EXHIBIT 1
$000,000,000
CINERGY CORP.
% DEBENTURES DUE 20__
UNDERWRITING AGREEMENT
DATED: SEPTEMBER ___, 2001
September __, 2001
[Name of Managing Underwriter]
[Address]
Dear Sirs:
Cinergy Corp., a Delaware corporation (hereinafter called the "Company"),
proposes to issue and sell $000,000,000 principal amount of ______% Debentures
due 20__ (hereinafter called the "Debentures"), to be issued pursuant to the
provisions of an Indenture dated as of September __, 2001 (hereinafter called
the "Indenture") between the Company and Fifth Third Bank, as Trustee
(hereinafter called the "Trustee"), as supplemented by the _________
Supplemental Indenture dated as of _________, 2001 between the Company and the
Trustee (hereinafter called the "Supplemental Indenture").
The Company has filed with the Securities and Exchange Commission
(hereinafter called the "Commission") a registration statement (File No.
333-65930) including a prospectus relating to debt securities of the Company,
including the Debentures, and has filed with the Commission (or will promptly
after the sale so file) a prospectus supplement specifically relating to the
Debentures pursuant to Rule 424 under the Securities Act of 1933. The term
Registration Statement means the registration statement as amended to the date
of this Agreement. The term Basic Prospectus means the prospectus included in
the Registration Statement. The term Prospectus means the Basic Prospectus
together with the prospectus supplement specifically relating to the Debentures,
as filed with the Commission pursuant to Rule 424. The term preliminary
prospectus means a preliminary prospectus supplement specifically relating to
the Debentures together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any, incorporated by
reference therein.
I.
The Company hereby agrees to sell to each of the undersigned Underwriters,
and the Underwriters, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agree to
purchase from the Company, each severally and not jointly, the principal amount
of Debentures set forth opposite their names at a price of ____% of their
principal amount - the purchase price - and accrued interest from ________, to
the date of payment and delivery:
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NAME PRINCIPAL AMOUNT
[Name of Managing Underwriter] [$]_______________
[Other Underwriters] [$]_______________
Total [$]_______________
II.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Debentures as soon after the
execution of this Agreement as in your judgment is advisable. The Company is
further advised by you that the Debentures are to be offered to the public at
_____% of their principal amount - the public offering price - and accrued
interest, and to certain dealers at a price which represents a concession of
____% of their principal amount under the public offering price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of ____% of their principal amount, to certain other dealers.
III.
Payment for the Debentures shall be made by transfer of immediately
available funds to an account identified by us in writing not less than two full
business days prior to the date of payment, against delivery to you for the
respective accounts of the several Underwriters of the Debentures through The
Depositary Trust Company at 10:00 A.M.,
New York time, on ______________, [2001]
or at such other time on the same or such other date, not later than
_____________, [2001], as may be designated by you. The time and date of such
payment and delivery are herein referred to as the Closing Date. All other
documents referred to herein that are to be delivered at the Closing Date shall
be delivered at that time at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000.
IV.
The obligations of the Company and the several obligations of the
Underwriters hereunder are subject to the conditions that:
(a) The Registration Statement shall have become effective under the
Securities Act of 1933.
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(b) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall
be pending before, or threatened by, the Commission.
(c) An appropriate order of the Commission under the Public Utility
Holding Company Act of 1935, as amended (together with rules and
regulations thereunder, the "PUHCA") is in effect, no proceedings to
suspend the effectiveness of such order shall be pending or
threatened, and no further approval, authorization or consent or order
of any other commission or other governmental authority (other than
under state securities or Blue Sky laws) is required for the issuance
and sale of the Debentures.
The several obligations of the Underwriters hereunder are subject to the
following further conditions:
(d) There shall have been no material adverse change (not in the ordinary
course of business) in the condition of the Company and its
subsidiaries, taken as a whole, from that set forth in or contemplated
by the Registration Statement and the Prospectus; and you shall have
received on the Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing
effect.
(e) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have occurred any downgrading of,
nor shall any notice have been given of any review with a negative
implication with respect to, the rating accorded any of the Company's
securities by any of Standard & Poor's Ratings Service, Xxxxx'x
Investors Service, Inc. or Fitch IBCA (or any of their successors).
(f) You shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the
effect set forth in (b) and (c) of the first paragraph of this Article
IV. The officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened.
(g) You shall have received on the Closing Date the favorable opinion of
Xxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State
of Delaware and has due corporate authority to carry on the
businesses in which it is engaged and to own and operate
the properties in use in such businesses;
(ii) each of The Cincinnati Gas & Electric Company and PSI
Energy, Inc., each a wholly-owned subsidiary of the Company,
is a corporation duly incorporated and existing in good
standing under the laws of its state of incorporation and
has due corporate authority to carry on the businesses in
which it is engaged and to own and operate the properties in
use in such businesses;
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(iii) the Company and its subsidiaries listed in (ii) above are
each duly qualified to transact business and are in good
standing in the jurisdictions in which the conduct of their
respective businesses or the ownership or leasing of their
respective properties requires such qualification;
(iv) each of the Indenture and the Supplemental Indenture has
been duly authorized, executed and delivered by the Company
and is a valid and binding instrument enforceable in
accordance with its terms, except as (A) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights
generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability; and the
Indenture has been duly qualified under the Trust Indenture
Act of 1939;
(v) the Debentures, when duly executed by the Company,
authenticated by the Trustee and delivered to and paid for
by the Underwriters pursuant to this Agreement, will be
valid and binding obligations of the Company in accordance
with their terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and
(B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability;
(vi) the execution and delivery of this Agreement, the issuance
of the Debentures in accordance with the Indenture and the
Supplemental Indenture, and the sale of the Debentures in
accordance with this Agreement do not and will not result in
any violation by the Company of any terms or provisions of
its articles of incorporation or by-laws or of any
indenture, mortgage or other agreement or instrument known
to such counsel by which the Company is bound;
(vii) an appropriate order of the Commission under PUHCA is in
effect on the Closing Date and no further approval,
authorization, consent or order of any other commission or
other governmental authority (other than under state
securities or Blue Sky laws, as to which such counsel are
not called upon to express an opinion) is required for the
issuance and sale of the Debentures;
(viii) such counsel does not know of any contract required to be
filed as an exhibit to the Registration Statement, or
incorporated therein by reference, which has not been so
filed or incorporated by reference;
(ix) the statements made in the Prospectus under the captions
"Description of Debt Securities" and "Certain Terms of the
Debentures," in each case insofar as such statements
constitute summaries of the matters referred to therein,
fairly present the information called for with respect such
matters
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and fairly summarize the matters referred to therein; and
the provisions of the Indenture, the Supplemental Indenture
and the Debentures conform in all material respects as to
legal matters to the description thereof and to the
statements in regard thereto contained in the Registration
Statement and the Prospectus;
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) such counsel (A) is of the opinion that each document
incorporated by reference in the Prospectus (except for the
financial statements and schedules and other financial and
statistical data therein as to which such counsel need not
express an opinion) complied when filed with the Commission
as to form in all material respects with the requirements of
the Securities Exchange Act of 1934, together with the
applicable rules and regulations of the Commission
thereunder, (B) is of the opinion that the Registration
Statement and the Prospectus and any supplements or
amendments thereto (except for the financial statements and
schedules and other financial and statistical data therein
as to which such counsel need not express an opinion) comply
as to form in all material respects with the requirements of
the Securities Act of 1933 and the rules and regulations of
the Commission thereunder and (C) has no reason to believe
that (except for the financial statements and schedules and
other financial and statistical data therein as to which
such counsel need not express a belief) the Registration
Statement and the Prospectus at the date of this Agreement
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 and
the Prospectus (as amended or supplemented if applicable) on
the Closing Date contained an untrue statement of a material
fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In regard to clause (x) above, such counsel may state that no opinion is
expressed with respect to the effect of
New York law. The opinion in clause
(iii) above may be given by internal counsel for the Company satisfactory to the
Underwriters. In regard to clause (xi) above, counsel for the Company may state
that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any supplements
and amendments thereto and upon their review and discussion of the contents
thereof, but is without independent check or verification except as specified.
(h) You shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the Closing Date,
covering the matters in (iv), (v), and clauses (B) and(C) of (xi) of
(g) above, provided that with respect to clauses (B) and (C) of (xi)
of (g) above, such counsel may state that their opinion and belief is
based upon their participation in the preparation of the Registration
Statement and the
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Prospectus and any amendments and supplements thereto (other than
documents incorporated by reference), and upon their review and
discussion of the contents thereof (including documents incorporated
by reference), but is without independent check or verification except
as specified.
(i) You shall have received on the Closing Date a letter, dated the
Closing Date, in form and substance satisfactory to you, from Xxxxxx
Xxxxxxxx LLP, independent accountants, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
V.
In further consideration of the agreements of the Underwriters herein
contained the Company covenants as follows:
(a) To furnish without charge to you two signed copies of the
Registration Statement (including exhibits and documents
incorporated by reference), and to each other Underwriter a copy
of the Registration Statement (without exhibits but including
documents incorporated by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the
Prospectus and any amendments and supplements thereto as you may
reasonably request. The terms "supplement" and "amendment" or
"amend" as used in this Agreement shall include or refer to all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934 which are deemed
to be incorporated by reference in the Prospectus from the date
of filing such documents in accordance with Form S-3.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to each of you a copy of each such
proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Debentures as in the opinion of your counsel a
prospectus covering the Debentures is required by law to be
delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Debentures
may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of
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the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply
with law.
(d) To endeavor to qualify the Debentures for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such
qualification and in connection with the determination of the
eligibility of the Debentures for investment under the laws of
such jurisdictions as you may designate.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the
twelve-month period beginning after the date of this Agreement,
which shall satisfy the provisions of Section 11(a) of the
Securities Act of 1933 (including Rule 158 thereunder).
(f) During the period beginning on the date of this Agreement and
terminating on the Closing Date not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company
substantially similar to the Debentures, without your prior
written consent.
VI.
The Company represents and warrants to each Underwriter that (i) each
prospectus and prospectus supplement filed as part of the registration statement
as originally filed or as part of any amendment thereto or filed pursuant to
Rule 424 under the Securities Act of 1933, complied when so filed in all
material respects with the requirements of the Securities Act of 1933 and the
applicable rules and regulations thereunder, (ii) each document incorporated by
reference in the Prospectus complied when filed (and each document subsequently
filed by the Company pursuant to the Securities Exchange Act of 1934 and deemed
incorporated by reference into the Prospectus will, at the time of filing,
comply) in all material respects with the provisions of the Securities Exchange
Act of 1934, together with the applicable rules and regulations of the
Commission thereunder, and (iii) the Registration Statement and Prospectus, as
amended or supplemented, will comply in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; except that these representations and warranties do not
apply to statements or omissions in the Registration Statement or the
Prospectus, or any preliminary prospectus based upon information furnished to
the Company in writing by any Underwriter expressly for use therein.
The Company further represents and warrants to each Underwriter that (i)
the execution and delivery by the Company of this Agreement, the issuance of the
Debentures in accordance with the Indenture and the Supplemental Indenture, the
sale of the Debentures in accordance with this Agreement, and the performance by
the Company of its obligations under this Agreement and the consummation of the
transactions contemplated herein will not result in any
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violation by the Company of applicable law or any terms or provisions of its
articles of incorporation or by-laws or any indenture, mortgage or other
agreement or instrument by which the Company or any of its subsidiaries is bound
that is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and (ii) the consolidated
historical financial statements of the Company, together with related schedules
included in the Prospectus, present fairly in all material respects the
consolidated financial position of the Company and its subsidiaries at the
respective dates indicated and the results of their operations and their cash
flows for the respective periods indicated in accordance with generally accepted
accounting principles consistently applied throughout such periods.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934,
from and against any and all losses, claims, damages and liabilities (including
the fees and expenses of counsel in connection with any governmental or
regulatory investigation or proceeding) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus (if used within the period set forth in paragraph (c) of
Article V hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by any
Underwriter expressly for use therein.
In case any action shall be brought against any Underwriter or any person
controlling such Underwriter, based upon the Registration Statement or
Prospectus or any amendment or supplement thereto or any preliminary prospectus
and in respect of which indemnity may be sought against the Company, such
Underwriter shall promptly notify the Company in writing, and the Company, upon
the request of such Underwriter, shall assume the defense thereof on behalf of
such Underwriter or controlling person, including the employment of counsel and
payment of all expenses. In any such action, any Underwriter or any such
controlling person shall have the right to employ its own counsel but the fees
and expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company or (ii) the named parties to
any such action (including any impleaded parties) include both such Underwriter
or such controlling person and the Company and such Underwriter or such
controlling person shall have been advised by such counsel that there maybe one
or more legal defenses available to it which are different from or additional to
those available to the Company (it being understood, however, that the Company
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to one firm of
local counsel) for all such Underwriters and controlling persons, which firm
shall be designated in writing by you, and that such fees and expenses shall be
reimbursed as they are incurred). The Company shall not be liable for
indemnification (or contribution as provided below) with respect to the
settlement of any such action effected
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without its written consent, but if settled with the written consent of the
Company or if there be a final judgment for the plaintiff in any such action,
the Company agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement or judgment (or to make contribution as provided below).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus. In case any action shall be brought against the
Company, any of its directors or any such officer or controlling person based on
the Registration Statement, the Prospectus or any preliminary prospectus and in
respect of which indemnity may be sought against any Underwriter, the
Underwriter shall have the rights and duties given to the Company, and the
Company, its directors or any such officer or controlling person shall have the
rights and duties given to the Underwriter, by the preceding paragraph of this
Article VI.
If the indemnification provided for in the third paragraph of this Article
VI is unavailable to any Underwriter or other indemnified party in respect of
any losses, claims, damages or liabilities referred to therein, then the
Company, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and such Underwriter on the other from the offering of the Debentures or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of such Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
If the indemnification provided for in this Article VI is sought solely by
the Company under the fifth paragraph hereof and there is no claim for
indemnification by any Underwriter or any person controlling such Underwriter
arising out of the same misstatement or omission and if such indemnification is
unavailable to the Company in respect of any losses, claims, damages or
liabilities referred to in such fifth paragraph, then each Underwriter, in lieu
of indemnifying the Company, shall contribute to the amount paid or payable by
the Company as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative
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fault of the Company on the one hand and of such Underwriter or Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of such
Underwriter or Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the two immediately preceding
paragraphs. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in such paragraphs shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Article VI, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Debentures underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act of 1933) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several in proportion to their respective principal amounts of
Debentures underwritten (as set forth in Article I) and not joint.
The indemnity and contribution agreements contained in this Article VI and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Debentures.
VII.
This Agreement shall be subject to termination in your absolute discretion,
by notice given to the Company, if (a) prior to the Closing Date (i) trading in
securities on the
New York Stock Exchange or the American Stock Exchange shall
have been suspended or materially limited, (ii) trading in any securities of the
Company shall have been suspended on any national securities exchange in the
United States or in any over-the-counter market in the United States, (iii) a
general moratorium on banking activities in
New York shall have been declared by
Federal or
New York State authorities or (iv) there shall have occurred any
outbreak or escalation of
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hostilities or any change in the financial markets or other calamity or crisis,
any of which is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event either singly or together
makes it, in your reasonable judgment, impracticable to market the Debentures.
Any termination of this Agreement pursuant to this Article VII shall be without
liability on the part of the Company to the Underwriters, or the Underwriters to
the Company.
VIII.
This Agreement shall become effective upon signature.
If any one or more of the Underwriters shall fail or refuse to purchase
Debentures which it or they have agreed to purchase hereunder, and the aggregate
principal amount of Debentures which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Debentures, the other Underwriters shall be
obligated severally in the proportions which the principal amount of Debentures
set forth opposite their names in Article I bears to the aggregate principal
amount of Debentures so set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Debentures which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase; provided that in no event shall the principal amount of
Debentures which any Underwriter has agreed to purchase pursuant to Article I
hereof be increased pursuant to this Article VIII by an amount in excess of
one-ninth of such principal amount of Debentures without the written consent of
such Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase Debentures and the aggregate principal amount of Debentures with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Debentures and arrangements satisfactory to you and the
Company for the purchase of such Debentures are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or of the Company. In any such case which does not
result in such a termination, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement or if for any reason
the Company shall be unable to perform its obligations under this Agreement, the
Company will reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of
New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Very truly yours,
CINERGY CORP.
By: _______________________________
Accepted as of the date above written:
[Name of Managing Underwriter]
on behalf of the Underwriters
named in Article I hereof
By: _______________________________
[title]
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