EXHIBIT 1
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Central Xxxxxx Gas & Electric Corporation
$85,000,000
Medium-Term Notes, Series E
DISTRIBUTION AGREEMENT
October 28, 2004
New York, New York
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
McDonald Investments Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Dear Sirs:
Central Xxxxxx Gas & Electric Corporation, a New York corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $85,000,000 aggregate principal amount of its
Medium-Term Notes, Series E (the "Notes").
The Company proposes to issue the Notes under its Indenture (the
"Indenture") dated as of April 1, 1992 to U.S. Bank Trust National Association
(formerly known as First Trust of New York, National Association) ("U.S. Bank
Trust") as successor to Xxxxxx Guaranty Trust Company of New York, as trustee
(the "Trustee").
The Notes will be issued in minimum denominations of $1,000 and
integral multiples thereof (unless otherwise specified by the Company), will be
issued only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture and, in the case
of Notes sold pursuant to Section 2(a), the Administrative Procedures attached
hereto as Exhibit A (the "Procedures"). The Procedures may only be amended by
written agreement of the Company and you after notice to, and with the approval
of, the Trustee. For the purposes of this Agreement, the term "Agent" shall
refer to any of you, the term "Purchaser" shall refer to any of you acting
solely as principal for resale to investors pursuant to Section 2(b) and not as
agent, and the term "you" shall refer to you together at any time any of you is
acting in both such capacities or in either such capacity; provided that any
additional person appointed as an Agent pursuant to Section 2(a) shall be
included in the terms "Agent" and "you".
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"). The Company filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File No. 333-116286), including a form of preliminary
prospectus which became effective, for the registration under the Act and the
offering thereof from time to time pursuant to Rule 415 of, among other things,
up to $85,000,000 aggregate principal amount of debt securities. The Company has
filed or will file with the Commission pursuant to the applicable paragraph of
Rule 424 under the Act, any supplement or supplements to the form of prospectus
included in such registration statement relating to the Notes and the plan of
distribution thereof (such supplement being hereinafter called a "Prospectus
Supplement"). Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under
the Act and complies in all other material respects with said Rule. In
connection with the sale of Notes, the Company proposes to file with the
Commission pursuant to the applicable paragraph of Rule 424 under the Act one or
more further supplements to the Prospectus Supplement providing for the
specification of or a change in the interest rates, if any, maturity dates,
issuance prices, redemption terms and prices, if any, and, if appropriate, other
terms of the Notes sold pursuant hereto or the offering thereof (any such
supplement being hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the Execution
Time, (ii) on the Effective Date, (iii) when any supplement to the Prospectus is
filed with the Commission, (iv) as of the date of any Terms Agreement (as
defined by Section 2(b)) and (v) at the date of delivery by the Company of any
Notes sold hereunder (each such delivery date, a "Closing Date"), (1) the
Registration Statement, as amended as of any such time, and the Prospectus, as
supplemented as of any such time, the Indenture, as amended or supplemented as
of any such time, complied or will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the respective rules thereunder; (2) the Registration
Statement, as amended as of any such time, did not or will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and (3) the Prospectus, as supplemented as of any such time, will
not include an untrue statement of a terial fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) that part of
the Registration Statement which shall constitute the Statements of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (B)
the information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you specifically for
use in connection with the preparation of the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the later of
(i) the date that the Registration Statement or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission or (ii) the
time and date of the filing of the Company's most recent Annual Report on Form
10-K. "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus" shall mean the
form of basic prospectus relating to the debt securities contained in the
Registration Statement at the Effective Date (unless such basic prospectus has
been amended by the Company subsequent to the Effective Date, in which case
"Basic Prospectus" shall mean the form of preliminary prospectus as so amended).
"Prospectus" shall mean the Basic Prospectus as supplemented by the Prospectus
Supplement and as it may be further amended or supplemented at the particular
time referred to. "Registration Statement" shall mean the registration
statements referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as they may be amended at the particular time
referred to. "Rule 415" and "Rule 424" refer to such rules under the Act. Any
reference herein to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement 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
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amended", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
(d) Neither the Company nor its Subsidiary (as hereinafter
defined) has sustained since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which has had or is
reasonably likely to have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its Subsidiary
taken as a whole, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock (other than pursuant to any
stock purchase, dividend reinvestment, savings, bonus, incentive, or similar
plan, conversions of convertible securities into common stock or shares of
capital stock issued or to be issued by the Subsidiary pursuant to one or more
subscription agreements in effect between the Subsidiary and the Company at the
date hereof) or long-term debt (other than normal amortization of debt premium
and discount, bank or finance company borrowings and repayments in the ordinary
course, or additional issuances or repurchases of commercial paper) of the
Company or its Subsidiary or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its Subsidiary taken as a whole, otherwise than as
set forth or contemplated in the Registration Statement and the Prospectus.
(e) Each of Phoenix Development Company, Inc. (the
"Subsidiary") and the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of the Company and its Subsidiary
taken as a whole; and all of the outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company subject to no security
interest, other encumbrance or adverse claim. Notwithstanding the foregoing, if
the Subsidiary as of the date hereof or any subsequent date should hereafter or
thereafter cease to be a subsidiary (within the meaning of Rule 405 promulgated
by the Commission under the Act) of the Company, such corporation shall be
deemed to be excluded from the definition of such term from and after such date.
(f) The issuance and sale of the Notes have been duly and
validly authorized by the Company and, when issued within the limitations set
forth in the order or orders of the Public Service Commission of the State of
New York referred to in subsection (g) below and executed and authenticated in
accordance with the provisions of the Indenture and delivered and paid for by
the purchasers thereof, the Notes will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture
equally and ratably with the securities outstanding thereunder; the Indenture
has been duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and to an implied covenant of good faith and
fair dealing; and the Notes and the Indenture conform to the descriptions
thereof in the Registration Statement and the Prospectus.
(g) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, this Agreement
and any Terms 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 is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject (except that, for purposes of this
representation and warranty, compliance with any financial covenant requiring an
arithmetic computation (not determinable at the Execution Time) in respect of
any Notes shall be measured at the time of the establishment of the terms of
such Notes), nor will such action result in any violation of the provisions of
the Company's Certificate of Incorporation, as amended, or the Bylaws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
property or assets; and no consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Company
of the other transactions contemplated by this Agreement or any Terms Agreement
or the Indenture except such as have been obtained prior to the Execution Time
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the public offering of the Notes,
and except for filings with and the orders from the Public Service Commission of
the State of New York authorizing the issuance and sale by the Company of the
Notes subject to certain conditions set forth therein, which orders have been
obtained and are in full effect.
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the Company or
its Subsidiary is a party or of which any property of the Company or its
Subsidiary is the subject which, if determined adversely to the Company or its
Subsidiary, would individually or in the aggregate have a material adverse
effect on the financial position, stockholders' equity or results of operations
of the Company and its Subsidiary 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.
(i) There are no contracts or documents of the Company or its
Subsidiary that are required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement by the
Act or by the rules and regulations thereunder that have not been so described
or filed.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and conditions
set forth herein, the Company hereby authorizes each of the Agents to act as its
agent to solicit offers for the purchase of all or part of the Notes from the
Company. On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable best efforts to solicit offers to purchase
the Notes from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion, to
reject any offer to purchase Notes, in whole or in part. In addition, the
Company reserves the right, in its sole discretion, to instruct the Agents to
suspend at any time, for any period of time or permanently, the solicitation of
offers to purchase the Notes. Upon receipt of instructions from the Company, the
Agents will forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised them that such solicitation
may be resumed.
The Company agrees to pay each Agent a commission on the Closing Date
with respect to each sale of Notes by the Company as a result of a solicitation
made by such Agent pursuant to this subsection, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal amount of
the Notes sold by the Company or in such other amount as may be agreed to in
writing between the Company and an Agent; provided that such amount shall not
exceed the amounts set forth on Schedule I hereto. Such commission shall be
payable as specified in the Procedures.
Subject to the provisions of this Section 2 and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such times and in such amounts as such Agent deems advisable. The
Company may, upon five (5) days' prior written notice to the Agents, appoint
additional persons to serve as Agents hereunder, but only if each such
additional person agrees to be bound by all the terms of this Agreement as an
Agent. The Company reserves the right to sell, and may solicit and accept offers
to purchase, Notes directly on its own behalf, and, in case of any such sale not
resulting from a solicitation made by any Agent, no commission shall be payable
by the Company with respect to such sale. To the extent a potential investor
contacts the Company directly with an offer or inquiry to purchase Notes, the
Company, in lieu of accepting such offer to purchase and selling Notes directly
on its own behalf, may refer such potential investor to any Agent to complete
such sale (each a "Reverse Offer"). Any commission payable to such Agent on the
Closing Date with respect to a Reverse Offer shall be in an amount as may be
agreed to by the Company and such Agent at such time. The Company agrees, so
long as any Agent is serving in such capacity hereunder, that it will not
contact or solicit potential investors introduced to it by such Agent to
purchase Notes.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determine that the Company shall sell Notes
directly to any of you as Purchaser, each such sale of Notes shall be made in
accordance with the terms of this Agreement and, unless otherwise agreed by the
Company and the Purchaser, any supplemental agreement relating thereto between
the Company and the Purchaser. Each such supplemental agreement (which shall be
substantially in the form of Exhibit B hereto) is herein referred to as a "Terms
Agreement." The Purchaser's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall describe the Notes
to be purchased by the Purchaser pursuant thereto, specify the principal amount
of such Notes, the price to be paid to the Company for such Notes, the rate at
which interest will be paid on the Notes, the Closing Date for such Notes, the
place of delivery of the Notes and payment therefor, the method of payment and
any modification of the requirements for the delivery of the opinions of
counsel, the certificates from the Company or its officers, and the letter from
the Company's independent public accountants, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time referred to in Section
4(m). Except as set forth in any Terms Agreement, no commission shall be payable
by the Company with respect to any sale of Notes pursuant to a Terms Agreement.
Delivery of the Notes sold to the Purchaser pursuant to any Terms
Agreement shall be made as agreed to between the Company and the Purchaser as
set forth in the respective Terms Agreement, not later than the Closing Date set
forth in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form set
forth in the respective Terms Agreement.
3. Offering and Sale of Notes.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed under the
Exchange Act, (ii) a Pricing Supplement or (iii) a supplement relating to an
offering of debt securities other than the Notes) unless the Company has
furnished each of you a copy for your review prior to filing and given each of
you a reasonable opportunity to comment on any such proposed amendment or
supplement. Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424 within the time period prescribed. The Company
will promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424, (ii)
when, prior to the termination of the offering of the Notes, any amendment of
the Registration Statement shall have been filed or become effective, (iii) of
any request by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as reasonably
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include an 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, or if it shall be necessary to amend the Registration Statement or
to supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified by the
Company, each of you shall forthwith suspend such solicitation and cease using
the Prospectus as then supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in such
quantities as you may reasonably request; provided, however, that should any
such event relate solely to activities of you, then you shall assume the expense
of preparing and furnishing any such amendment or supplement. If such amendment
or supplement, and any documents, certificates and opinions furnished to each of
you pursuant to paragraphs (g), (j), (k) and (l) of this Section 4 in connection
with the preparation of filing of such amendment or supplement are satisfactory
in all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your obligation
to solicit offers to purchase Notes hereunder.
(c) During the term of this Agreement, the Company will timely
file all documents required to be filed with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, on the date on which
the Company (or as soon as practicable thereafter) makes any announcement to the
general public concerning earnings or concerning any other event which is
required to be described, or which the Company proposes to describe, in a
document filed pursuant to the Exchange Act, the Company will furnish to each of
you the information contained in such announcement. The Company will notify each
of you of any downgrading in the rating of the Notes or any other debt
securities of the Company, or any public announcement of placement of the Notes
or any other debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), promptly
after the Company learns of any such downgrading or public announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings statement or
statements of the Company and its Subsidiary which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge (except as otherwise provided herein), a reasonable number of
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus may be required by the Act, as many copies of the
Prospectus and any supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Notes, and upon your request will arrange for the
determination of the legality of the Notes for purchase by institutional
investors; provided, however, 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, to pay filing fees and other expenses in connection therewith
in the aggregate exceeding $4,000, or to comply with any other requirement
reasonably deemed by the Company to be unduly burdensome.
(g) During the term of this Agreement, the Company shall
furnish to each of you (i) copies of all annual, quarterly and other reports
furnished to stockholders, (ii) copies of all annual, quarterly and current
reports (without exhibits but including documents incorporated by reference
therein) of the Company filed with the Commission under the Exchange Act and
(iii) such other information concerning the Company as you may reasonably
request from time to time.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement, including the fees and disbursements of its accountants
and counsel, the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the Notes,
the fees and disbursements, including reasonable fees of counsel, incurred
pursuant to Section 4(f), the fees and disbursements of the Trustee and the fees
of any ratings agency that rates the Notes, (ii) reimburse each of you on a
monthly basis for all reasonable out-of-pocket expenses incurred by you in
connection with this Agreement (including, but not limited to, advertising
expenses), in the aggregate not to exceed $2,500 per Agent for the term of this
Agreement, and (iii) pay the reasonable fees and expenses of your counsel
incurred in connection with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be a new making to you of the representations and
warranties of the Company in Section 1 (except that such representations and
warranties shall be deemed to relate solely to the Registration Statement as
then amended and to the Prospectus as then amended and supplemented to relate to
such Notes).
(j) Except as otherwise provided in subsection (n) of this
Section 4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement relating
to any offering of debt securities other than the Notes or (ii) a Pricing
Supplement) the Company will deliver or cause to be delivered promptly to each
of you a certificate of the Company, signed by any of the Chairman of the Board,
the President and Chief Executive Officer, any Vice President having
responsibilities for financial matters or the Controller or the Treasurer of the
Company, dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form reasonably satisfactory to you, of the
same tenor as the certificate referred to in Section 5(d) but modified to relate
to the last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration Statement
and the Prospectus as amended and supplemented to the time of the effectiveness
of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this
Section 4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement relating
to any offering of debt securities other than the Notes or (ii) a Pricing
Supplement), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion, satisfactory to you, by Xxxxxxxx Xxxx LLP, counsel for
the Company, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form satisfactory to each of you, of the
same tenor as the opinion referred to in Section 5(b), but modified to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement or,
in lieu of such opinion, such counsel may furnish each of you with a letter to
the effect that you may rely on such counsel's last opinion to the same extent
as though it were dated the date of such letter authorizing reliance (except
that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement).
(l) Except as otherwise provided in subsection (n) of this
Section 4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement relating
to any offering of debt securities other than the Notes or (ii) a Pricing
Supplement) to set forth amended or supplemental financial information (derived
from the accounting records of the Company subject to the internal controls of
the Company's accounting system or derived directly from such records by
computation), the Company shall cause its independent public accountants
promptly to furnish each of you a letter, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter referred to in
Section 5(e) with such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by reference in the
Registration Statement and the Prospectus, as amended or supplemented to the
date of such letter.
(m) During the period, if any, specified in any Terms
Agreement, the Company shall not, without the prior consent of the Purchaser
thereunder, issue or announce the proposed issuance of any of its debt
securities, including the Notes, with maturities or other terms substantially
similar to the Notes being purchased pursuant to such Terms Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (j), (k) and (l) of this Section 4 during any period
(which may occur from time to time during the term of this Agreement) for which
the Company has instructed the Agents to suspend the solicitation of offers to
purchase Notes with respect to any Agent who is not a Purchaser holding Notes
during any such period pursuant to any Terms Agreement. Whenever the Company has
instructed the Agents to suspend the solicitation of offers to purchase Notes
for any such period, however, prior to instructing the Agents to resume the
solicitation of offers to purchase Notes or prior to entering into any Terms
Agreement, the Company shall be required to comply with the provisions of
subsections (j), (k) and (l) of this Section 4, but only to the extent of
delivering or causing to be delivered the most recent certificate, opinion or
letter, as the case may be, which would have otherwise been required under each
such subsection unless the Agents otherwise reasonably request that such
documents in respect of prior periods be delivered.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to (i) the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date and when any
supplement to the Prospectus is filed with the Commission, (ii) the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule 424;
and no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion
of Xxxxxxxx Xxxx LLP, counsel for the Company, dated the Execution Time, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and governmental) to own its properties and conduct its
business as described in the Prospectus, as amended or supplemented,
and is duly qualified to do business in each jurisdiction in which it
owns or leases real property or in which the conduct of its business
requires such qualification except where the failure to be so
qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position
or results of operations of the Company; provided, however, that at
such time, if ever, the Subsidiary constitutes 10% or more of the
consolidated assets of the Company or contributes 10% or more of the
consolidated net income of the Company for the then most recent
12-month period, the Agents may request that Xxxxxxxx Xxxx LLP include
in any written opinion to them required by this Section 5(b) or Section
4(k), an opinion to the effect that the Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and governmental) to own its properties and
conduct its business as described in the Prospectus, as amended or
supplemented, and is duly qualified to do business in each jurisdiction
in which it owns or leases real property or in which the conduct of its
business requires such qualification except where the failure to be so
qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position
or results of operations of the Company and the Subsidiary taken as a
whole; and all of the outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable and are owned beneficially by the Company subject to
no security interest, other encumbrance, or adverse claim.
(ii) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a party or
of which any property of the Company is the subject which, if
determined adversely to the Company, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its Subsidiary, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(iii) This Agreement has been duly authorized, executed
and delivered by the Company.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally, to general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to an implied
covenant of good faith and fair dealing; and the Indenture has been
duly qualified under the Trust Indenture Act.
(v) The issuance and sale of the Notes have been duly
and validly authorized by the Company and, when issued within the
limitations set forth in the applicable order or orders from the Public
Service Commission of the State of New York referred to in paragraph
(x) below and executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
purchasers thereof in accordance with this Agreement, the Notes will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting the
enforcement of creditors' rights generally, to general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and to an implied covenant of good
faith and fair dealing, and will be entitled to the benefit provided by
the Indenture equally and ratably with the securities outstanding
thereunder (except insofar as a sinking fund established in accordance
with the provisions of the Indenture may afford additional benefit for
the securities of any particular series); and the Notes and the
Indenture conform as to legal matters to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(vi) The issue and sale of the Notes and the compliance
by the Company with all of the provisions of the Notes, the Indenture
and this Agreement and the consummation of the transactions therein and
herein contemplated (except as to compliance with any financial
covenant requiring an arithmetic computation not determinable at the
Execution Time as to which such counsel need express no opinion) 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 material other agreement or instrument
known, as of the date of such opinion, to such counsel to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Company's Certificate
of Incorporation, as amended, or the Bylaws of the Company or any
statute or any order, rule or regulation known, as of the date of such
opinion, to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its properties.
(vii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body having jurisdiction over the Company or any of its
properties is required for the issue and sale of the Notes or the
consummation by the Company of the other transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the public
offering of the Notes, and except for filings with and the order or
orders from the Public Service Commission of the State of New York
authorizing the issuance and sale by the Company of the Notes subject
to certain conditions set forth therein, which order or orders have
been obtained and, to the best knowledge of such counsel, are in full
force and effect.
(viii) The Registration Statement, at the Effective Date,
and the Prospectus, as of the date of such opinion (except as to the
financial statements and other financial or statistical data contained
or incorporated by reference therein and except for that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee, as to which such counsel need express no opinion)
comply as to form in all material respects with all applicable
requirements of the Act, and, with respect to the documents or portions
thereof filed with the Commission pursuant to the Exchange Act and
incorporated by reference in the Prospectus pursuant to Item 12 of Form
S-3, the Exchange Act and the applicable instructions, rules and
regulations of the Commission thereunder; on the basis of information
received from the Commission, at the date of such opinion, the
Registration Statement has become effective under the Act, and, to the
best knowledge of such counsel, no proceedings for a stop order with
respect thereto have been instituted or are pending or threatened under
Section 8 of the Act; and based on such counsel's participation in the
preparation of the Registration Statement and Prospectus and its
services as general counsel to the Company (but such opinion may state
that such counsel did not independently check or verify the correctness
of the statements made by the Company or factual information included
in the Registration Statement and Prospectus, and thereby may assume
the correctness thereof, except insofar as such statements or
information relate to such counsel or are stated in the Registration
Statement or Prospectus as having been made on their authority as
experts), no facts have come to the attention of such counsel to cause
them to believe, and such counsel have no reason to believe, that the
Registration Statement, at the Effective Date, 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 (except as to the financial statements or other
financial or statistical data contained in or incorporated by reference
in the Registration Statement and the Prospectus and except for that
part of the Registration Statement which shall constitute the
Statements of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee), or that the Prospectus, as of the date
of such opinion, includes an untrue statement of a material fact 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 (except as to the financial statements or
other financial or statistical data contained in or incorporated by
reference in the Registration Statement and the Prospectus).
(ix) The Company is not subject to the provisions of the
Public Utility Holding Company Act of 1935, except Section 9(a)(2)
thereof; and the Company's gas distribution activities are exempt from
the Natural Gas Act.
(x) The Public Service Commission of the State of New
York has issued an appropriate order or orders with respect to the
issuance and sale of the Notes in accordance with this Agreement; to
the best knowledge of such counsel, such order or orders are still in
full force and effect; the issuance and sale of the Notes in accordance
with this Agreement and subject to the limitations set forth in such
orders will conform with the terms of such order or orders.
As to factual matters (including relating to the Company's financial
condition) included in said opinion, such counsel may rely upon certificates of
public officials as of a recent date, the warranties and representations of the
Company set forth in this Agreement, and certificates of the Company made
pursuant to the provisions of this Agreement.
(c) Each Agent shall have received from Pillsbury Winthrop
LLP, counsel for the Agents, an opinion, dated the Execution Time, with respect
to the issuance and sale of the Notes, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Agents may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by any of the Chairman of the Board, the
President, the Chief Financial Officer or any Vice President having
responsibilities for financial matters, the Controller or the Treasurer of the
Company, dated the Execution Time, to the effect that the signer of such
certificate has carefully examined the Registration Statement, the Prospectus,
any supplement to the Prospectus and this Agreement and that:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all material respects
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied as a condition
to the obligation of the Agents to solicit offers to purchase the
Notes.
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened.
(iii) (A) Neither the Company nor its Subsidiary
has sustained since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which has had or is reasonably likely to have a
material adverse effect on the financial position, stockholders' equity
or results of operations of the Company and its Subsidiary taken as a
whole, otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus and (B) since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock (other
than pursuant to any stock purchase, dividend reinvestment, savings,
bonus, incentive, or similar plan, conversions of convertible
securities into common stock, or shares of capital stock issued or to
be issued by the Subsidiary pursuant to one or more subscription
agreements in effect between the Subsidiary and the Company at the date
hereof), or long-term debt (other than normal amortization of debt
premium and discount, bank or finance company borrowings and repayments
in the ordinary course, or additional issuances or repurchases of
commercial paper) of the Company or its Subsidiary or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of
the Company and its Subsidiary taken as a whole, otherwise than as set
forth or contemplated in the Registration Statement and the Prospectus.
(e) At the Execution Time, PricewaterhouseCoopers LLP shall
have furnished to each Agent a letter, dated as of the Execution Time, in form
and substance satisfactory to the Agents, stating in effect that:
(i) They are independent accountants with respect
to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(ii) In their opinion the financial statements and
schedules of the Company included in the Company's Annual Report on
Form 10-K for the year ended December 31, 2003, which are incorporated
by reference in the Prospectus and examined by such firm, comply as to
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act, and the respective
published rules and regulations thereunder.
(iii) On the basis of procedures (but not an audit
in accordance with generally accepted auditing standards) consisting
of: (A) reading the amounts included in the Annual Report appearing in
the table captioned "Five-Year Summary of Consolidated Operations and
Selected Financial Information" for the five years ended December 31,
2003 (the "Audited Amounts") which were derived from the financial
statements for such years as examined by such accountants (the "Audited
Statements"); (B) performing the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in SAS No. 100, Interim Financial
Information, on the unaudited condensed interim financial statements of
the Company included in the Registration Statement and the Prospectus
(the "Unaudited Statements"), and reading any more recent unaudited
interim financial data of the Company; (C) reading the minutes of
meetings of the shareholders, Board of Directors and Committees of the
Board of Directors of the Company held during the period from December
31, 2003 as set forth in the minutes book through a specified date not
more than five business days prior to the date of such letter; and (D)
making inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding the
specific items for which representations are requested in Sections
5(e)(iii)(1) to 5(e)(iii)(4), nothing has come to their attention as a
result of the foregoing procedures that caused them to believe that:
(1) the Unaudited Statements incorporated by
reference in the Registration Statement and the Prospectus do
not comply in form in all material respects with the
applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in Quarterly
Reports on Form 10-Q under the Exchange Act; or that any
material modifications should be made to said Unaudited
Statements for them to be in conformity with generally
accepted accounting principles;
(2) the Audited Amounts were not derived
from the Audited Statements;
(3) at the date of the latest available
monthly unconsolidated balance sheet (as adjusted to reflect
the relevant activity of the Subsidiary through said date) of
the Company read by such accountants, there was any change in
the capital stock or long-term debt of the Company, or any
decrease in the total shareholders' equity, as compared with
amounts shown on the latest balance sheet included in the
Audited Statements, except, in all instances, for changes or
decreases which are described in such letter; or
(4) for the period subsequent to the date of
the Audited Statements to the date of the latest available
monthly unconsolidated income statement (as adjusted to
reflect the relevant activity of the Subsidiary through said
date) of the Company read by such accountants, there were any
decreases, as compared with the corresponding period of the
previous year, in total operating revenues or net income of
the Company, except, in all instances, for changes or
decreases which are described in such letter.
(iv) They have compared certain dollar amounts (or
percentages derived from such dollar amounts) and other financial
information specified by the Agents (A) which appear in the Prospectus
under the caption "Ratios of Earnings to Fixed Charges", (B) which
appear or are incorporated by reference in the Company's Annual Report
on Form 10-K incorporated by reference in the Registration Statement
and the Prospectus under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" or (C) which
appear in any of the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Registration Statement and the
Prospectus under the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Ratios of Earnings
to Fixed Charges" (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
accounting records of the Company subject to the internal controls of
the Company's accounting system or are derived directly from such
records by computation) to the accounting records of the Company or
schedules prepared from data in such records and have found such dollar
amounts, percentages and other financial information to be in
agreement.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Each Agent shall have received copies of the Letter of
Representations between the Company, U.S. Bank Trust and The Depositary Trust
Company ("DTC"), satisfactory to each of you, summarizing DTC's agreement to
hold, safekeep and effect book-entry transfers of the Notes.
(g) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents, certificates and
opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this Agreement and all
obligations of any Agent hereunder may be canceled at any time by the Agents.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 at the
Execution Time shall be delivered at the office of Xxxxxxxx Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of any related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) If specified by any related Terms Agreement and except to
the extent modified by such Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of the Closing
Date, to the effect set forth in Section 5(d), (ii) the opinion of Xxxxxxxx Xxxx
LLP, counsel for the Company, dated as of the Closing Date, substantially to the
effect set forth in Section 5(b), (iii) the opinion of Pillsbury Winthrop LLP,
counsel for the Purchaser, dated as of the Closing Date, substantially to the
effect set forth in Section 5(c) and (iv) the letter of PricewaterhouseCoopers
LLP, independent public accountants for the Company, dated as of the Closing
Date, substantially to the effect set forth in Section 5(e); provided, however,
that references to the Registration Statement and the Prospectus in such
certificate, opinions and letter shall be to the Registration Statement and the
Prospectus as then amended and supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and any Terms Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the Purchaser
and its counsel, such Terms Agreement and all obligations of the Purchaser
thereunder and with respect to the Notes subject thereto may be canceled at, or
any time prior to, the respective Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
Company agrees that any person who has agreed to purchase and pay for any Note,
including a Purchaser and any person who purchases pursuant to a solicitation by
any of the Agents, shall have the right to refuse to purchase such Note if, at
the Closing Date therefor, either (a) any condition set forth in Section 5 or
Section 6, as applicable, shall not be satisfied or (b) subsequent to the
agreement to purchase such Note, there shall have occurred (i) any change in or
affecting the business or properties of the Company and its Subsidiary,
considered as one enterprise, the effect of which, in the reasonable judgment of
such person, has a material adverse effect on the investment quality of such
Note or (ii) any event described in paragraphs (ii), (iii), (iv) or (v) of
Section 9(b).
8. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each of you against all losses, claims, damages or liabilities,
joint or several, to which you may become 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 an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus, any Prospectus Supplement and any other prospectus relating to the
Notes, or any amendment or supplement thereto, or arise out of or are based upon
the 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
will reimburse each of you for any legal or other expenses reasonably incurred
by each of you in connection with investigating or defending any such action or
claim; provided, however, that the Company shall 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 alleged untrue statement in or omission or
alleged omission from the Registration Statement, the Prospectus, any Prospectus
Supplement and any other prospectus relating to the Notes or any such amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any of you expressly for use in any such
documents.
(b) Each of you, severally, will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become 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 an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, the Prospectus, any Prospectus
Supplement and any other prospectus relating to the Notes, or any amendment or
supplement thereto, or arise out of or are based upon the omission or 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 the Registration
Statement, the Prospectus, any Prospectus Supplement and any other prospectus
relating to the Notes, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company by each of
you, respectively, expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it (except and
only to the extent that it has been prejudiced in any material respect by such
failure to notify) may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. Any losses, claims, damages or liabilities for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages or liabilities are incurred. In no event shall the
indemnifying party be liable for fees and expenses for more than one counsel
separate from their own counsel for all indemnified parties in connection with
any one action or related actions in the same jurisdiction arising out of the
same allegations or circumstances unless any such indemnified party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to or in conflict with
those available to the other indemnified parties and in the judgment of such
counsel it is advisable for such indemnified party to employ separate counsel.
An indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim, action, suit or proceeding) unless such settlement, compromise or consent
(i) includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and you on the other
from the offering of the Notes, as well as other equitable considerations,
including relative fault in connection with the statements or omissions which
resulted in such losses, claims damages or liabilities. The relative benefits
received by the Company on the one hand and the Agents on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes received by the Company bear to the total discounts and commissions
received by you. The relative fault 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 on the one hand or you on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and you agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if you were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include 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 meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. In connection with an offering of Notes purchased
from the Company by two or more Agents as principal, the respective obligations
of such Agents to contribute pursuant to this Section 8(d) are several, and not
joint, in proportion to the aggregate principal amount of Notes that each Agent
has agreed to purchase from the Company.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any who controls
any of you within the meaning of the Act or the Exchange Act; and the
obligations of you under this Section 8 shall be in addition to any liability
which you may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act or the Exchange Act.
9. Termination. (a) This Agreement will continue in effect until
terminated as provided in this Section 9. This Agreement may be terminated by
either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the third paragraph of Section 2(a), Section 4(d), Section 4(h), Section 8 and
Section 10 and, so long as any Purchaser continues to own Notes, subsections
(a), (b) and (c) of Section 4.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for Notes to be purchased thereunder, if prior to
such time (i) the Purchaser shall exercise its right to refuse to purchase the
Notes which are the subject of such Terms Agreement in accordance with the
provisions of Section 7, or (ii) there shall have occurred any outbreak or
escalation of hostilities or other national or international calamity or crisis,
the effect of which shall be such as to make it, in the reasonable judgment of
the Purchaser, impractical to market the Notes or enforce contracts for the sale
of the Notes, or (iii) trading in any securities of the Company shall have been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have been suspended, or minimum or maximum prices for trading shall have
been fixed, or maximum ranges for prices for securities shall have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iv) if the rating assigned by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) to the Notes or any other debt securities of the
Company as of the date of the applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has placed the Notes or any other debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading, or (v) the subject
matter of any amendment or supplement to the Registration Statement or the
Prospectus prepared and issued by the Company, or the exceptions set forth in
any letter of PricewaterhouseCoopers LLP furnished pursuant to Section 5(e)
hereof, shall have made it, in the judgment of the Purchaser, impracticable or
inadvisable to market the Notes or enforce contracts for the sale of the Notes.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Notes. The provisions of the third paragraph of Section
2(a) and Sections 4(d), 4(h) and 8 hereof shall survive the termination or
cancellation of this Agreement; provided, however, that if at the time of such
termination or cancellation any Purchaser continues to own Notes, the provisions
of subsections (a), (b) and (c) of Section 4 shall also survive such termination
or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to any of you, will be mailed, delivered
or telegraphed and confirmed to such of you, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxx
00000-0000, Attention: Treasurer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least one
counterpart hereof shall have been executed and delivered on behalf of each
party hereto.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and you in accordance with its terms.
Very truly yours,
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
By:
-----------------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
written above.
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------------------------
Title:
X.X. XXXXXX SECURITIES INC.
By:
----------------------------------------------
Title:
MCDONALD INVESTMENTS INC.
By:
-----------------------------------------------
Title:
SCHEDULE I
Commissions:
------------
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
------ ---------------------
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years up to and including 30 years .750%
Address for Notice to You:
--------------------------
Notices to Citigroup Global Markets Inc. shall be directed to it at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, New York 10013, Attention:
Xxxxx X. Kind, Director. Notices to X.X. Xxxxxx Securities Inc. shall be
directed to it at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Transaction Execution Group. Notices to McDonald Investments Inc.
shall be directed to it at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000,
Attention: Xxx Xxxxxxxx, Director.
EXHIBIT A
Central Xxxxxx Gas & Electric Corporation
Medium-Term Notes, Series E
Administrative Procedures
Medium-Term Notes, Series E (the "Notes"), are to be offered on a
continuing basis by Central Xxxxxx Gas & Electric Corporation (the "Company") in
an aggregate principal amount of up to $85,000,000. Citigroup Global Markets
Inc., X.X. Xxxxxx Securities Inc. and McDonald Investments Inc., as agents (each
an "Agent" and collectively the "Agents"), have agreed to use their reasonable
best efforts to solicit offers to purchase the Notes. The Notes are being sold
pursuant to a Distribution Agreement between the Company and the Agents dated
October 28, 2004 (the "Distribution Agreement"), to which these administrative
procedures are attached as an exhibit.
The Notes will be issued under the Company's Indenture, dated as of
April 1, 1992 (the "Indenture"), to U.S. Bank Trust National Association
(formerly known as First Trust of New York, National Association) ("U.S. Bank
Trust"), as successor to Xxxxxx Guaranty Trust Company of New York, as trustee
(the "Trustee"). U.S. Bank Trust will act as the paying agent (the "Paying
Agent") for the payment of principal and premium, if any, and interest on the
Notes and will perform, as the Paying Agent, unless otherwise specified, the
other duties specified herein.
The Notes will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Notes have been registered with
the Securities and Exchange Commission (the "Commission") and may bear interest
at fixed rates or, if issued at a discount, may not bear interest.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to U.S. Bank Trust, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a person
designated by such holder (a "Certificated Note"). Except as set forth in the
Prospectus (as defined in Section 1(c) of the Distribution Agreement), (i) each
Note will be initially issued as a Book-Entry Note and (ii) an owner of a
Book-Entry Note will not be entitled to receive a certificate representing such
Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Book-Entry Notes will be issued in accordance with
the administrative procedures set forth in Part I hereof and Certificated Notes
will be issued in accordance with the administrative procedures set forth in
Part II hereof. Administrative procedures applicable to both Book-Entry Notes
and Certificated Notes are set forth in Part III hereof. Administrative
responsibilities, document control and record-keeping functions will be handled
for the Company by its Controller or Treasurer. The Company will promptly advise
the Agents and the Trustee in writing of those persons handling administrative
responsibilities with whom the Agents and the Trustee are to communicate
regarding offers to purchase Notes and the details of their delivery.
To the extent the procedures set forth below conflict with the
provisions of the Notes, the Indenture or the Distribution Agreement, the
relevant provisions of the Notes, the Indenture and the Distribution Agreement
shall control. Unless otherwise defined herein, terms defined in the Indenture
shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, U.S. Bank Trust will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations to be delivered from the Company and U.S. Bank Trust to DTC and
a Medium-Term Note Certificate Agreement between U.S. Bank Trust National
Association (under its then name First Trust, National Association) and DTC,
dated as of January 31, 1991 (the "MTN Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance:
--------
On any date of settlement (as defined under "Settlement" below)
for one or more Book-Entry Notes, the Company will issue a single
global security in fully registered form without coupons (a
"Global Security") representing up to $85,000,000 aggregate
principal amount of all such Notes that have the same date of
maturity ("Maturity Date"), redemption provisions, if any,
provisions for the repayment or purchase by the Company at the
option of the Holder, if any, Interest Payment Dates, Original
Issue Date, and interest rate (in each case, and for all purposes
of these administrative procedures, as defined in the Prospectus)
(as defined in Section 1(c) of the Distribution Agreement)
(collectively, the "Terms"). Each Global Security will be dated
and issued as of the date of its authentication by the Trustee.
No Global Security will represent any Certificated Note.
Identification Numbers:
----------------------
The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc. (the "CUSIP Service Bureau") for the reservation
of one series of CUSIP numbers (including tranche numbers), which
series consists of approximately 900 CUSIP numbers and relates to
Global Securities representing the Book-Entry Notes and
previously issued Medium-Term Notes of the Company. The Company
has obtained from the CUSIP Service Bureau a written list of such
series of reserved CUSIP numbers and has delivered to DTC and the
Trustee a written list of 900 CUSIP numbers of such series. The
Company will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". It is expected
that DTC will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Company has assigned to Global Securities.
At any time when fewer than 100 of the reserved CUSIP numbers of
the series remain unassigned to Global Securities, the Trustee
shall so advise the Company and, if it deems necessary, the
Company will reserve additional CUSIP numbers for assignment to
Global Securities representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company shall deliver a list
of such additional CUSIP numbers to the Trustee and DTC.
Registration:
------------
Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Security Register maintained
under the Indenture. It is expected that the beneficial owner of
a Book-Entry Note (or one or more indirect participants in DTC
designated by such owner) will designate one or more participants
in DTC (with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the book-entry
system maintained by DTC, and it is expected that DTC will record
in book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
beneficial owner in such Note in the account of such
Participants. The ownership interest of such beneficial owner in
such Note will be recorded through the records of such
Participants or through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers:
---------
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferees and transferors of such Note.
Consolidations:
--------------
Upon receipt of written instructions from the Company, U.S. Bank
Trust may deliver to DTC and the CUSIP Service Bureau at any time
a written notice of consolidation (a copy of which shall be
attached to the resulting Global Security) specifying (i) the
CUSIP numbers of two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a
new CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, it is expected that DTC
will send to its participants (including U.S. Bank Trust) a
written reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange date,
U.S. Bank Trust will deliver to the CUSIP Service Bureau a
written notice setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no longer
be valid. On the specified exchange date, U.S. Bank Trust will
exchange such Global Securities for a single Global Security
bearing the new CUSIP number, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be canceled and not reassigned until
the Book-Entry Notes represented by such exchanged Global
Securities have matured or been redeemed.
Maturities:
----------
Each Book-Entry Note will mature on a date not less than one year
nor more than 30 years after the date of settlement for such
Note.
Denominations:
-------------
Book-Entry Notes will be issued in principal amounts of $1,000 or
any amount in excess thereof that is an integral multiple of
$1,000. Global Securities will be denominated in principal
amounts not in excess of $85,000,000.
Interest:
--------
General. Interest on each Book-Entry Note will accrue from and
including the original issue date of, or the last date to which
interest has been paid on, the Global Security representing such
Note. Each payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest Payment Date or
the Maturity Date or, upon earlier redemption or repayment, the
date of such redemption or repayment (the "Redemption Date"), as
the case may be. Interest payable on the Maturity Date or the
Redemption Date of a Book-Entry Note will be payable to the
person to whom the principal of such Note is payable. Standard &
Poor's Rating Services, a division of The XxXxxx-Xxxx Companies,
Inc. will use the information received in the pending deposit
message described under Settlement Procedure "C" below in order
to include the amount of any interest payable and certain other
information regarding the related Global Security in the
appropriate weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The record date with respect to any Interest
Payment Date shall be the February 15 or August 15, as the case
may be (whether or not a Business Day) immediately preceding such
Interest Payment Date (each a "Regular Record Date").
Interest Payment Dates. Interest payments on Book-Entry Notes
will be made semi-annually on March 1 and September 1 of each
year and on the Maturity Date or the Redemption Date; provided,
however, that in the case of a Book-Entry Note issued between a
Regular Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Regular Record Date.
Payments of Principal and Interest:
----------------------------------
Payment of Interest Only. Promptly after each Regular Record
Date, the Paying Agent will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of interest
to be paid on each Global Security on the following Interest
Payment Date (other than an Interest Payment Date coinciding with
the Maturity Date) and the total of such amounts. It is expected
that DTC will confirm the amount payable on each Global Security
on such Interest Payment Date by reference to the appropriate
(daily or weekly) bond reports published by Standard & Poor's
Corporation. The Company will pay to the Paying Agent the total
amount of interest due on such Interest Payment Date (other than
on the Maturity Date), and the Paying Agent will pay such amount
to DTC at the times and in the manner set forth under "Manner of
Payment" below. If any Interest Payment Date for a Book-Entry
Note is not a Business Day, the payment due on such day shall be
made on the next succeeding Business Day, and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date.
Payments on Maturity Date, Etc. On or about the first Business
Day of each month, the Paying Agent will deliver to the Company
and DTC a written list of principal and, to the extent known at
such time, interest to be paid on each Global Security maturing
either on the Maturity Date or the Redemption Date in the
following month. The Company and DTC will confirm with the Paying
Agent the amounts of such principal and interest payments with
respect to each such Global Security on or about the fifth
Business Day preceding the Maturity Date or the Redemption Date,
as the case may be, of such Global Security. The Company will pay
to the Paying Agent the principal amount of such Global Security,
together with interest due on such Maturity Date or Redemption
Date in the manner set forth below under "Manner of Payment". The
Paying Agent will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment". If the Maturity
Date or the Redemption Date of a Global Security representing
Book-Entry Notes is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day, and no
interest shall accrue on such payment for the period from and
after such Maturity Date or the Redemption Date. Promptly after
payment to DTC of the principal and interest due at the Maturity
Date or the Redemption Date of such Global Security, the Paying
Agent will cancel such Global Security in accordance with the
terms of the Indenture.
Manner of Payment. The total amount of any principal and interest
due on Global Securities on any Interest Payment Date or on the
Maturity Date or the Redemption Date shall be paid by the Company
to the Paying Agent in immediately available funds for use by the
Paying Agent no later than 9:30 A.M. (New York City time) on such
date. The Company will make such payment on such Global
Securities by wire transfer to the Paying Agent or by the Paying
Agent's debiting the account of the Company maintained with the
Paying Agent. The Company will confirm such instructions in
writing to the Paying Agent. Prior to 10:00 A.M. (New York City
time) on each Maturity Date or Redemption Date or as soon as
reasonably possible thereafter, the Paying Agent will pay by
separate wire transfer (using Fedwire message entry instructions
in a form previously agreed to with DTC) to an account at the
Federal Reserve Bank of New York previously agreed to with DTC,
in funds available for immediate use by DTC, each payment of
principal (together with interest thereon) due on Global
Securities on any Maturity Date or Redemption Date. On each
Interest Payment Date, interest payments shall be made to DTC in
same day funds in accordance with existing arrangements between
the Paying Agent and DTC. Thereafter, on each such date, it is
expected that DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the
Book-Entry Notes represented by such Global Securities are
recorded in the book-entry system maintained by DTC. Neither the
Company nor the Paying Agent shall have any responsibility or
liability for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments and materials directly to the
beneficial owner of such Note.
Settlement:
----------
The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and issuance
of the Global Security representing such Note shall constitute
"settlement" with respect to such Note. All orders accepted by
the Company will be settled on the third Business Day following
the date of sale of a Book-Entry Note unless the Company, the
Trustee and the purchaser agree to settlement on another day that
shall be no earlier than the next Business Day.
Settlement Procedures:
---------------------
Settlement Procedures with regard to each Book-Entry Note sold by
the Company through an Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telephone, followed by
facsimile transmission, of the following settlement information:
1. Principal amount.
2. Maturity Date.
3. The interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any, or provisions for the repayment
or purchase by the Company at the option of the Holder, if any.
6. Settlement date.
7. Issue price.
8. Agent's commission, determined as provided in Section 2(a) of
the Distribution Agreement.
B. The Company will assign a CUSIP number to such Book-Entry Note
and will advise U.S. Bank Trust by facsimile transmission or
other mutually acceptable means of the information set forth in
Settlement Procedure "A" above, the name of such Agent and the
CUSIP number assigned to such Book-Entry Note. The Company will
notify the Agent of such CUSIP number by telephone as soon as
practicable. Each such communication by the Company shall
constitute a representation and warranty by the Company to U.S.
Bank Trust and each Agent that (i) such Note is then, and at the
time of issuance and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) the Global Security
representing such Note will conform with the terms of the
Indenture pursuant to which such Note and Global Security are
issued and (iii) upon authentication and delivery of such Global
Security, the aggregate principal amount of all Notes initially
offered issued under the Indenture will not exceed $85,000,000
(except for Global Securities or Notes represented by and
authenticated and delivered in exchange for or in lieu of Notes
in accordance with the Indenture).
C. U.S. Bank Trust will enter a pending deposit message through
DTC's Participant Terminal System, providing the following
settlement information to DTC, which shall route such information
to such Agent and Standard & Poor's Rating Services, a division
of The XxXxxx-Xxxx Companies, Inc.:
1. The information set forth in Settlement Procedure "A".
2. Identification of such Note as a fixed rate Book-Entry Note.
3. Initial Interest Payment Date for such Note, number of days by
which such date succeeds the related Regular Record Date (which
shall be the Regular Record Date as defined in the Note) and
amount of interest payable on such Interest Payment Date.
4. CUSIP number of the Global Security representing such Note.
5. Whether such Global Security will represent any other
Book-Entry Note (to the extent known at such time).
D. The Trustee will complete and authenticate the Global Security
representing such Note.
E. It is expected that DTC will credit such Note to U.S. Bank
Trust's participant account at DTC.
F. U.S. Bank Trust will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such
Note to U.S. Bank Trust's participant account and credit such
Note to such Agent's participant account and (ii) debit such
Agent's settlement account and credit U.S. Bank Trust's
settlement account for an amount equal to the price of such Note
less such Agent's commission. The entry of such a deliver order
shall constitute a representation and warranty by U.S. Bank Trust
to DTC that (a) the Global Security representing such Book-Entry
Note has been issued and authenticated and (b) U.S. Bank Trust is
holding such Global Security pursuant to the MTN Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit such
Note to such Agent's participant account and credit such Note to
the participant accounts of the Participants with respect to such
Note and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for
an amount equal to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in
accordance with SDFS operating procedures in effect on the
settlement date.
I. U.S. Bank Trust will, upon confirming receipt of such funds
from the Agent, wire transfer to the account of the Company
maintained at The Bank of Xxx Xxxx, Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (for credit to Central Xxxxxx Gas & Electric
Corporation, The Bank of New York - Special Acct. #2, ABA Routing
No.: 000000000 Account No. 8751004282) in immediately available
funds in the amount transferred to U.S. Bank Trust in accordance
with Settlement Procedure "F". Promptly upon completion of such
wire transfer, U.S. Bank Trust shall notify the Company thereof
by telephone (Attn. Cash Management Specialist, Tel. No.
000-000-0000, or such other person or telephone number, as the
Company shall request of U.S. Bank Trust).
J. Such Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants with respect
to such Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
Settlement Procedures Timetable:
-------------------------------
For orders of Book-Entry Notes solicited by an Agent, as agent,
and accepted by the Company for settlement on the first Business
Day after the sale date, Settlement Procedures "A" through "J"
set forth above shall be completed as soon as possible but not
later than the respective times (New York City time) set forth
below:
Settlement Procedure Time
-------------------- ------
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 5:00 P.M. on the sale date
D 3:00 P.M. on the sale date
E 8:05 A.M. on the settlement date
F-G 3:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day after the
sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M. and
12:00 Noon on the first Business Day after the sale date with
respect to Settlement Procedures "A" and "B", respectively, and
no later than 5:00 P.M. on the first Business Day after the sale
date, with respect to Settlement Procedure "C". Settlement
Procedure "D" shall occur no later than 3:00 P.M. on the last
Business Day prior to the settlement date. Settlement Procedures
"H" and "I" are subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or canceled,
the Company will instruct U.S. Bank Trust by no later than 12:00
Noon on the Business Day immediately preceding the scheduled
settlement date to deliver to DTC through DTC's Participant
Terminal System a cancellation message to such effect and U.S.
Bank Trust will enter such message, by no later than 2:00 P.M. on
such Business Day, through DTC's Participation Terminal System.
Monthly Reports:
---------------
Monthly, the Trustee will send to the Company a statement setting
forth the principal amount of Notes outstanding as of that date
under the Indenture and setting forth a brief description of any
sales of which the Company has advised the Trustee but which have
not yet been settled.
Failure to Settle:
-----------------
If U.S. Bank Trust or the Agent fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to Settlement
Procedure "F" or "G," U.S. Bank Trust may upon the approval of
the Company deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable, a withdrawal message instructing
DTC to debit such Note to U.S. Bank Trust's participant account,
provided that U.S. Bank Trust's participant account contains a
principal amount of the Global Security representing such Note
that is at least equal to the principal amount to be debited. If
a withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, U.S. Bank
Trust will xxxx such Global Security "canceled", make appropriate
entries in U.S. Bank Trust's records and send such canceled
Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not reassigned until the Book-Entry
Notes represented by such Global Security have matured or been
redeemed. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Notes represented by
a Global Security, U.S. Bank Trust will exchange such Global
Security for another Global Security, which shall represent the
Book-Entry Notes previously represented by the surrendered Global
Security with respect to which a withdrawal message has not been
processed and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect participant
in DTC, acting on behalf of such purchaser), such Participants
and, in turn, the Agent for such Note may enter SDFS deliver
orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "G" and "F",
respectively. Thereafter, U.S. Bank Trust will deliver the
withdrawal message and take the related actions described in the
preceding paragraph. If such failure shall have occurred for any
reason other than a default by the Agent in the performance of
its obligations hereunder or under the Distribution Agreement,
then the Company will reimburse such Agent or U.S. Bank Trust,
for the account of such Agent, as applicable, on an equitable
basis for the loss of the use of funds during the period when
they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect. In
the event of a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been represented by a
Global Security, the Trustee will provide, in accordance with
Settlement Procedure "D," for the authentication and issuance of
a Global Security representing the other Book-Entry Notes to have
been represented by such Global Security and will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
U.S. Bank Trust will serve as registrar in connection with the Certificated
Notes.
Maturities:
----------
Each Certificated Note will mature on a date not less than one
year and not more than 30 years after the date of delivery by the
Company of such Note.
Price to Public:
----------------
Each Certificated Note will be issued at the percentage of
principal amount specified in the Prospectus relating to the
Notes.
Denominations:
-------------
The denomination of any Certificated Note will be a minimum of
$1,000 or any amount in excess thereof which is an integral
multiple of $1,000.
Registration:
------------
Certificated Notes will be issued only in fully registered form.
Interest:
--------
General. Interest on each Certificated Note will accrue from and
including the original issue date of, or the last date to which
interest has been paid on, such Note. Each payment of interest on
a Certificated Note will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date or, upon
earlier redemption, the Redemption Date, as the case may be.
Interest payable on the Maturity Date or the Redemption Date of a
Certificated Note will be payable to the person to whom the
principal of such Note is payable.
Record Dates. Unless otherwise set forth in the applicable
Pricing Supplement, the record dates with respect to the Interest
Payment Dates shall be the Regular Record Dates.
Interest Payment Date. Unless otherwise specified pursuant to
"Settlement Procedures" below, interest payments on Certificated
Notes will be made semi-annually on March 1 and September 1 and
on the Maturity Date or the Redemption Date; provided, however,
that in the case of a Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the
next succeeding Regular Record Date.
Payments of Principal and Interest:
----------------------------------
Interest will be payable to the person in whose name a
Certificated Note is registered at the close of business on the
Regular Record Date next preceding an Interest Payment Date;
provided, however, that, in the case of a Certificated Note
originally issued between a Regular Record Date and an Interest
Payment Date, the first payment of interest will be made on the
Interest Payment Date following the next succeeding Regular
Record Date to the person in whose name such Note was registered
at the close of business on such next Regular Record Date. Unless
other arrangements are made acceptable to the Company, all
interest payments (excluding interest payments made on the
Maturity Date or the Redemption Date) on a Certificated Note will
be made by check mailed to the person entitled thereto as
provided above.
U.S. Bank Trust will pay the principal amount of each
Certificated Note on the Maturity Date upon presentation of such
Certificated Note to U.S. Bank Trust at the principal corporate
trust office of U.S. Bank Trust in New York, New York. Such
payment, together with payment of interest due on the Maturity
Date, will be made from funds deposited with U.S. Bank Trust by
the Company.
U.S. Bank Trust will be responsible for compliance with
withholding taxes on interest paid on Certificated Notes by it as
required by applicable federal law.
Within 10 days following each Regular Record Date, the Trustee
will inform the Company of the total amount of the interest
payments to be made by the Company on the next succeeding
Interest Payment Date. The Trustee will provide monthly to the
Company a list of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding month.
Settlement:
----------
The settlement date with respect to any offer to purchase
Certificated Notes accepted by the Company will be a date on or
before the third Business Day next succeeding the date of
acceptance unless otherwise agreed by the purchaser, the Trustee
and the Company and shall be specified upon acceptance of such
offer. The Company will instruct the Trustee to effect delivery
of each Certificated Note no later than 1:00 P.M. (New York City
time) on the settlement date to the Presenting Agent (as defined
under "Preparation of Pricing Supplement" in Part III below) for
delivery to the purchaser.
Settlement Procedures:
---------------------
For each offer to purchase a Certificated Note that is accepted
by the Company, the Presenting Agent will provide (unless
provided by the purchaser directly to the Company) by telephone
and facsimile transmission or other mutually acceptable means the
following information to the Company:
1. Name in which such Note is to be registered (the "Registered
Owner").
2. Address of the Registered Owner and, if different, address for
payment of principal and interest.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount.
5. Maturity Date.
6. The interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any, or provisions for the repayment
or repurchase by the Company at the option of the Holder, if any.
9. Settlement date.
10. Issue price.
11. Agent's commission, determined as provided in Section 2(a) of
the Distribution Agreement.
The Presenting Agent will advise the Company of the foregoing
information (unless provided by the purchaser directly to the
Company) for each offer to purchase a Certificated Note solicited
by such Agent and accepted by the Company in time for the Trustee
to prepare and authenticate the required Certificated Note.
Before accepting any offer to purchase a Certificated Note to be
settled in less than three Business Days, the Company shall
verify that the Trustee will have adequate time to prepare and
authenticate such Note. After receiving from the Presenting Agent
the details for each offer to purchase a Certificated Note that
has been accepted by the Company, the Company will, after
recording the details and any necessary calculations, provide
appropriate documentation to the Trustee, including the
information provided by the Presenting Agent necessary for the
preparation and authentication of such Note.
Note Deliveries and Cash Payment:
----------------------------------
Upon receipt of appropriate documentation and instructions, the
Company will cause the Trustee to prepare and authenticate the
pre-printed 4-ply Certificated Note packet containing the
following documents in forms approved by the Company, the
Presenting Agent and the Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on the settlement
date therefor. The Trustee will authenticate each Certificated
Note and deliver it (with the confirmation) to the Presenting
Agent (and deliver the stubs as indicated above), all in
accordance with written or electronic instructions (or oral
instructions confirmed in writing (which may be given by
facsimile transmission) on the next Business Day) from the
Company. Delivery by the Trustee of each Certificated Note will
be made in accordance with said instructions against receipts
therefor and in connection with contemporaneous receipt by the
Company from the Presenting Agent on the settlement date in
immediately available funds of an amount equal to the issue price
of such Note less the Presenting Agent's commission.
Upon verification ("Verification") by the Presenting Agent that a
Certificated Note has been prepared and properly authenticated by
the Trustee and registered in the name of the purchaser in the
proper principal amount and other terms in accordance with the
aforementioned confirmation, payment will be made to the Company
by the Presenting Agent the same day as the Presenting Agent's
receipt of the Certificated Note in immediately available funds.
Such payment shall be made by the Presenting Agent only upon
prior receipt by the Presenting Agent of immediately available
funds from or on behalf of the purchaser unless the Presenting
Agent decides, at its option, to advance its own funds for such
payment against subsequent receipt of funds from the purchaser.
Upon delivery of a Certificated Note to the Presenting Agent,
Verification by the Presenting Agent and the giving of
instructions for payment, the Presenting Agent shall promptly
deliver such Note to the purchaser.
In the event any Certificated Note is incorrectly prepared, the
Trustee shall promptly issue a replacement Certificated Note in
exchange for such incorrectly prepared Note.
Failure to Settle:
-----------------
If the Presenting Agent, at its own option, has advanced its own
funds for payment against subsequent receipt of funds from the
purchaser, and if the purchaser shall fail to make payment for
the Certificated Note on the settlement date therefor, the
Presenting Agent will promptly notify the Trustee and the Company
by telephone, promptly confirmed in writing (but no later than
the next Business Day). In such event, the Company shall promptly
provide the Trustee with appropriate documentation and
instructions consistent with these procedures for the return of
the Certificated Note to the Trustee and the Presenting Agent
will promptly return the Certificated Note to the Trustee. Upon
(i) confirmation from the Trustee in writing (which may be given
by facsimile transmission) that the Trustee has received the
Certificated Note and upon (ii) confirmation from the Presenting
Agent in writing (which may be given by facsimile transmission)
that the Presenting Agent has not received payment from the
purchaser (the matters referred to in clauses (i) and (ii) are
referred to hereinafter as the "Confirmations"), the Company will
promptly pay to the Presenting Agent an amount in immediately
available funds equal to the amount previously paid by the
Presenting Agent in respect of such Note. Assuming receipt of the
Certificated Note by the Trustee and of the Confirmations by the
Company, such payment will be made on the settlement date, if
reasonably practical, and in any event not later than the
Business Day following the date of receipt of the Certificated
Note and Confirmations. If a purchaser shall fail to make payment
for the Certificated Note for any reason other than the failure
of the Presenting Agent to provide the necessary information to
the Company as described above for settlement or to provide a
confirmation to the purchaser within a reasonable period of time
as described above or otherwise to satisfy its obligation
hereunder or in the Distribution Agreement, and if the Presenting
Agent shall have otherwise complied with its obligations
hereunder and in the Distribution Agreement, the Company will
reimburse the Presenting Agent on an equitable basis for its loss
of the use of funds during the period when they were credited to
the account of the Company.
Immediately upon receipt of the Certificated Note in respect of
which the failure occurred, the Trustee will void such Note, make
appropriate entries in its records and send such cancelled Note
to the Company; and upon such action, the Certificated Note will
be deemed not to have been issued, authenticated and delivered.
PART III: ADMINISTRATIVE PROCEDURES APPLICABLE TO BOTH
BOOK-ENTRY NOTES AND CERTIFICATED NOTES
Calculation of Interest:
-----------------------
Interest on Notes (including interest for partial periods) will
be calculated on the basis of a 360-day year of twelve thirty-day
months. (Examples of interest calculations are as follows: The
period from August 15, 1990 to February 15, 1991 equals 6 months
and 0 days, or 180 days; the interest payable equals 180/360
times the annual rate of interest times the principal amount of
the Note. The period from September 17, 1990 to February 15, 1991
equals 4 months and 28 days, or 148 days; the interest payable
equals 148/360 times the annual rate of interest times the
principal amount of the Note.)
Procedure for Rate Setting and Posting:
------------------------------------------
The Company and the Agents will discuss from time to time the
aggregate amount of, the issuance price of, and the interest
rates to be borne by, Notes that may be sold as a result of the
solicitation of offers by the Agents. If the Company decides to
set prices of, and rates borne by, any Notes in respect of which
the Agents are to solicit offers (the setting of such prices and
rates to be referred to herein as "posting") or if the Company
decides to change prices or rates previously posted by it, it
will promptly advise the Agents of the prices and rates to be
posted.
Acceptance of Offers:
---------------------
If the Company posts prices and rates as provided above, each
Agent as agent for and on behalf of the Company, shall promptly
accept offers received by such Agent to purchase Notes at the
prices and rates so posted, subject to (i) any instructions from
the Company received by such Agent concerning the aggregate
principal amount of such Notes to be sold at the prices and rates
so posted or the period during which such posted prices and rates
are to be in effect, (ii) any instructions from the Company
received by such Agent changing or revoking any posted prices and
rates, (iii) compliance with the securities laws of the United
States and all other jurisdictions and (iv) such Agent's right to
reject any such offer as provided below.
If the Company does not post prices and rates and an Agent
receives an offer to purchase Notes or, if while posted prices
and rates are in effect, an Agent receives an offer to purchase
Notes on terms other than those posted by the Company, such Agent
will promptly advise the Company of each such offer other than
offers rejected by such Agent as provided below. The Company will
have the sole right to accept any such offer to purchase Notes.
The Company may reject any such offer in whole or in part.
Each Agent may, in its discretion reasonably exercised, reject
any offer to purchase Notes received by it in whole or in part.
Preparation of Pricing Supplement:
---------------------------------
If any offer to purchase a Note is accepted by the Company, the
Company, with the approval of the Agent that presented such offer
(the "Presenting Agent"), will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of such Note and will
arrange to have a copy electronically filed with the Commission
in accordance with the applicable paragraph of Rule 424 under the
Act and the provision of Regulation S-T thereunder and will
supply at least 10 copies thereof (or additional copies if
requested) to the Presenting Agent. The Presenting Agent will
cause a Prospectus and Pricing Supplement to be delivered to the
purchaser of such Note.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Procedures for Rate Changes:
---------------------------
When the Company has determined to change the interest rates of
Notes being offered, it will promptly advise the Agents and the
Agents will forthwith suspend solicitation of offers. The Agents
will telephone the Company with recommendations as to the changed
interest rates. At such time as the Company has advised the
Agents of the new interest rates, the Agents may resume
solicitation of offers. Until such time only "indications of
interest" may be recorded.
Suspension of Solicitation; Amendment or Supplement of Prospectus:
-----------------------------------------------------------------
The Company may instruct the Agents to suspend at any time, for
any period of time or permanently, the solicitation of offers to
purchase Notes. Upon receipt of such instructions from the
Company, the Agents will forthwith suspend solicitation of offers
to purchase Notes from the Company until such time as the Company
has advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the Registration
Statement (as defined in Section 1(c) of the Distribution
Agreement) or the Prospectus (except for a supplement relating to
an offering of securities other than the Notes), it will promptly
advise the Agents and the Trustee and will furnish the Agents and
the Trustee with the proposed amendment or supplement in
accordance with the terms of, and its obligations under, the
Distribution Agreement. The Company will, consistent with such
obligations, promptly advise each Agent and the Trustee whether
orders outstanding at the time each Agent suspends solicitation
may be settled and whether copies of such Prospectus and
Prospectus Supplement as in effect at the time of the suspension,
together with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of such orders. The
Company will have the sole responsibility for such decision and
for any arrangements that may be made in the event that the
Company determines that such orders may not be settled or that
copies of such Prospectus, Prospectus Supplement and Pricing
Supplement may not be so delivered.
The Company will file with the Commission for filing therewith
any supplement to the Prospectus relating to the Notes, provide
the Agents with copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424.
Confirmation:
------------
For each offer to purchase a Note solicited by an Agent and
accepted by or on behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above and delivery
and payment instructions.
Trustee/Paying Agent Not to Risk Funds:
---------------------------------------
Nothing herein shall be deemed to require the Trustee or Paying
Agent to risk or expend its own funds in connection with any
payment to the Company, DTC, the Agents or the purchaser or a
holder, it being understood by all parties that payments made by
the Trustee/Paying Agent to the Company, DTC, the Agents or a
purchaser or holder shall be made only to the extent that funds
are provided to the Trustee/Paying Agent for such purpose.
Authenticity of Signatures:
--------------------------
The Company will cause the Trustee to furnish the Agents from
time to time with the specimen signatures of each of the
Trustee's officers, employees or agents who has been authorized
by the Trustee to authenticate Notes, but the Agents will have no
obligation or liability to the Company or the Trustee in respect
of the authenticity of the signature of any officer, employee or
agent of the Company or the Trustee on any such Note.
Payment of Expenses:
-------------------
Each Agent shall forward to the Company, on a monthly basis, a
statement of the reasonable out-of-pocket expenses incurred by
such Agent during that month which are reimbursable to it
pursuant to the terms of the Distribution Agreement. The Company
will remit payment to the Agents currently on a monthly basis.
Delivery of Prospectus:
----------------------
A copy of the Prospectus, Prospectus Supplement and Pricing
Supplement relating to a Note must accompany or precede the
earliest of any written offer of such Note, confirmation of the
purchase of such Note or payment for such Note by its purchaser.
If notice of a change in the terms of the Notes is received by an
Agent between the time an order for a Note is placed and the time
written confirmation thereof is sent by such Agent to a customer
or his agent, such confirmation shall be accompanied by a
Prospectus, Prospectus Supplement and Pricing Supplement setting
forth the terms in effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or Supplement of
Prospectus" above, each Agent will deliver a Prospectus,
Prospectus Supplement and Pricing Supplement as herein described
with respect to each Note sold by it.
EXHIBIT B
TERMS AGREEMENT
Central Xxxxxx Gas & Electric Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000-0000
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Distribution Agreement"), dated October 28, 2004 among Citigroup
Global Markets Inc., X.X. Xxxxxx Securities Inc., McDonald Investments Inc. and
Central Xxxxxx Gas & Electric Corporation (the "Company"), the undersigned
agrees to purchase the following principal amount of the Company's $85,000,000
Medium-Term Notes, Series E (the "Notes"):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Purchase Price: % of Principal Amount [plus accrued interest from
------------------------, 200--
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in the requirements
to deliver the documents specified in
Section 6(b) of the Distribution Agreement:
Period during which additional Notes
may not be sold pursuant to Section 4(m) of
the Distribution Agreement:
Book-Entry Notes or Certificated Notes:
This Agreement shall be governed by and construed in accordance with
the laws of New York.
[Insert name of Purchaser[s]]
By
-------------------------------------
Title:
Accepted:
----------------, ------
CENTRAL XXXXXX GAS & ELECTRIC
CORPORATION
By
--------------------------------------------
Title: