriter
or dealer
may be
required
by the Act
(including
in
circumstances
where such
requirement
may be satisfied
pursuant to Rule 172), as many copies of each
Preliminary
Prospectus
Supplement,
the Final Prospectus and each Issuer Free Writing
Prospectus
Page 10
and any supplement thereto as the Representatives may reasonably
request. The Company will pay the
expenses of printing or other production of all documents relating
to the offering.
(g)
The Company will arrange,
if necessary,
for the
qualification
of the
Securities for sale under the
laws of such jurisdictions
