Exhibit 1.2
Southern California
Gas Company
First Mortgage Bonds
Underwriting Agreement
—
— , —
—
—
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As Representatives of the several
Underwriters
Ladies and Gentlemen:
Southern California
Gas Company, a California corporation (the “
Company ”), confirms its agreement with each of the
Underwriters named in Schedule I hereto (collectively, the
“ Underwriters ,” which term shall also include
any underwriter substituted as hereinafter provided in
Section 9 hereof), for whom —
, —
and —
are acting as representatives (the
“ Representatives ”), with respect to the issue
and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of $ —
aggregate principal amount of the
Company’s —
% First Mortgage Bonds,
Series —
, due —
(the “ Bonds ”).
The Bonds are to be issued pursuant to an indenture dated
October 1, 1940, as amended and supplemented to date,
including the Supplemental Indenture dated as of
—
—
, —
(the “ Indenture
”), between the Company and U.S. Bank National Association,
as successor trustee to U.S. Bank Trust National Association (the
“ Trustee ”).
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a shelf registration statement on Form S-3 (File
No. 333- —
) under the Securities Act of 1933,
as amended (the “ Act ”) for the registration of
the Company’s first mortgage bonds (the “ First
Mortgage Bonds ”) (such registration statement, as
amended, including the information deemed pursuant to
Rule 430B under the rules and regulations of the Commission
under the Act (the “ Rules and Regulations ”) to
be part of the registration statement at the time of its
effectiveness (“ Rule 430B Information ”)
the “ Initial Registration Statement ”); the
Initial Registration Statement and any post-effective amendments
thereto subsequent to the date hereof, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding
exhibits to the Initial Registration Statement but including all
documents incorporated by reference in the prospectus contained in
such Initial Registration Statement, to the Representatives for
each of the other Underwriters, has been declared effective by the
Commission in such form; a registration statement, if any,
increasing the size of the offering, filed pursuant to
Rule 462(b) of the Rules and Regulations is herein referred to
as the “ Rule 462(b) Registration Statement
.”
The term “ Registration
Statement ” means, collectively, the various parts of the
Initial Registration Statement, any post-effective amendment
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 Statement at the
time such part of the Initial Registration Statement became
effective but excluding any Form T-1, each as amended at the
time such part of the Initial Registration Statement became
effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective. The
Company proposes to file with the Commission pursuant to
Rule 424(b) of the Rules and Regulations the Prospectus
Supplement (as defined in Section 5(h)) hereof) relating to
the Bonds and the prospectus dated —
—
, —
(the “ Base Prospectus
”), and has previously advised you of all further information
(financial and other) with respect to the Company set forth
therein. The Base Prospectus together with the Prospectus
Supplement, in their respective forms on the date hereof (being the
forms in which they are to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations), including all
documents incorporated or deemed to be incorporated by reference
therein through the date hereof, are hereinafter referred to as,
collectively, the “ Prospectus ,” except that if
any revised prospectus or prospectus supplement shall be provided
to the Underwriters by the Company for use in connection with the
offering and sale of the Bonds which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) of
the Rules and Regulations), the term “Prospectus” shall
refer to such revised prospectus or prospectus supplement, as the
case may be, from and after the time it is first provided to the
Underwriters for such use. The term “ Preliminary
Prospectus ,” as used in this Agreement, means the
preliminary prospectus supplement dated —
—
, —
and filed with the Commission
on —
—
, —
pursuant to Rule 424(b) of the
Rules and Regulations, together with the Base Prospectus used with
such preliminary prospectus supplement in connection with the
marketing of the Bonds, in each case as amended or supplemented by
the Company. Unless the context otherwise requires, all references
in this Agreement to documents, financial statements and schedules
and other information which is “contained,”
“included,” “stated,” “described
in” or “referred to” in the Registration
Statement, the Preliminary Prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and
include all such documents, financial statements and schedules and
other information which is or is deemed to be incorporated by
reference in the Registration Statement, the Preliminary Prospectus
or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), after the date of this Agreement
which is or is deemed to be incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be.
At or prior to —
[p.m.] (New York City time) on the
date hereof, which was the time when sales of the Bonds were first
made (such time, the “ Applicable Time ”), the
Company had prepared the following information (collectively the
“ Pricing Disclosure Package ”): the Preliminary
Prospectus and each “free-writing prospectus” (as
defined pursuant to Rule 405 of the Rules and Regulations)
listed on Schedule II hereto.
1. The Company represents and
warrants to each Underwriter as of the date hereof (such date being
hereinafter referred to as the “ Representation Date
”), as of the Applicable Time, and as of the Time of Delivery
referred to in Section 4 as follows:
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(a) No order preventing or
suspending the use of the Preliminary Prospectus has been issued by
the Commission, and the Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Act and
did not contain any 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;
provided , however, that the representations and
warranties in this subsection (a) shall not apply to
statements in or omissions from the Preliminary Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Preliminary Prospectus.
(b) The Pricing Disclosure Package,
at the Applicable Time did not contain 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 representations and warranties in this
subsection (b) shall not apply to statements in or omissions
from the Pricing Disclosure Package made in reliance upon and in
conformity with information furnished to the Company in writing by
any Underwriter through the Representatives expressly for use in
such Pricing Disclosure Package.
(c) The Company (including its
agents and representatives, other than the Underwriters in their
capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as
defined in Rule 405 of the Rules and Regulations) that
constitutes an offer to sell or solicitation of an offer to buy the
Bonds (each such communication by the Company or its agents and
representatives other than the Underwriters in their capacity as
such (other than a communication referred to in clauses (i),
(ii) and (iii) below) an “ Issuer Free Writing
Prospectus ”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Rules and or Rule 134 of the Rules and Regulations,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Schedule II hereto and
(v) any electronic road show or other written communications,
in each case approved in writing in advance by the Representatives.
Each such Issuer Free Writing Prospectus complied in all material
respects with the Act, has been or will be (within the time period
specified in Rule 433 of the Rules and Regulations) filed (to
the extent required thereby) in accordance with the Act and when
taken together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, such Issuer Free Writing
Prospectus, did not, and at the Time of Delivery will not, contain
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
representations and warranties in this subsection (c) shall
not apply to statements in or omissions from any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the public offer and sale of the Bonds or until any earlier date
that the Company notified or notifies the Representatives as
described in Section 5(c), did
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not, does not and will not include
any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement, the
Prospectus or the Preliminary Prospectus that has not been
superseded or modified.
(d) Each of the Registration
Statement and the Base Prospectus, at the respective times the
Registration Statement and any post-effective amendments thereto
became effective and as of the Representation Date, complied and
comply in all material respects with the requirements of the Act
and the Rules and Regulations (including Rule 415(a) of the
Rules and Regulations), and the Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”), and the
rules and regulations of the Commission under the Trust Indenture
Act, and did not and as of the Representation Date and at the Time
of Delivery do 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. No order
suspending the effectiveness of the Registration Statement has been
issued under the Act and no proceedings for that purpose or
pursuant to Section 8A of the Act against the Company or
related to the offering of the Bonds have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with. The Prospectus, at
the Representation Date (unless the term “Prospectus”
refers to a prospectus which has been provided to the Underwriters
by the Company for use in connection with the offering of the
Securities which differs from the Prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations, in which case at the time it is first provided to the
Underwriters for such use) and at the Time of Delivery, does not
and will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however, that the
representations and warranties in this subsection (d) shall
not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus or the information
contained in any Statement of Eligibility and Qualification of a
trustee under the Trust Indenture Act filed as an exhibit to the
Registration Statement (a “ Form T-1
”).
(e) The documents filed by the
Company and incorporated or deemed to be incorporated by reference
into the Registration Statement, the Prospectus and the Pricing
Disclosure Package pursuant to Item 12 of Form S-3 under
the Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder (the “ Exchange Act
Regulations ”), and, when read together and with the
other information in the Registration Statement, the Prospectus and
the Pricing Disclosure Package, at the respective times the
Registration Statement and any amendments thereto became effective,
at the Representation Date, the Applicable Time and at the Time of
Delivery, did not, do not 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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(f) The Company and its subsidiaries
taken as a whole have not sustained since the date of the latest
audited financial statements included or incorporated by reference
in the 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 the
Prospectus; and, since the date as of which information is given in
the 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 subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, 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 or
the Prospectus;
(g) 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 power and
authority (corporate and other) to own its properties and conduct
its business as described in the Pricing Disclosure Package and the
Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, except where the failure to be so qualified would
not subject it to material liability or disability; the
subsidiaries of the Company, considered in the aggregate as a
single subsidiary, do not constitute a “significant
subsidiary” as defined in Rule 1-02 of Regulation
S-X;
(h) The Company has an authorized
capitalization as set forth in the Pricing Disclosure Package and
the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable and conform to the description
thereof contained in the Prospectus;
(i) The Bonds have been duly
authorized for issuance and sale by the Company and, when the Bonds
are issued and delivered pursuant to this Agreement, the Bonds will
have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and duly qualified under the
Trust Indenture Act and, at the Time of Delivery, the Indenture
will constitute a valid and legally binding instrument, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, receivership, liquidation, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and the
Indenture conforms, and the Bonds will conform, to the descriptions
thereof contained in the Pricing Disclosure Package and the
Prospectus as amended or supplemented;
(j) This Agreement has been duly
authorized, executed and delivered by the Company;
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(k) The issue and sale of the Bonds
and the compliance by the Company with all of the provisions of the
Bonds, 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 agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
material properties or assets of the Company is subject, nor will
such action result in any violation of the provisions of the
Restated Articles of Incorporation or Bylaws of the Company or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or
any of its material properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Bonds or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act, the Trust
Indenture Act and from the Public Utilities Commission of the State
of California 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 Bonds by the Underwriters;
(l) The statements set forth in the
Pricing Disclosure Package and the Prospectus as amended or
supplemented under the captions “Description of First
Mortgage Bonds” and “Supplemental Description of First
Mortgage Bonds,” insofar as they purport to constitute a
summary of the terms of the First Mortgage Bonds or the Indenture,
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 and fair in all material respects;
(m) The Company is not (i) in
violation of its Restated Articles of Incorporation or Bylaws or
(ii) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except in the
case of clause (ii) for such defaults which, individually or
in the aggregate, would not reasonably be expected to have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(n) Other than as set forth in the
Pricing Disclosure Package and the Prospectus, (i) 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 except for
such proceedings which, if determined adversely to the Company,
would not reasonably be expected individually or in the aggregate
to have a material adverse effect on the financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole and (ii) 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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(o) The Company is not and after
giving effect to the offering and sale of the Bonds, will not be,
an “investment company,” as such term is defined in the
Investment Company Act of 1940, as amended (the “
Investment Company Act ”);
(p) Deloitte &
Touche LLP, who have certified certain financial statements of
the Company and its subsidiaries taken as a whole, is an
independent registered public accounting firm as required by the
Act and the Rules and Regulations and the rules and regulations of
the Public Company Accounting Oversight Board;
(q) The financial statements of the
Company and its consolidated subsidiaries included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and Prospectus present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results
of their operations for the periods specified; and, 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;
(r) The Company and each of its
consolidated subsidiaries 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 U.S.
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 material
differences.
(s) The Company and each of its
consolidated subsidiaries maintain “disclosure controls and
procedures” (as such term is defined in Rule 13a-15(e) under
the Exchange Act); such disclosure controls and procedures are
effective.
(t) The Company and its subsidiaries
possess such certificates, authorities or permits issued by the
appropriate state, federal, local or foreign regulatory agencies or
bodies necessary to conduct the businesses now operated by them,
except where the failure to possess such certificates, authorities
or permits, individually or in the aggregate, would not have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and neither the Company nor
any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding would have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(u) The Company and its subsidiaries
are in compliance with, and conduct their respective businesses in
conformity with, all applicable state, federal, local
and
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foreign laws and regulations
relating to the operation and ownership of a public utility,
including, without limitation, those relating to the distribution
and transmission of natural gas, except to the extent that any
failure so to comply or conform would not individually or in the
aggregate have a material adverse effect on the consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a
whole;
(v) The Public Utilities Commission
of the State of California has duly authorized the issuance and
sale of the Bonds by the Company on the terms set forth in the
Prospectus and in this Agreement, such authorizations are in full
force and effect and no authorization of any other governmental
agency having regulatory jurisdiction over the Company is required
for such issuance and sale except such as may be required by the
securities or blue sky laws of any jurisdiction;
(w) The Company and its subsidiaries
hold all franchises, certificates of public convenience and
necessity, permits, licenses and easements necessary to own,
operate and maintain their properties as described in the
Prospectus except to the extent that such failure, individually or
in the aggregate, would not reasonably be expected to have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(x) The Company and its subsidiaries
have good and valid title to all the principal plants and other
important units of their property and to all other real estate and
fixed property (including plants, machinery and equipment)
specifically described in the Indenture as subject to the lien
thereof (except property theretofore retired or released from such
lien in accordance with the terms of the Indenture) subject only to
Permitted Encumbrances (as defined in the Indenture) and other
liens and charges permitted by the Indenture and such liens,
charges, encumbrances, defects, qualifications, exceptions and
other matters affecting title, possession or use as are set forth
or referred to in the Prospectus or which, individually or in the
aggregate, would not reasonably be expected to have a material
adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(y) The indenture originally dated
as of October 1, 1940 (the “ Base Indenture
”) between the Company and U.S. Bank Trust National
Association, as successor trustee, as supplemented and amended by
indentures supplemental thereto and amendatory thereof (each a
“ Supplemental Indenture ” and the Base
Indenture together with all Supplemental Indentures is referred to
herein as the “ Indenture ”) has been duly
recorded in all offices of county recorders or clerks of all
counties in the State of California in which any real property
subject to the lien of the Indenture is located and appropriate
financing statements in respect of personal property and fixtures
have been filed in the Office of the Secretary of State of the
State of California and no other filing or recordation is necessary
for the perfection and preservation of the lien created thereby
except for recordations required in respect of after-acquired real
property; and
(z) The Indenture constitutes, as
security for the Bonds, a valid and subsisting lien to the extent
that it purports to be such on all the present properties of the
Company
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(including plants, machinery,
equipment, real estate and fixed property), rights and franchises
of the Company and its subsidiaries (other than those properties
excepted or released from the lien of the Indenture by its terms)
subject only to Permissible Encumbrances and other liens and
charges permitted by the Indenture and such liens, charges and
encumbrances, defects, qualifications, exceptions and other matters
as are set forth or referred to in the Prospectus, or which would
not reasonably be expected materially to affect the security for
the Bonds, and upon acquisition thereafter by the Company of
similar properties the Indenture will, subject to liens existing
thereon at the time of acquisition, create such lien
thereon.
2. The Company understands that upon
authorization by the Representatives of the release of the Bonds,
the several Underwriters propose to offer the Bonds for sale upon
the terms and conditions set forth in the Prospectus as amended or
supplemented.
3. On the basis of the
representations and warranties herein contained and subject to the
terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at —
% of the principal amount thereof,
the aggregate principal amount of Bonds set forth in
Schedule I opposite the name of such Underwriter, plus any
additional principal amount of Bonds which such Underwriter may
become obligated to purchase pursuant to the provisions of
Section 9 hereof.
4. Payment of the purchase price
for, and delivery of certificates for, the Bonds shall be made at
the office of Latham & Watkins LLP, 633 West Fifth
Street, Los Angeles, California 90071 or at such other place as
shall be agreed upon by the Representatives and the Company, at
10:00 a.m., (New York City time), on —
—
, —
, or such other time not later than
ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and
delivery being herein called the “ Time of Delivery
”). Payment shall be made to the Company by wire transfer of
Federal (same day) funds to the account specified by the Company to
the Representatives at least forty-eight hours in advance against
delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Bonds to be purchased by them.
Certificates for the Bonds shall be 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. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Bonds which it
has agreed to purchase. —
, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Bonds to be
purchased by any Underwriter whose check has not been received by
the Time of Delivery, but such payment shall not release such
Underwriter from its obligations hereunder. The certificates for
the Bonds will be made available for examination and packaging by
the Representatives not later than 10:00 a.m. (New York City
time), on the last business day prior to the Time of Delivery in
New York, New York.
5. The Company agrees with each of
the Underwriters:
(a) To prepare the Prospectus as
amended or supplemented in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b)
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under the Act not later than the
Commission’s close of business on the second business day
following the date hereof or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment
or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date hereof and prior to the Time
of Delivery which shall be disapproved by the Representatives
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after
the Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Bonds, and
during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been
filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Bonds, of the suspension of the
qualification of the Bonds for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any examination pursuant to
Section 8(e) of the Act concerning the Registration Statement,
or of the Company becoming the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Bonds or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Bonds or suspending any such
qualification, to promptly use commercially reasonable efforts to
obtain the withdrawal of such order;
(b) To prepare a final term sheet
(the “ Final Term Sheet ”) reflecting the final
terms of the Bonds, in the form of Schedule III hereto, and
file such Final Term Sheet as an “issuer free writing
prospectus” pursuant to Rule 433 prior to the close of
business two business days after the date hereof; provided
that the Company shall furnish the Representatives with copies of
any such Final Term Sheet a reasonable amount of time prior to such
proposed filing and will not use or file any such document to which
the Representatives or counsel to the Underwriters shall reasonably
object;
(c) 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 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;
10
(d) Promptly from time to time to
take such action as the Representatives may reasonably request to
qualify the Bonds for offering and sale under
