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EXHIBIT 1.1
$15,000,000
THE PROVIDENCE GAS COMPANY
_% Senior Secured Insured Quarterly Notes
due __________, 2029
FORM OF UNDERWRITING AGREEMENT
_______________, 1999
XXXXXX X. XXXXX & CO., L.P.
00000 Xxxxxxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000-3729
Ladies and Gentlemen:
The undersigned, The Providence Gas Company, a Rhode Island
corporation (the "Company"), hereby confirms its agreement with Xxxxxx X. Xxxxx
& Co., L.P., a Missouri limited partnership (the "Underwriter") as follows:
1. OFFERING. The Company proposes to issue and sell to
the Underwriter $15,000,000 aggregate principal amount of its First Mortgage
Bonds, Series T, _%, also known as _% Senior Secured Insured Quarterly Notes,
due _____, 2029 (the "Notes"). The Notes will be issued by the Company under its
First Mortgage Indenture (the "Original Indenture") dated as of January 1, 1922,
under which State Street Bank and Trust Company is now the trustee (the
"Trustee"), as amended and supplemented, and as to be further supplemented and
amended by a Twentieth Supplemental Indenture dated as of ____________, 1999
(the "Supplemental Indenture") relating to the Notes. The term "Indenture", as
hereinafter used, means such Original Indenture as so amended and supplemented.
The Company understands that the Underwriter proposes to make a public offering
of the Notes as soon as it deems advisable after this Agreement has been
executed and delivered.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase the
Notes, at a price of $_____ per each $_____ principal amount of the Notes.
Payment for the Notes to be sold hereunder is to be made in
immediately available funds by wire transfer or certified or bank cashier's
checks drawn to the order of the Company against delivery of certificates
therefor to the Underwriter through the facilities of the Depository Trust
Company for the account of the Underwriter at 10:00 a.m., St. Louis time, on
___________, 1999, or, if such day is not a business day, on the next business
day, or at such
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other time and date not later than five (5) business days thereafter as may be
agreed upon in writing between the Underwriter and the Company, such time and
date being herein referred to as the "Closing Date." The Company shall deliver
certificates for the Notes to the Depository Trust Company in definitive, fully
registered form and in such denominations and in such registrations as the
Underwriter shall request in writing not later than 10:00 a.m. the second full
business day prior to the Closing Date, and shall make available said
certificates for inspection and packaging by the Depository Trust Company not
later than 10:00 a.m. at least one full business day prior to the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), has
prepared a registration statement on Form S-3 (Registration No.
333-______) for the registration of the Notes and one or more
amendments thereto in conformity with the requirements of the Act and
all applicable instructions and the published rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") under the Act, has filed such registration statement
and amendments with the Commission and either (A) has prepared and
proposes to file, prior to the effective date of such registration
statement, an amendment to such registration statement, including a
final prospectus, setting forth the initial public offering price of
the Notes and related information or (B) if the Company has elected to
rely upon Rule 430A of the Rules and Regulations, will prepare and file
a prospectus in accordance with the provisions of Rule 430A and Rule
424(b) of the Rules and Regulations promptly after execution of this
Agreement. Copies of such registration statement and amendments
(including all forms of preliminary prospectuses) have been delivered
to the Underwriter, and the Company will not, before the registration
statement becomes effective, file any other amendment or supplement
thereto to which the Underwriter objects after being furnished with a
copy thereof. (The information, if any, included in such prospectus
that was omitted from the prospectus included in such registration
statement at the time it becomes effective but that is deemed, pursuant
to Rule 430A(b), to be part of the registration statement at the time
it becomes effective, is referred to herein as the "Rule 430A
Information." Each prospectus used before the time such registration
statement becomes effective, and any prospectus that omits the Rule
430A Information, used after such effectiveness and prior to the
execution and delivery of this Agreement, is referred to herein as a
"preliminary prospectus." Such registration statement, including all
prospectuses included as a part thereof, all financial schedules and
exhibits thereto, all documents incorporated by reference therein, as
amended at the time it becomes effective, and, if applicable, the Rule
430A Information, is herein called the "Registration Statement," and
the prospectus, including the documents incorporated by reference
therein, included in the Registration Statement at the time it becomes
effective is herein called the "Prospectus," except that, if the final
prospectus furnished to the Underwriter after the execution of this
Agreement for use in connection with the offering of the Notes differs
from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be
filed pursuant to Rule 424(b)), the term "Prospectus" shall refer to
the final prospectus first furnished to the Underwriter for such use.)
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any term sheet
or any amendment or supplement to any of the foregoing shall be deemed
to include the electronically transmitted copy thereof filed with the
Commission pursuant
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to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus, at the time of the filing thereof with the Commission, did
not include 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 light of the circumstances under which
they were made, not misleading; provided, however, that none of the
representations and warranties in this subparagraph (b) shall apply to
statements in, or omissions from, any preliminary prospectus made in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for use in
such preliminary prospectus.
(c) When the Registration Statement becomes effective
(such date being referred to herein as the "Effective Date"), and at
all times subsequent thereto, up to and including the Closing Date, the
Registration Statement and the Prospectus, and all amendments and
supplements thereto, will comply with the provisions of the Act and the
Rules and Regulations. All documents filed by the Company with the
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") that are, or are deemed to be, incorporated by
reference into the Prospectus complied and/or will comply (as the case
may be) at the time of such filing with the applicable requirements of
the Exchange Act and the rules and regulations thereunder. When the
Registration Statement becomes effective, and when any post-effective
amendment thereto becomes effective, the Registration Statement (as
amended, if the Company has filed with the Commission any
post-effective amendment thereto) will not contain any 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. When the Registration Statement becomes effective, and at
all times subsequent thereto, up to and including the Closing Date, the
Prospectus (as amended or supplemented, if the Company has filed with
the Commission any amendment thereof or supplement thereto) will 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 light of the circumstances under which
they were made, not misleading. None of the representations and
warranties in this subparagraph (c) will apply to statements in, or
omissions from, the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
the Underwriter specifically for use in the Registration Statement or
the Prospectus or any such amendment or supplement. The Prospectus
delivered to the Underwriter for use in connection with the offering of
the Notes will, at the time of such delivery, be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(d) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Rhode
Island, and is duly qualified as a foreign corporation in each
jurisdiction in which the conduct of its business as described in the
Prospectus or the ownership or leasing of property requires such
qualification, except to the extent that the failure to be as qualified
or be in good standing would not have a material adverse effect on the
Company. The Company has one subsidiary, ProvEnergy Investments, Ltd.
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(e) The authorized and outstanding capitalization of the
Company is set forth in the Registration Statement under
"Capitalization," and all the issued shares of common stock of the
Company, par value $1 per share (the "Common Stock") have been duly
authorized and validly issued and are fully paid and non-assessable.
All of the issued and outstanding shares of capital stock of the
Company are owned by Providence Energy Corporation, a Rhode Island
corporation.
(f) The statements concerning the Notes in the Prospectus
under the caption "Description of the Notes" conform with and
accurately describe the rights set forth in the instruments defining
the same.
(g) The Company has full right, power and authority to
enter into this Agreement and to perform all of its obligations
hereunder or contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws effecting creditors' rights generally or by general principal of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity).
(h) The Notes have been duly authorized by the Company
for issuance and sale pursuant to this Agreement and, at the Closing
Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor specified in this
Agreement, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms. The Notes will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to the description thereof contained in the Prospectus.
(i) The Indenture has been duly authorized and on the
Closing Date will have been duly , executed and delivered by the
Company and qualified under the Trust Indenture Act of 1939, as
amended, and constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms;
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws effecting creditors' rights generally or by general principal of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity). The Indenture will conform in all materials
respects to the description thereof contained in the Prospectus.
(j) The Company has good and marketable title to the
properties subject to the lien of the Indenture free of encumbrances
except the lien of the Indenture, permitted liens as defined in the
Indenture, as to property acquired by the Company subsequent to the
execution of the Original Indenture, to any liens existing thereon or
purchase money liens placed thereon at the time of such acquisition as
permitted by the Indenture, and certain other reservations, rights of
grantors under revocable permits, easements, licenses, zoning laws and
ordinances and restrictions and minor defects or irregularities of
title which do not, individually or in the aggregate, materially impair
the use of the property affected thereby in the operation of the
business of the Company; the Company and its subsidiary have good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except the liens
of the Indenture and such
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liens, encumbrances and defects as do not materially affect the value
of such property and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiary; and any
real property and buildings held under lease by the Company and its
subsidiary are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiary; the pipeline, distribution
main and underground gas storage easements enjoyed by the Company and
its subsidiary are valid, subsisting and enforceable easements with
such exceptions as are not material and do not interfere with the
conduct of the business of the Company and its subsidiary.
(k) The Indenture constitutes a legally valid and direct
enforceable first mortgage lien on all of the Company's properties and
franchises specifically or generally described or referred to in the
Indenture as subject to the lien of the Indenture, whether now owned or
hereafter acquired, free from all prior liens, charges or encumbrances,
except as hereinbefore set forth in paragraph (j) above.
(l) The Company has all requisite corporate power and
authority necessary to own or hold its properties and conduct its
business as described in the Prospectus and owns or holds all material
licenses, certificates, permits and other required authorizations from
governmental authorities necessary to own or hold its properties and
conduct its business. The Company has not received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, permit or authorization or infringement of or
conflict with asserted rights of others with respect to any license,
patent, patent rights, copyright, trademark or trade name, which
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the
business or financial condition of the Company.
(m) Except as set forth in the Prospectus, there are no
actions, suits, proceedings, hearings, claims or investigations pending
or, to the knowledge of the Company, threatened before or by any court,
governmental authority, or instrumentality against the Company or
involving any of its properties or business that if determined
adversely, is likely to have a material adverse effect on the business
or financial condition of the Company, or which may materially
adversely affect the ability of the Company to perform its obligations
under this Agreement or the consummation of the transactions
contemplated by this Agreement or the validity or enforceability
hereof.
(n) Except as reflected in or contemplated by the
Prospectus, since the respective dates for which information is given
in the Prospectus and up to and including the Closing Date: (i) the
Company has not sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
insured, or from any labor dispute or court or governmental action,
order or decree; (ii) there has been no change in the capital stock or
long term debt of the Company and (iii) there has been no material
adverse change, or any development specifically related to the business
of the Company, involving a prospective material adverse change in the
condition (financial or otherwise), net worth or results of operations
of the Company, whether or not arising in its ordinary course of
business.
(o) The Company is not in default under its Certificate
of Incorporation, Bylaws, any indenture or any material agreement,
lease, contract or other material
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instrument or obligation to which it is a party or by which it or any
of its properties is bound. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company pursuant
to the terms of, any indenture (including, without limitation, the
Indenture), mortgage, deed of trust or other material agreement or
instrument to which the Company is a party or is bound, the corporate
charter or Bylaws of the Company or any order, rule or regulation
applicable to the Company of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(p) The financial statements and schedules of the Company
included in the Registration Statement and the Prospectus fairly
present, and the financial statements and schedules of the Company
included in any amendment or supplement to the Registration Statement
and the Prospectus will fairly present, the financial condition of the
Company and the results of its operations and changes in its financial
position as of the dates and for the periods therein specified. Said
financial statements have been and will be prepared in accordance with
generally accepted accounting principles, consistently maintained and
applied throughout the periods involved.
(q) The books, records and accounts of the Company
accurately and fairly reflect, in reasonable detail, the transactions
and dispositions of the assets of the Company, and the system of
internal accounting controls maintained by the Company is sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to (A) permit preparation of
financial statements and (B) maintain accountability for assets, (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 difference.
(r) The accountants who have certified the financial
statements and supporting schedules included in the Registration
Statement or incorporated by reference therein are independent public
accountants, as required by the Act and the Rules and Regulations.
(s) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body (including, without
limitation, the Rhode Island Public Utilities Commission necessary in
connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated
(except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") with respect to
underwriting compensation and except for any filings under applicable
state securities or other Blue Sky laws required to be made subsequent
to the Closing Date) has been obtained or made and is in full force and
effect or has been duly waived.
(t) Each lease, contract, agreement or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
is so described or filed as required. All leases, contracts and
agreements referred to in or filed as exhibits to the Registration
Statement to which the
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Company is a party have been duly and validly executed by the Company,
and are, together with such other leases, contracts and agreements by
which the Company are bound, in full force and effect except as set
forth in the Prospectus.
(u) The Company is not a "holding company" as such term
is defined in the Public Utility Holding Company Act of 1935 (the "1935
Act"). The Company is a "subsidiary company" of a "holding company" and
an "affiliate" of a "holding company", as such terms are defined in the
1935 Act, and such "holding company" and the Company are presently
exempt from the provisions of the 1935 Act (except Section 9(a)(2)
thereof).
(v) Neither the Company nor its subsidiary is an
"investment company" or under the "control" of an "investment company"
as such terms are defined under the Investment Company Act of 1940, as
amended (the "1940 Act").
(w) None of the Company or any of its directors, officers
or controlling persons, has taken, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes.
(x) No "forward looking statement" (as defined in Rule
175 under the 1933 Act) contained in the Registration Statement, any
preliminary prospectus or the Prospectus was made or reaffirmed without
a reasonable basis or was disclosed other than in good faith.
(y) There are no claims for services in the nature of
finder's or origination fees with respect to the sale of the Notes
hereunder.
(z) The Company has authorized all necessary action to be
taken by it for the procurement of an irrevocable financial guarantee
insurance policy (the "Insurance Policy") issued by MBIA Insurance
Corporation (the "Insurer"), insuring the payment of principal and
interest on the Notes, when due.
(aa) The aggregate principal amount of bonds outstanding
under the Original Indenture, as amended and supplemented, does not
exceed $________________ and the principal payments on such bonds are
as follows:
Fiscal Year Amount
----------- ------
No holder of any indebtedness of the Company has, and no event
has occurred which will permit such holder or future holder to have, a
prior lien on the property encumbered by the Indenture.
Upon issuance, the Notes will be entitled to the benefits of
the security afforded under the Original Indenture, as amended and
supplemented, equally and ratably with all
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securities presently outstanding thereunder. No holder of any
indebtedness of the Company has, and no event has occurred which will
permit such holder to have, a PARI PASSU lien on the property
encumbered by the Indenture, other than holders of bonds heretofore
issued under the Original Indenture, as amended and supplemented.
4. AGREEMENTS OF THE COMPANY. The Company agrees that:
(a) Prior to the Effective Date and at any time when a
prospectus relating to the Notes is required to be delivered under the
Act or the Rules and Regulations, the Company will not file or make any
amendment or post-effective amendment to the Registration Statement or
any amendment or supplement to the Prospectus to which the Underwriter
has objected in writing within a reasonable time after being furnished
copies thereof.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective at the earliest possible
time and will advise the Underwriter immediately and confirm that
advice in writing (i) of the effectiveness of the Registration
Statement, (ii) if any post-effective amendment thereto, any supplement
to the Prospectus or any amended Prospectus shall have been filed,
(iii) of any request of the Commission to amend or supplement the
Registration Statement or Prospectus or to provide additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Notes for sale in any state
or other jurisdiction or of the initiation or threat of any proceeding
for any such purpose. The Company will use its best efforts to prevent
the issuance of any stop order or suspension order and to obtain
promptly the withdrawal of any such stop order or suspension order.
(c) The Company will promptly deliver to the Underwriter
and to Xxxxx Xxxx LLP, without charge, (i) one signed copy of the
Registration Statement, as originally filed, each amendment thereto,
and each post-effective amendment thereto filed at any time when a
prospectus relating to the Notes is required to be delivered under the
Act, (ii) one signed copy of each consent and certificate included or
incorporated by reference in, or filed as an exhibit to the
Registration Statement as amended or supplemented, and (iii) conformed
copies of the Registration Statement, as originally filed, each
amendment thereto, and each post-effective amendment thereto filed at
any time when a prospectus relating to the Notes is required to be
delivered under the Act or the Rules and Regulations, without exhibits,
as the Underwriter may reasonably require. The Company will promptly
deliver, without charge, to the Underwriter and such others whose names
and addresses are designated by the Underwriter: (A) from time to time
until the effective date of the Registration Statement, as many printed
copies as the Underwriter may reasonably request of any preliminary
prospectus filed with the Commission prior to the effective date of the
Registration Statement and (B) as soon as possible after the
Registration Statement becomes effective, and from time to time
thereafter, as many printed copies as the Underwriter may reasonably
request of the Prospectus and of any amended or supplemented
Prospectus.
(d) During the period of time in which the Prospectus is
required to be delivered under the Act, the Company will comply to the
best of its ability with the Act and the Rules and Regulations so as to
permit the continuance of sales of and dealings in the Notes under the
Act and the Exchange Act and will keep current in the filing of all
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material reports and forms required to be filed with any regulatory
authority having jurisdiction over the Company.
(e) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act or the Rules and
Regulations, any event occurs which causes the Prospectus as then
amended or supplemented to include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if, at any time, it is necessary to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Company will promptly notify the Underwriter and promptly prepare and
file with the Commission an amendment or supplement to the Registration
Statement, an appropriate filing pursuant to Section 13 or 14 of the
Exchange Act correcting such statement or omission or an amendment
effecting such compliance and deliver in connection therewith such
Prospectus or Prospectuses to the Underwriter in such quantity as may
be necessary to permit compliance with the requirements of the Act and
the Rules and Regulations.
(f) The Company will use its best efforts to qualify the
Notes for sale under the securities laws of such jurisdictions as the
Underwriter may reasonably have designated in writing and will make
such applications, file such documents and consents to service of
process, and furnish such information as may be reasonably required for
that purpose, provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified
or required to file such a consent or where such action would subject
the Company to taxation where it is not now subject. The Company will,
from time to time, prepare and file such statements, consents, reports,
and other documents as are or may be required to continue such
qualifications in effect for so long a period as the Underwriter may
reasonably request for distribution of the Notes.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than 16 months after the Effective Date, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act in the manner
contemplated by Rule 158 under the Act, which need not be certified by
independent public accountants unless required by the Act or the Rules
and Regulations) covering a period of at least 12 months commencing
after the Effective Date and will advise the Underwriter in writing
when such statement has been so made available.
(h) The Company will apply the net proceeds from the
offering of the Notes in accordance with the uses set forth in the
Prospectus.
(i) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriter copies of (A) annual reports
and copies of all other documents, reports and information furnished by
the Company to its stockholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act, (B) every press release
released by the Company, and (C) such additional documents and
information as the Underwriter may from time to time reasonably
request. The Company will deliver to the Underwriter similar reports
with respect to all significant subsidiaries, as that term is defined
in the Rules and Regulations, which are not consolidated in the
Company's financial statements.
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(j) The Company will use its best efforts to do and
perform all things required or necessary to be done and performed under
this Agreement by the Company prior to the applicable Closing Date and
to satisfy all conditions precedent to the delivery of the Notes.
(k) The Company will comply with the Act, the Exchange
Act, the Rules and Regulation and the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Rules and
Regulations"), so as to permit the continuance of sales and dealings
under the Act, the Exchange Act, the Rules and Regulations and the
Exchange Act Rules and Regulations, and the Company will keep current
in the filings of all material reports and forms required to be filed
with any regulatory body having jurisdiction over the securities of the
Company, including, without limitation, the Commission.
(l) During a period of 120 days from the date of the
Prospectus, the Company will not, without the prior written consent of
the Underwriter, directly or indirectly, issue, sell, contract to sell,
grant any option for the sale of, or otherwise transfer or dispose of
any debt securities of the Company which mature more than one year
after the Closing Date and which are substantially similar to the
Notes.
(m) None of the Company or any of its respective
directors, officers or controlling persons, will take, directly or
indirectly, any action resulting in a violation of Regulation M under
the Exchange Act, or designed to cause or result in, or that reasonably
might be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Notes.
(n) The Company has or will have, on or before the
Closing Date, furnished to the Trustee the resolutions, certificates
and other instruments and cash, if any, required to be delivered prior
to or upon the issuance of the Notes to be delivered on the Closing
Date pursuant to the provisions of the Indenture. The Company will
request the Trustee to authenticate the Notes pursuant to Articles
First and Second of the Indenture. The Company will, on or before the
Closing Date, be able to comply with all other conditions with respect
to the authentication of the Notes imposed by the Indenture.
5. EXPENSES. The Company and the Underwriter agree as
follows:
(a) Whether or not the Registration Statement becomes
effective, the Company will pay all of the costs, expenses and fees
incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the
following: accounting fees of the Company; the fees and disbursements
of counsel for the Company; the cost of printing and delivering to, or
as requested by, the Underwriter copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement, the Selected
Dealer Agreement, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and
reasonable expenses incident to securing any required review by the
NASD of the terms of the sale of the Notes; the expenses of
preparation, issuance and delivery of the certificates for the Notes to
the Underwriter; the fees and expenses of the transfer agent for the
Notes (including legal fees and disbursements, if any, of counsel to
the transfer agent); any taxes, including transfer taxes, on the sale
of the Notes to the Underwriter; the expenses, including the reasonable
fees and disbursements of Underwriter's counsel, incurred in connection
with the qualification of the Notes under State securities or Blue Sky
laws; and all other costs, expenses and fees incident to the
performance of the Company's
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obligations hereunder which are not otherwise specifically provided for
in this section.
(b) The Underwriter will pay (i) the fees and
disbursements of the Underwriter's counsel, except as set forth in (a)
above and SECTION 10(C) hereof, and (ii) their own out-of-pocket
expenditures.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Notes shall be
subject in its discretion to the accuracy of and compliance with the
representations and the warranties of the Company herein contained as of the
date hereof, and the Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become
effective no later than 1:00 p.m., St. Louis time, on the date of this
Agreement, or such later time and date as shall be consented to in
writing by the Underwriter, neither a stop order suspending the
effectiveness of such Registration Statement shall have been issued
under the Act nor proceedings therefor shall have been initiated or
threatened by the Commission, and all requests for additional
information on the part of the Commission shall have been complied with
to the reasonable satisfaction of the Underwriter.
(b) The Underwriter shall not have discovered and
disclosed to the Company on or prior to the Closing Date, if any, that
the Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of fact which, in the
opinion of the Underwriter or counsel for the Underwriter, is material
or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) On the Closing Date, the Underwriter and the Trustee
shall have received a favorable opinion, dated the Closing Date, of
Xxxxxxxx, Xxxxx & Xxxxxx, in the form to be mutually agreed upon. In
giving such opinion, said counsel may rely as to matters of fact upon
statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than the
laws of the United States and the State of Rhode Island, upon an
opinion or opinions of local counsel, provided that any such opinion or
opinions are delivered to the Underwriter and that said counsel shall
state that they have no reason to believe that such opinions are not
correct.
(d) On the Closing Date, the Underwriter shall have
received from Xxxxx Xxxx LLP an opinion or opinions with respect to the
sufficiency of the Company proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus and such
related matters as the Underwriter may reasonably require, and there
shall have been furnished to such counsel such documents as they may
request to enable them to pass upon such matters. In giving such
opinion or opinions, Xxxxx Xxxx LLP may rely as to matters of fact upon
statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than the
laws of the United States and the State of Missouri, upon an opinion or
opinions of local counsel, who may be counsel for the Company, provided
that any such opinion or opinions are delivered to the Underwriter and
that said counsel shall state that they have no reason to believe that
such opinions are not correct.
(e) On the Closing Date, the Underwriter shall have
received a certificate,
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dated the Closing Date signed by the chief executive officer or
president and principal financial or accounting officer of the Company,
in form and substance satisfactory to the Underwriter, to the effect
that: (i) the representations and warranties of the Company in this
Agreement are true and correct as if made on the Closing Date and the
Company has performed and complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied at or prior to the Closing Date; (ii) since the respective
dates for which information is given in the Prospectus, there has not
been any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, other than as described in the Prospectus;
(iii) no stop order affecting the Registration Statement is in effect
or, to the best of such officers' knowledge, threatened; and (iv)
covering such other matters as the Underwriter may otherwise request.
(f) On the date of this Agreement, the Underwriter shall
have received a letter from Xxxxxx Xxxxxxxx LLP, dated such date and
addressed to the Underwriter in form and substance reasonably
satisfactory to the Underwriter, with respect to the financial
statements and certain financial and statistical information contained
in the Registration Statement and the Prospectus.
(g) On the Closing Date, the Underwriter shall have
received a letter from Xxxxxx Xxxxxxxx LLP, dated the Closing Date, and
addressed to the Underwriter in form and substance satisfactory to the
Underwriter, confirming as of the Closing Date, their letter dated the
date hereof and delivered to the Underwriter pursuant to Section 6(f)
hereof.
(h) Before the Closing Date, Xxxxx Xxxx LLP, counsel for
the Underwriter, shall have been furnished with such opinions and
copies of such documents as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings or in order to evidence the
accuracy or completeness of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained. All
proceedings taken by the Company in connection with the issuance and
sale of the Notes as herein contemplated and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be
satisfactory in form and substance in all material respects to the
Underwriter and said counsel.
(i) Except as contemplated in the Prospectus, subsequent
to the respective dates for which information is given in the
Registration Statement and the Prospectus, there shall not have been
any material change in the capital securities, short-term debt or
long-term debt of the Company or any material adverse change, or any
development specifically related to the business of the Company
involving a prospective material adverse change, in the condition
(financial or otherwise), net worth or results of operations of the
Company considered as a whole, which, in the judgment of the
Underwriter, makes it impracticable to offer or deliver the Notes on
the terms and in the manner contemplated in the Prospectus.
(j) On the Closing Date, the Underwriter shall have
received from Xxxxxxx & Xxxxxxx LLP, counsel for the Trustee, an
opinion substantially in the form attached hereto as Schedule I.
(k) On the Closing Date, the Underwriter shall have
received from
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_________________, counsel to the Insurer, an opinion substantially in
the form attached hereto as Schedule II.
(l) On or prior to the Closing Date, the Supplemental
Indenture shall have been duly authorized, executed and delivered by
the Company and the Trustee, and shall be in full force and effect, and
the Indenture (including the Supplemental Indenture) and all other
documents, including, without limitation, Uniform Commercial Code
financing statements shall have been duly executed and properly
recorded or filed in such manner and in each jurisdiction in which
recording is required to establish the mortgage lien and security
interest created by the Indenture as a mortgage lien on and/or a
security interest in the property encumbered by the lien of the
Indenture.
(m) On or prior to the Closing Date, the Underwriter
shall have received satisfactory evidence that the Insurance Policy has
been issued by the Insurer and confirmation that the Notes have been
rated at least Aaa by Xxxxx'x Investors Services, Inc. and at least AAA
by Standard & Poor's Corporation.
If any of the conditions specified in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Underwriter upon
notice to the Company or such conditions may be waived, modified or the time for
fulfillment thereof may be extended by the Underwriter upon notice to the
Company.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The obligations of
the Company to deliver the Certificates representing the Notes shall be subject
to the condition that no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and no proceedings
therefor shall be pending or threatened by the Commission at the Closing Date.
In the event the conditions specified in this Section 7 shall
not be fulfilled, this Agreement may be terminated by the Company upon delivery
of notice to the Underwriter. Any such notice shall be without liability of the
Company to the Underwriter, except as otherwise provided in Section 10(c)
hereof, and without liability of the Underwriter to the Company.
8. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which the Underwriter or such
controlling person may be subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, any amendment or supplement to the
foregoing, any related preliminary prospectus or based upon written
information furnished by the Company filed in any jurisdiction in order
to qualify the Notes under the securities laws thereof or filed with
the Commission or any securities exchange or 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; and,
subject to the limitations set forth in Section 8(c) hereof, will
reimburse the Underwriter and each controlling person for any legal or
other expenses reasonably incurred by the Underwriter or such
controlling person in
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connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use in the Prospectus or any such
document; provided further, however, that the indemnification contained
in this paragraph with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriter (or any person controlling the
Underwriter) on account of any such losses, claims, damages,
liabilities or expenses arising from the sale of the Notes by the
Underwriter to any person if a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been
furnished to the Underwriter prior to the written confirmation of the
sale involved) shall not have been given or sent to such person by or
on behalf of the Underwriter with or prior to the written confirmation
of the sale involved, and the untrue or alleged untrue statement or
omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid). Indemnification
pursuant to this Section 8 will be in addition to any liability which
the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director,
officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, any related preliminary prospectus or based upon written
information furnished by the Company filed in any jurisdiction in order
to qualify the Notes under the securities laws thereof or filed with
the Commission or any securities exchange or any omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter
specifically for use in the Prospectus or any such document and,
subject to the limitations set forth in Section 8(c) hereof, will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. Indemnification pursuant to this Section 8
will be in addition to any liability which the Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any claim or action is
brought against any indemnified party, and the indemnified party
notifies the indemnifying party of the claim or the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
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indemnifying party similarly notified, assume the defense thereof, with
counsel chosen by the indemnifying party and reasonably satisfactory to
the indemnified party and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
claim or action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than as provided in the following sentence or
reasonable costs of investigation. The indemnified party shall have the
right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party
has been authorized by the indemnifying party, (ii) counsel to the
indemnified party shall have reasonably concluded that representation
of both the indemnifying party and the indemnified party would be
inappropriate due to actual or likely conflict of interest between the
indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party, provided, however, that in no case shall the
indemnifying party be responsible for the fees and expenses of more
than one such counsel. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its consent.
9. CONTRIBUTION. If the indemnification provided for in
Section 8 of this Agreement is unavailable to an indemnified party in respect of
any losses, claims, damages or liabilities referred to therein, then the
indemnifying party under Sections 8(a) and (b), as the case may be, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party 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 Underwriter on
the other from the offering of the Notes 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 of the
Underwriter 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 Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discount and commissions received by the Underwriter, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company and of the Underwriter shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or by the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding sentence. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 8 shall be deemed to
include, subject to the limitations set forth above and in Section 8 hereof, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
10. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective (i) if the
Commission has not declared the Registration Statement effective under
the Act, at 11:00 a.m., St. Louis time, on the first full business day
following the Effective Date, or (ii) if the Commission has declared
the Registration Statement effective, (A) at 11:00 a.m., St. Louis
time, on the day following the date hereof, or (B) at such earlier time
as the Underwriter shall first release the Notes for sale to the
public. For the purposes of this Section, the Notes shall be deemed to
have been released for sale to the public upon release by the
Underwriter for publication of a newspaper advertisement relating
thereto or upon release by the Underwriter of facsimile transmissions
offering the Notes for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time
this Agreement becomes effective, the Underwriter or the Company may
prevent this Agreement from becoming effective without liability of any
party to any other party, except that the provisions of Sections 5, 8
and 9 hereof shall at all times be effective.
(b) This Agreement may be terminated at any time prior to
the Closing Date by the Underwriter by written notice to the Company,
if in the judgment of the Underwriter it is impracticable to offer for
sale or to enforce contracts made by the Underwriter for the resale of
the Notes by reason of (i) trading generally in securities on the New
York Stock Exchange, Inc. having been suspended or limited or minimum
prices having been established on such exchange, (ii) a banking
moratorium having been declared by the United States or by New York
state authorities, or (iii) an outbreak of major hostilities or other
national or international calamity having occurred.
(c) If the obligations of the parties to this Agreement
shall be terminated pursuant to Section 6 or 7 hereof or this Section
10, or if the purchases provided for herein are not consummated because
of any refusal, inability or failure on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to
perform all of its obligations under this Agreement, the Company shall
not be liable to the Underwriter for damages on account of loss of
anticipated profits arising out of the transactions covered by this
Agreement, but the Company shall remain liable to the extent provided
in Sections 5(a) and 8(a) hereof, and, except where termination occurs
pursuant to clause (i), (ii) or (iii) of Section 10(b) hereof, the
Company shall pay the out-of-pocket expenses incurred by the
Underwriter in contemplation of the performance by it of its
obligations hereunder, including the fees and disbursements of its
counsel and its traveling expenses and postage, telegraph and telephone
charges.
(d) If the Underwriter elects to prevent this Agreement
from becoming effective or to terminate this Agreement as provided in
this Section, the Company shall be notified promptly by the Underwriter
by telephone or telegram, confirmed by letter. If the Company elects to
prevent this Agreement from becoming effective, the Underwriter shall
be notified promptly by the Company by telephone or telegram, confirmed
by letter.
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11. SURVIVAL OF INDEMNITIES, REPRESENTATIONS AND
WARRANTIES. The respective indemnities of the Company and the Underwriter and
the respective representations and warranties of the Company and the Underwriter
set forth in this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or the Underwriter or any
of their respective officers, directors, partners or any controlling person, and
will survive delivery of and payment for the Notes or termination of this
Agreement pursuant to Section 10 hereof, as the case may be.
12. PARTIES IN INTEREST; ENTIRE AGREEMENT. This Agreement
shall inure to the benefit of the Company, the Underwriter, the officers,
directors and partners of such parties, each controlling person referred to in
Section 8 hereof, and their respective successors. Nothing in this Agreement is
intended or shall be construed to give to 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.
The term "successor" as used in this Agreement shall not
include any purchaser, as such purchaser, of any Notes from the Underwriter.
This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes any agreement
previously entered into.
13. NOTICES. All communication, terminations and notices
hereunder shall be in writing and sent to the Company and to the Underwriter.
Notices shall be mailed, delivered, transmitted by facsimile or telegraphed and
confirmed to the Underwriter at 00000 Xxxxxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
00000-0000 (telecopier: (000) 000-0000) (Attn: Xxxxxxxx Xxxxx, Esq.) (or such
other place as the Underwriter may specify in writing) with a copy to Xxxxx Xxxx
LLP, Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000 (telecopier
(000) 000-0000) (Attn: Xxxxx X. Xxxxx, Xx., Esq.) and to the Company at 000
Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (telecopier: (401) 272-____)
(Attn: ____________________) (or such other place as the Company may specify in
writing) with a copy to Xxxxxxxx, Xxxxx & Xxxxxx, 0000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 02903 (telecopier: (000) 000-0000) (Attn: Xxxxxxxx
Xxxxxxx, Esq.).
14. COUNTERPARTS. This Agreement may be executed in any
number of counterparts which, taken together, shall constitute one and the same
instrument.
15. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri.
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Please sign the enclosed duplicate of this letter whereupon
this letter will become a binding agreement between the parties in accordance
with its terms.
Very Truly Yours,
THE PROVIDENCE GAS COMPANY
By: ___________________________________
Name: _________________________________
Title: ________________________________
The foregoing Agreement is hereby
confirmed and accepted, as of the
date first above written.
XXXXXX X. XXXXX & CO., L.P.
By
------------------------------
Authorized Signatory
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SCHEDULE I
FORM OF OPINION OF TRUSTEE'S COUNSEL
The opinion of Xxxxxxx & Xxxxxxx LLP shall be to the effect
that:
1 The Trustee has been duly organized and is validly
existing as a trust company in good standing under the laws of The
Commonwealth of Massachusetts
2. The Trustee has all requisite power and authority
(corporate and other) to enter in the Twentieth Supplemental Indenture
and to perform, as trustee, the transactions contemplated thereby and
by the Indenture.
3. The Twentieth Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of the Trustee
(no action by the stockholders of the Trustee being required by law, by
any charter document or bylaw of the Trustees or otherwise), has been
duly executed and delivered by the Trustee and constitutes the legal,
valid and binding obligation of the Trustee, enforceable in accordance
with its terms.
4. The Notes have been duly authenticated by the
Trustee.
5. No consents of, approval or authorizations by,
registrations with, or notices to any governmental or public regulatory
authority or agency are required on the part of the Trustee under any
federal or Commonwealth of Massachusetts law governing the trust powers
of the Trustee in connection with the execution, delivery and
performance of the Twentieth Supplemental Indenture, except as have
been obtained, taken or made.
Note: Such opinion may contain reasonable limitations.
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SCHEDULE II
FORM OF OPINION OF XXXXXXX'S COUNSEL
The opinion of Insurer's counsel shall be to the effect that:
1. MBIA Insurance Corporation (the "Corporation") is a
stock insurance corporation, duly incorporated and validly existing
under the laws of the State of New York, and is licensed and authorized
to issue the Policy under the laws of the State of New York.
2. The Policy has been duly executed and is a valid and
binding obligation of the Corporation enforceable in accordance with
its terms.
3. The Policy is not required to be registered under the
Securities Act.
4. The statements set forth under the caption "The
Policy" in the Prospectus dated January __, 1999 (the "Prospectus")
insofar as such statements constitute a description of the Policy,
accurately summarize the Policy.
Note: Such opinion may contain reasonable limitations.
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