EXHIBIT 1
KEYSPAN CORPORATION
DEBT SECURITIES
Underwriting Agreement
_____________, 200_
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
KeySpan Corporation, a New York corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain debt securities (the "Shelf Securities") to be issued from time to time
by the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Basic Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Prospectus".
If the Company has filed an abbreviated registration statement pursuant to Rule
462(b) under the Securities Act (the "Rule 462 Registration Statement"), then
any reference herein to the term "Registration Statement" shall be deemed to
include such Rule 462 Registration Statement. Any reference in this Agreement to
the Registration Statement, the Basic Prospectus, any preliminary form of
Prospectus (a "preliminary prospectus") previously filed with the Commission
pursuant to Rule 424 or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to make a
public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representatives,
no later than noon the Business Day (as defined below) prior to the Closing Date
(as defined below), on the date and at the time and place set forth in Schedule
I hereto (or at such other time and place on the same or such other date, not
later than the fifth Business Day (as defined below) thereafter, as you and the
Company may agree in writing). As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City. The time and date of such payment and delivery with respect to
the Securities are referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of the Trustee, not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the Commission
under the Securities Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Trust
Indenture Act"), and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the date of
the Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any 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, and the Prospectus, as
amended or supplemented at the Closing Date, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and
(ii) statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Securities Act or the Exchange
Act, as applicable, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, 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 to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(c) the financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein; and the
pro forma financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus has
been prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable and is based upon good faith estimates
and assumptions believed by the Company to be reasonable;
(d) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (1) there has not been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries,
(2) there has not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus; and (3) except as
set forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in 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, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(f) each of the Company's Significant Subsidiaries (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the Securities Act) has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in 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 jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
other than where the failure to be so qualified or in good standing would not
have a material adverse effect on the Company and its Significant Subsidiaries
taken as a whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued, are
fully-paid and non-assessable, and (except in the case of foreign subsidiaries,
for directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests and
claims;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized, and, when issued and delivered
pursuant to this Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture; the Indenture has been duly
authorized and upon effectiveness of the Registration Statement will have been
duly qualified under the Trust Indenture Act and, when executed and delivered by
the Company and the Trustee, the Indenture will constitute a valid and binding
instrument; and the Securities and the Indenture will conform to the
descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Significant Subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation, as amended, or By-Laws, as
amended, or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which individually and
in the aggregate are not material to the Company and its Significant
Subsidiaries taken as a whole or to the holders of the Securities; the issue and
sale of the Securities and the performance by the Company of all its obligations
under the Securities, the Indenture and this Agreement and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company 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, nor
will any such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any applicable law
or statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities or the consummation
by the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the Securities Act,
the Trust Indenture Act and the Public Utility Holding Company Act of 1935, as
amended (the "Public Utility Holding Company Act") and as may be required under
state securities laws in connection with the purchase and distribution of the
Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its Significant Subsidiaries or any of their respective properties or to
which the Company or any of its Significant Subsidiaries is or may be a party or
to which any property of the Company or any of its Significant Subsidiaries is
or may be the subject which, if determined adversely to the Company or any of
its Significant Subsidiaries, could individually or in the aggregate have, or
reasonably be expected to have, a material adverse effect on the general
affairs, business, prospects, management, financial position, stockholders'
equity or results of operations of the Company and its Significant Subsidiaries
taken as a whole and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; and there are no statutes, regulations, contracts or other
documents that are required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus which are not filed or described as required;
(k) immediately after any sale of Securities by the Company hereunder, the
aggregate amount of Securities which have been issued and sold by the Company
hereunder and of any securities of the Company (other than the Securities) that
shall have been issued and sold pursuant to the Registration Statement will not
exceed the amount of securities registered under the Registration Statement;
(l) The accountants who have certified certain financial statements and any
supporting schedules thereto included in the Registration Statement or the
Prospectus are independent public accountants as required by the Securities Act;
(m) the Company and its Significant Subsidiaries have good and marketable title
in fee simple to all items of real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described or referred to in the
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made or proposed to be made of such property by the
Company and its Significant Subsidiaries; and any real property and buildings
held under lease by the Company and its Significant Subsidiaries are held by
them under valid, existing and enforceable leases with such exceptions as are
not material and do not interfere with the use made or proposed to be made of
such property and buildings by the Company or its Significant Subsidiaries;
(n) no relationship, direct or indirect, exists between or among the Company or
any or its Significant Subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described; (o) the Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(p) the Company and its Significant Subsidiaries have filed all federal, state,
local and foreign tax returns which have been required to be filed and have paid
all taxes shown thereon and all assessments received by them or any of them to
the extent that such taxes have become due and are not being contested in good
faith; and, except as disclosed in the Registration Statement and the
Prospectus, there is no tax deficiency which has been or might reasonable be
expected to be asserted or threatened against the Company or any Significant
Subsidiary;
(q) there are no existing or, to the best knowledge of the Company, threatened
labor disputes with the employees of the Company or any of its Significant
Subsidiaries which are likely to have a material adverse effect on the Company
and its Significant Subsidiaries taken as a whole.
(r) the Company and each of its Significant Subsidiaries possess such permits,
licenses, franchises, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and each of its Significant
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to so comply would not, singly
or in the aggregate, result in a material adverse effect on the Company and its
Significant Subsidiaries, taken as a whole; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not result in a material adverse effect on the Company
and its Significant Subsidiaries, taken as a whole; and none of the Company or
any of its Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse effect on the Company and
its Significant Subsidiaries, taken as a whole;
(s) except as otherwise stated in the Registration Statement and the Prospectus,
and except as would not, singly or in the aggregate, result in a material
adverse effect on the Company and its Significant Subsidiaries, taken as a
whole, (A) neither of the Company nor any of its Significant Subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its Significant Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C) there
are no pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Significant Subsidiaries and (D) there are no
events or circumstances that may reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Company
or any of its Significant Subsidiaries relating to Hazardous Materials or any
Environmental Laws;
(t) no filing with, or approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Agreement, the Indenture and the
Securities, as applicable, or for the performance by the Company of the
transactions contemplated in this Agreement, the Indenture or the Prospectus,
except (i) such as have been obtained under the Securities Acts, (ii) under the
Public Utility Holding Company Act and (iii) as may be required to be obtained
under state security laws; and
(u) the Significant Subsidiaries of the Company are Eastern Enterprises, The
Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York, KeySpan Gas
East Corporation d/b/a KeySpan Energy Delivery Long Island, KeySpan Generation
LLC and KeySpan Ravenswood, Inc.
5. The Company covenants and agrees with each of the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you pursuant to Rule 424
under the Securities Act not later than the Commission's close of
business on the second Business Day following the date of
determination of the offering price of the Securities or, if
applicable, such earlier time as may be required by Rule 424(b);
(b) to furnish to each Representative and counsel for the Underwriters,
at the expense of the Company, a signed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each
case including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (e) below, to
furnish each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to furnish to you
a copy of any proposed amendment or supplement to the Registration
Statement or the Prospectus, for your review, and not to file any
such proposed amendment or supplement to which you reasonably object;
(d) 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 Securities, and during such same period,
to advise you promptly, and to confirm such advice in writing, (i)
when any amendment to the Registration Statement shall have become
effective, (ii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any
proceeding for that purpose, and (iv) of the receipt by the Company of
any notification with respect to any suspension of the qualification
of the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to
use its best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters a
prospectus relating to the Securities is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to
which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, such amendments or
supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with
law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Securities;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to you as
soon as practicable an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement;
(h) so long as the Securities are outstanding, to furnish to you copies of
all reports or other communications (financial or other) furnished to
holders of Securities;
(i) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of
or guaranteed by the Company which are substantially similar to the
Securities;
(j) to use the net proceeds received by the Company from the sale of the
Securities pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including fees of counsel for the Underwriters and
their disbursements), (iv) related to any filing with National
Association of Securities Dealers, Inc., (v) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (vi) payable to rating agencies in
connection with the rating of the Securities, (vii) any expenses
incurred by the Company in connection with a "road show" presentation
to potential investors and (viii) the cost and charges of any transfer
agent.
6. The several obligations of the Underwriters hereunder shall be subject to
the following conditions:
(a) the representations and warranties of the Company contained herein
are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing
by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of (i) any downgrading, (ii) any
intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any 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 material
adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus; and 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
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
Prospectus;
(e) the Representatives shall have received on and as of the Closing Date
a certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to you
to the effect set forth in subsections (a) through (c) (with respect
to the respective representations, warranties, agreements and
conditions of the Company) of this Section and to the further effect
that there has not occurred any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole from that set forth
or contemplated in the Registration Statement;
(f) the Representatives shall have received the favorable opinion of the
General Counsel or Deputy General Counsel of the Company, or such
other legal counsel employed by the Company agreed to in writing by
the Representatives, to the effect set forth in Exhibit A hereto and
to such further effect as the Representatives may reasonably request
dated as of the date hereof and in form and substance satisfactory to
them;
(g) on the date hereof and on the Closing Date, Arthur Andersen LLP and,
if applicable, Ernst & Young LLP shall have furnished to you letters,
dated such date, in form and substance satisfactory to you,
containing statements and information of the type customarily
included in accountants "comfort letters" to underwriters with
respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(h) you shall have received on and as of the Closing Date an opinion of
Simpson Thacher & Bartlett, counsel to the Underwriters, with respect
to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(i) an order of the Commission under the Public Utility Holding Company
Act authorizing the issuance and sale of the Securities shall be in
full force and effect, and such order shall not contain any provision
unacceptable to the Representatives in their respective reasonable
judgments; and
(j) on or prior to the Closing Date, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Securities and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Underwriter or its affiliates
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters,
each affiliate of any Underwriter which assists such Underwriter in the
distribution of the Securities and such control persons of Underwriters shall be
designated in writing by the first of the named Representatives on Schedule I
hereto and any such separate firm for the Company, its directors, its officers
who sign the Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses of counsel
as contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 60
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, which consent shall not be unreasonably withheld, effect any settlement
of any pending or threatened proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law of in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange or the
Chicago Board Options Exchange, (ii) trading of any securities of or guaranteed
by the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriters shall be obligated severally in the proportions that the
principal amount of Securities set forth opposite their respective names in
Schedule I hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Representatives may specify, to purchase the Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the principal amount
of Securities that any Underwriter has agreed to purchase pursuant to Section 1
be increased pursuant to this Section 9 by an amount in excess of one-tenth of
such principal amount of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased, and arrangements
satisfactory to you and the Company for the purchase of such Securities are not
made within 24 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and expenses of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or by
the first of the named Representatives set forth in Schedule I hereto alone on
behalf of the Underwriters, and any such action taken by you jointly or by the
first of the named Representatives set forth in Schedule I hereto alone shall be
binding upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given at the address set forth in Schedule II hereto.
Notices to the Company shall be given to it at One MetroTech Center, Brooklyn,
New York 11201, facsimile: (718) 403-2161; Attention: Steven L. Zelkowitz,
Senior Vice President and General Counsel.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
<PAGE>
14.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
KEYSPAN CORPORATION
By: ___________________________________
Name:
Title:
Accepted: __________, 200__
[LEAD MANAGER]
[CO-MANAGER[S]]
Acting severally on behalf of [itself/themselves] and the several Underwriters
listed in Schedule II hereto.
By: [LEAD MANAGER]
By:___________________________
Name:
Title:
<PAGE>
SCHEDULE I
Representatives(1): ______________________________________
Underwriting Agreement dated: ______________________________________
Registration Statement No.: ______________________________________
Title of Securities: ______________________________________
Aggregate principal amount: $_____________________________________
Price to Public: __% of the principal amount of the
Securities, plus accrued interest, if
any, from _______, 20__ to the Closing Date.
Indenture: Indenture dated as of _________ between
the Company and ____________as Trustee.
Maturity: ______________________________________
Interest Rate: ______________________________________
Interest Payment Dates: ______________________________________
Optional Redemption Provisions: ______________________________________
Sinking Fund Provisions: ______________________________________
Other Provisions: ______________________________________
Closing Date and Time of Delivery: ______________________________________
Closing Location: ______________________________________
Address for Notices to Underwriters: ______________________________________
---------------
(1) Bookrunning Representative should be named first for the purposes of
Sections 7 and 12.
<PAGE>
SCHEDULE II
Principal Amount of
Underwriter Securities
----------- To Be Purchased
. ........................................................ $----------
------------------------------------------ ----------
Total..................................................... $__________
<PAGE>
EXHIBIT A
FORM OF OPINION OF GENERAL COUNSEL OR
DEPUTY GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(f)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York.
(2) The Company has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into the Agreement and consummate the transactions contemplated in the
Prospectus.
(3) The Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a material adverse effect on the Company or its
subsidiaries, taken as a whole.
(4) All of the issued and outstanding shares of capital stock of the Company
have been duly authorized and are validly issued, fully paid and non-assessable;
and none of the outstanding shares of capital stock of the Company were issued
in violation of preemptive or other similar rights of any securityholder of the
Company.
(5) each Significant Subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the Securities Act) has been duly incorporated
and is validly existing as a corporation or a limited liability company, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation or limited liability
company, as the case may be, to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify or be in good standing would not result in a material
adverse effect on the Company or its subsidiaries, taken as a whole; except as
stated in the Prospectus, all of the issued and outstanding shares of capital
stock of each Significant Subsidiary has been duly authorized and are validly
issued, fully paid and non-assessable and, to the best of my knowledge, are
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock of any Significant Subsidiary
were issued in violation of preemptive or other similar rights of any
securityholder of such Significant Subsidiary.
(6) The Agreement has been duly authorized, executed and delivered by the
Company.
(7) The Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery thereof by the
Trustee) constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and except further as enforcement thereof may be
limited by requirements that a claim with respect to any debt securities issued
under the Indenture that are payable in a foreign currency or currency unit (or
a foreign currency or currency unit judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
(8) The Securities have been duly authorized and issued by the Company and,
assuming due authorization, execution and delivery thereof by the Trustee, the
Securities will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and except further as enforcement thereof may be
limited by requirements that a claim with respect to any Securities payable in a
foreign currency or currency unit (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States; and the Securities are entitled to the benefits of
the Indenture.
(9) The Indenture and the Securities conform in all material respects to
the statements relating thereto contained in the Prospectus.
(10) The information in the Annual Report on Form 10-K under "Legal Proceedings"
and "Business--Regulation and Rate Matters", the information in the Prospectus
covering similar matters and the information in the Registration Statement under
Item 15, to the extent that such information constitutes matters of law,
summaries of legal matters, the Company's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by me and is correct in all
material respects.
(11) to the best of my knowledge, neither of the Company nor any of its
Significant Subsidiaries is in violation of its charter or by-laws or operating
agreement, as the case may be, and no default by the Company or any of its
Significant Subsidiaries exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any agreement
and instrument that is described or referred to in the Registration Statement or
the Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(12) The execution, delivery and performance of the Agreement, the Indenture and
the Securities and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the transactions
contemplated in the Prospectus, the consummation of the transactions
contemplated in the Prospectus (including the issuance and sale of the
Securities and the use of the proceeds therefrom as described in the Prospectus)
and the compliance by the Company with its obligations thereunder have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its Significant Subsidiaries pursuant to,
any agreement or instrument known to me, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any of
its Significant Subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their assets,
properties or operations.
(13) To the best of my knowledge, except as otherwise disclosed in the
Registration Statement or the Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its Significant Subsidiaries is a party or to which the assets, properties or
operations of the Company or any of its Significant Subsidiaries is subject,
before or brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a material adverse
effect on the Company or its Significant Subsidiaries, taken as a whole, or
which might reasonably be expected to materially and adversely affect the
assets, properties or operations of the Company or any of its Significant
Subsidiaries, the performance by the Company or of its obligations under the
Agreement, the Indenture, or the Securities or the consummation of the
transactions contemplated in the Prospectus.
(14) All descriptions in the Prospectus of contracts and other documents to
which the Company or any of its subsidiaries are a party are accurate in all
material respects; and, to the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
(15) To the best of my knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(16) The Registration Statement has been declared effective under the Securities
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and to the
best of my knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(17) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1 (the "Form
T-1"), as to which no opinion is expressed), complied as to form in all material
respects with the requirements of the Securities Act.
(18) The documents incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules included therein or omitted
therefrom, as to which no opinion is expressed), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the Exchange Act.
(19) The Indenture has been duly qualified under the Trust Indenture Act.
(20) The Company has obtained the approval of all Federal regulatory authorities
required in connection with the issuance and sale to you by the Company of the
Securities; and the Securities shall be issued and sold to you by the Company in
conformity with the order of the Commission under the Public Utility Holding
Company Act issued with respect thereto.
(21) No filing with, or approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of the Agreement, the Indenture, and the
Securities, as applicable, or for the performance by the Company of the
transactions contemplated in the Agreement, the Indenture or the Prospectus,
except such as have been previously made, obtained or rendered, as applicable.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any post-effective amendment thereto (except for
financial statements, supporting schedules and other financial and statistical
data included therein or omitted therefrom and for the Form T-1, as to which I
make no statement), at the time the Registration Statement or any post-effective
amendment thereto became effective or at the date of any agreement of the
applicable Agents to purchase Securities from the Company as principal,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements, supporting schedules and other financial data
included therein or omitted therefrom, as to which I make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the State of New York, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company. The opinion
of such counsel for the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such counsel and, in
such counsel's opinion, the Underwriters and they are justified in relying
thereon. With respect to the matters to be covered in the paragraph immediately
above, counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but is without independent
check or verification except as specified.
The opinion of counsel described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
