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EXHIBIT 1
4,000,000 Preferred Securities
ILLINOIS POWER FINANCING I
(a Delaware Trust)
____% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount of $25 Per Preferred Security) SM
UNDERWRITING AGREEMENT
______, 1995
XXXXXXX XXXXX & CO.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
as Representative of the several Underwriters
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Illinois Power Financing I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Section
Section 3801 et seq.), and Illinois Power Company, an Illinois corporation
(the "Company" and, together with the Trust, the "Offerors") confirm their
agreement (the "Agreement") with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters",
which term shall also include any underwriter substituted as hereinafter
provided in Section 9 hereof), for whom Xxxxxxx Xxxxx is acting as
representative (in such capacity, Xxxxxxx Xxxxx shall
____________________
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Xxxxxxx Xxxxx & Co., Inc.
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hereinafter be referred to as the "Representative"), with respect to the sale
by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of ____% Trust Originated Preferred
Securities (liquidation amount of $25 per preferred security) of the Trust
("Preferred Securities") set forth in said Schedule A except as may otherwise
be provided in the Pricing Agreement, as hereinafter defined. The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of ______, 1995, between
the Company and Wilmington Trust Company, as trustee (the "Guarantee Trustee"),
and in certain circumstances described in the Indenture (as defined herein),
the Trust may distribute Subordinated Debt Securities (as defined herein) to
holders of the Preferred Securities. The Preferred Securities, the related
Preferred Securities Guarantee and $100,000,000 in aggregate principal amount
of the Subordinated Debt Securities are referred to herein as the "Securities".
Prior to the purchase and public offering of the Preferred Securities
by the several Underwriters, the Offerors and the Representative, acting on
behalf of the several Underwriters, shall enter into an agreement substantially
in the form of Exhibit A hereto (the "Pricing Agreement"). The Pricing
Agreement may take the form of an exchange of any standard form of written
telecommunication between the Offerors and the Representative and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering
of the Preferred Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33- 63581 and
33-63581-01) and a related preliminary prospectus for the registration under
the Securities Act of 1933, as amended (the "1933 Act") of $100,000,000 in
aggregate amount of a combination of (i) the Preferred Securities, (ii) the
Preferred Securities Guarantee, and (iii) the Subordinated Debt Securities (as
defined below) to be issued and sold to the Trust by the Company. The Offerors
have filed such amendments thereto, if any, and such amended preliminary
prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may hereafter be
required. Such registration statement (as amended, if applicable) and the
prospectus constituting a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act and the information, if any, deemed to be
part thereof pursuant to Rule 430A(b) of the rules and regulations of the
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Commission under the 1933 Act (the "1933 Act Regulations")), as from time to
time amended or supplemented pursuant to the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), or otherwise, are hereinafter
referred to as the "Registration Statement" and the "Prospectus", respectively,
except that, if any revised prospectus shall be provided to the Underwriters by
the Offerors for use in connection with the offering of the Preferred
Securities which differs from the Prospectus on file at the Commission at the
time the Registration Statement becomes effective (whether or not such revised
prospectus is required to be filed by the Offerors pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Underwriters for
such use. All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include
the filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
The Offerors understand that the Underwriters propose to make a
public offering of the Securities as soon as the Representative deems advisable
after the Pricing Agreement has been executed and delivered, and the
Declaration (as defined herein), the Indenture, and the Preferred Securities
Guarantee Agreement have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). The entire proceeds from the sale of the
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities"), as
guaranteed by the Company, to the extent set forth in the Prospectus, with
respect to distributions and payments upon liquidation and redemption (the
"Common Securities Guarantee" and together with the Preferred Securities
Guarantee, the "Guarantees") pursuant to the Common Securities Guarantee
Agreement (the "Common Securities Guarantee Agreement" and, together with the
Preferred Securities Guarantee Agreement, the "Guarantee Agreements"), dated as
of ______, 1995, of the Company, and will be used by the Trust to purchase the
$103,100,000 of ____% subordinated debt securities (the "Subordinated Debt
Securities") issued by the Company. The Preferred Securities and the Common
Securities will be issued pursuant to the amended and restated declaration of
trust of the Trust, dated as of the Closing Time (the "Declaration"), among the
Company, as Sponsor, Xxxxx X. Xxxxxxxxxxx and Xxxxxx X. Xxxxxxxx (the "Regular
Trustees") and Wilmington Trust Company,
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a Delaware banking corporation, as property trustee (the "Property Trustee and,
together with the Regular Trustees, the "Trustees"). The Subordinated Debt
Securities will be issued pursuant to an indenture, dated as of ________ __,
1995 (the "Base Indenture"), between the Company and Wilmington Trust Company,
as Trustee (the "Debt Trustee"), and a supplement to the Base Indenture, dated
as of ________ __, 1995 (the "Supplemental Indenture," and together with the
Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Debt Trustee.
Section I. Representations and Warranties.
The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the date of the Pricing Agreement
(such latter date being hereinafter referred to as the "Representation Date")
as follows.
(i) The Company and the Trust meet, and at the respective times
of commencement and consummation of the offering of the Securities will
meet, the requirements for use of Form S-3 under the 1933 Act and the 1933
Act Regulations, and the Registration Statement has been filed with the
Commission under the 1933 Act; such Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to you, and to you for each of the other Underwriters
(except that copies of the Registration Statement and any post-effective
amendment delivered to you for each of the other Underwriters need not
include exhibits but shall include all documents incorporated by reference
therein), have been declared effective by the Commission in such form; no
other document included or incorporated by reference in the Registration
Statement has heretofore been filed, or transmitted for filing, with the
Commission; and no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission.
(ii) The documents incorporated by reference in the
Registration Statement or Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the 1933 Act or the 1934 Act, as
applicable, and the 1933 Act Regulations and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations") and as of
such time none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
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further documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
1933 Act or the 1934 Act, as applicable, and the 1933 Act Regulations and
the 1934 Act Regulations and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Trust or the Company by an
Underwriter through you expressly for use in the Prospectus.
(iii) Each preliminary prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Trust or the Company by an
Underwriter through you expressly for use therein.
(iv) The Registration Statement and the Prospectus conform,
and, to the extent used to confirm sales of the Securities, any further
amendments or supplements to the Registration Statement or the Prospectus,
when any such post-effective amendments are declared effective or
supplements are filed with the Commission, as the case may be, will
conform, in all material respects to the requirements of the 1933 Act, the
1939 Act and the rules and regulations of the Commission thereunder (the
"1939 Act Regulations") and do not and will not, (i) as of the applicable
effective date as to the Registration Statement and any amendment thereto
and (ii) as of the applicable filing date as to the Prospectus, as it may
be further amended or supplemented, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that neither the Company nor
the Trust makes any representations and warranties as to (A) that part of
the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act (the "Form T-1"), or
(B) the information contained in or omitted from the Registration
Statement or the
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Prospectus in reliance upon and in conformity with information furnished
in writing to the Trust or the Company by an Underwriter through you
expressly for use therein.
(v) The Trust has no subsidiaries. Neither the Trust, the
Company nor any of the Company's other subsidiaries has sustained, since
the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries (determined on a
consolidated basis) 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 subsidiaries (taken as a
whole), otherwise than as set forth or contemplated in the Prospectus.
(vi) The Order of the Illinois Commerce Commission (the
"ICC") approving the investment by the Company in the Common Securities in
connection with the issue and sale of the Preferred Securities, the
issuance of the Subordinated Debt Securities and the execution of the
Guarantees (the "Order") has been duly issued and remains in full force
and effect without amendment or modification, and is not the subject of
any appeal or other proceeding.
(vii) The Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State
of Delaware, with power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly qualified
for the transaction of business and is in good standing under the laws of
each jurisdiction in which it owns or leases properties or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction. The Trust is and will be classified
for United States federal income tax purposes as a grantor trust and not
as an association taxable as a corporation.
(viii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois, with power and authority (corporate and other) to own its
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properties and conduct its business as described in the Prospectus and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company (other than the Trust and
Illinois Power Capital, L.P.) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
(ix) The Company has no significant subsidiaries within the
meaning of Regulation S-X. All of the outstanding shares of common stock
of the Company are owned by Illinova Corporation, an Illinois corporation
(the "Parent").
(x) The Preferred Securities have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, in the Pricing Agreement and in the Declaration, will be
duly and validly issued and fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and will conform as to
legal matters to the description thereof contained in the Prospectus.
(xi) The issuance and delivery of the Subordinated Debt
Securities have been duly authorized and, when issued and delivered and
when the Subordinated Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with this Agreement and
the Pricing Agreement, the Indenture and the Subordinated Debt Securities
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Indenture will have been duly authorized,
executed and delivered and, at Closing Time (as defined below), the
Indenture will be duly qualified under the 1939 Act and will constitute a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Subordinated Debt Securities and the Indenture will
conform as to legal matters to the descriptions thereof in the Prospectus;
and the Indenture will be substantially in the form filed as an exhibit to
the Registration Statement.
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(xii) The Declaration has been duly authorized by the
Company and at Closing Time, will have been duly executed and delivered by
the Company and the Trustees, and assuming due authorization, execution
and delivery by the Property Trustee (as defined in the Declaration), the
Declaration will, at Closing Time, be a valid and binding obligation of
the Company and the Regular Trustees, enforceable against the Company and
the Regular Trustees in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and at Closing Time, the Declaration will have
been duly qualified under the 1939 Act.
(xiii) Each of the Guarantee Agreements has been duly
authorized by the Company and, when executed and delivered by the Company,
and in the case of the Preferred Securities Guarantee Agreement, assuming
due authorization, execution and delivery of the Preferred Securities
Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; each of the Guarantees and the
Guarantee Agreements will conform as to legal matters to the description
thereof in the Prospectus; and the Preferred Securities Agreement, at
Closing Time, will have been duly qualified under the 1939 Act.
(xiv) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and fully paid and, except as otherwise
provided in Section 10.1(b) of the Declaration, nonassessable undivided
beneficial interests in the assets of the Trust and will conform as to
legal matters to the descriptions thereof in the Prospectus. The issuance
of the Common Securities is not subject to preemptive or other similar
rights; and at Closing Time all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(xv) Each of the Regular Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration.
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(xvi) The Trust is not in violation of its Certificate of
Trust or the Declaration, or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained in
any contract, agreement or other instrument to which it is a party or by
which it may be bound, the effect of which is material to the Trust, and
neither the execution or delivery of this Agreement or the Pricing
Agreement, the consummation of the transactions herein contemplated, the
fulfillment of the terms hereof or the terms of the Pricing Agreement, nor
compliance with the terms and provisions hereof or of the Pricing
Agreement will conflict with, or result in a breach or violation of, or
constitute a default under (i) its Certificate of Trust or the
Declaration, or any contract, agreement or other instrument to which the
Trust is a party or by which it may be bound or (ii) any statute, order,
rule or regulation applicable to the Trust of any court or any federal or
state governmental agency or body having jurisdiction over the Trust or
over any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required solely as a result of the issuance
and sale or delivery by the Trust of the Preferred Securities pursuant to
this Agreement or the Pricing Agreement, the execution, delivery and
performance by the Trust of this Agreement or the Pricing Agreement, or
the consummation of the transactions contemplated in this Agreement or the
Pricing Agreement, except as set forth in Section l(vi) above and except
for the registration under the 1933 Act of the Securities, the
qualification of the Declaration, the Indenture and the Preferred
Securities Guarantee Agreement under the 1939 Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase of the Preferred Securities and the distribution of the
Securities by the Underwriters.
(xvii) The Company is not in violation of its Amended and
Restated Articles of Incorporation, as amended (the "Restated Articles"),
or its By-Laws, as amended (the "By-Laws"), or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, agreement or other instrument to
which it is a party or by which it may be bound, the effect of which is
material to the Company, and neither the execution or delivery of this
Agreement or of the Pricing Agreement, the consummation of the
transactions herein contemplated or in the Pricing Agreement, the
fulfillment of the terms hereof or of the Pricing Agreement, nor
compliance with the terms and provisions hereof or the terms and
provisions of the Pricing Agreement will conflict with, or result in a
breach or violation of, or constitute a default under (i) the Restated
Articles, the By-Laws, or any contract, agreement or other instrument to
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which the Company is a party or by which it may be bound or (ii) any
statute, order, rule or regulation applicable to the Company of any court
or any federal or state governmental agency or body having jurisdiction
over the Company or over its properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issuance and
sale or delivery of the Preferred Securities or the consummation by the
Company of the transactions contemplated by this Agreement or by the
Pricing Agreement, except as set forth in Section l(vi) above and except
for the registration under the 1933 Act of the Securities, the
qualification of the Declaration, the Indenture and the Preferred
Securities Guarantee Agreement under the 1939 Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase of the Preferred Securities and the distribution of the
Securities by the Underwriters.
(xviii) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(xix) Price Waterhouse LLP, who have audited certain
financial statements of the Company and its other subsidiaries, are
independent certified public accountants with respect to the Company as
required by the 1933 Act and the 1933 Act Regulations.
(xx) There are no contracts or documents of the Trust or
the Company or any of the Company's subsidiaries that are required to be
filed as exhibits to the Registration Statement or to any of the documents
incorporated by reference therein by the 1933 Act, the 1933 Act
Regulations, the 1939 Act, the 1939 Act Regulations, the 1934 Act or the
1934 Act Regulations that have not been so filed.
(xxi) There are no contracts, agreements or understandings
between the Trust or the Company and any person granting such person the
right to require the Trust or the Company to file a registration statement
under the 1933 Act with respect to any undivided beneficial
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interest of the Trust or any preferred stock of the Company owned or to be
owned by such person or to require the Trust or the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Trust or the Company under the 1933
Act.
(xxii) Neither the Trust nor the Company nor any of the
Company's other subsidiaries is and, after giving effect to the offering
and sale of the Preferred Securities, will be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xxiii) The Trust is not a "holding company" within the
meaning of the Public Utility Holding Company Act of 1935, as amended
("1935 Act"); the Parent is a "holding company" as defined in 1935 Act by
reason of its ownership of all the outstanding shares of common stock of
the Company, and the Company is a "holding company," but the Company and
Parent are each exempt from 1935 Act, except for the provisions of Section
9(a)(2) thereof, by virtue of Section 3(a)(2) thereof and Section 3(a)(1)
thereof and Rule 2 thereunder, respectively.
Section 2. Sale and Delivery to Under-
writers; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Trust, at the price per security set forth in the Pricing Agreement, the
number of Preferred Securities set forth in Schedule A opposite the name
of such Underwriter (except as otherwise provided in the Pricing
Agreement), plus any additional number of Preferred Securities that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof.
The purchase price per security to be paid by the several
Underwriters for the Preferred Securities shall be an amount equal to the
initial public offering price. The initial public offering price per
Preferred Security shall be a fixed price to be determined by agreement
between the Representative and the Offerors. The initial public offering
price and the purchase price, when so determined, shall be set forth in
the Pricing Agreement. In the event that such prices have not been agreed
upon and
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the Pricing Agreement has not been executed and delivered by all parties
thereto by the close of business on the fourth business day following the
date of this Agreement, this Agreement shall terminate forthwith, without
liability of any party to any other party, unless otherwise agreed to by
the Offerors and the Representative. As compensation to the Underwriters
for their commitments hereunder and in view of the fact that the proceeds
of the sale of the Preferred Securities will be used to purchase the
Subordinated Debt Securities of the Company, the Company hereby agrees to
pay at Closing Time to the Representative, for the accounts of the several
Underwriters, a commission per Preferred Security determined by agreement
between the Representative and the Company for the Preferred Securities to
be delivered by the Trust hereunder at Closing Time. The commission, when
so determined, shall be set forth in the Pricing Agreement.
(b) Payment of the purchase price for, and delivery of certificates
for, the Preferred Securities shall be made at the office of Xxxx & Priest
LLP, or at such other place as shall be agreed upon by the Representative
and the Trust, at 10:00 A.M. New York time on the third business day
(unless postponed in accordance with the provisions of Section 9) after
execution of the Pricing Agreement, or such other time not later than ten
business days after such date as shall be agreed upon by the
Representative, the Trust, the Company (such time and date of payment and
delivery being herein called "Closing Time"). Payment shall be made to
the Trust by certified or official bank check or checks drawn in New York
Clearing House funds or similar next day funds payable to the order of the
Trust to an account designated by the Trust, against delivery to the
Representative for the respective accounts of the Underwriters of
certificates for the Preferred Securities to be purchased by them.
Certificates for the Preferred Securities shall be in such denominations
and registered in such names as the Representative may request in writing
at least two business days before the Closing Time. It is understood
that each Underwriter has authorized the Representative, for its account,
to accept delivery of, receipt for, and make payment of the purchase
price for, the Preferred Securities which it has agreed to purchase.
Xxxxxxx Xxxxx, individually and not as Representative of the
Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Preferred Securities to be purchased by any
Underwriter whose check has not been received by the Closing Time, but
such payment shall not relieve such Underwriter from its obligations
hereunder.
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The certificate(s) for the Preferred Securities will be made available for
examination and packaging by the Representative not later than 10:00 A.M. on
the last business day prior to the Closing Time.
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under Section 2 hereof by
certified or official bank check or checks payable to Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated in New York Clearing House funds or other similar
next day funds.
Section 3. Covenants of the Offerors. Each of the Offerors jointly
and severally covenant with each Underwriter as follows:
(a) The Offerors will notify the Representative immediately, and
confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto (including any
post-effective amendment), (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Offerors will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) The Offerors will give the Representative notice of their
intention to file or prepare (i) any amendment to the Registration
Statement (including any post-effective amendment), (ii) any amendment or
supplement to the Prospectus (including any revised prospectus which the
Offerors propose for use by the Underwriters in connection with the
offering of the Preferred Securities which differs from the prospectus on
file at the Commission at the time the Registration Statement became
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), or (iii) any
document that would as a result thereof be incorporated by reference in
the Prospectus whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representative with copies of any such
amendment, supplement or other document a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file any
such amendment, supplement or other document or use any such prospectus to
which the Representative or counsel for the Underwriters shall reasonably
object. Subject to the foregoing, the Offerors will
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promptly prepare a supplement to the Prospectus to reflect the terms of
the Preferred Securities and the terms of the offering. The Offerors will
file the Prospectus as so supplemented pursuant to Rule 424(b) of the 1933
Act Regulations not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) of the 1933 Act Regulations.
(c) The Offerors will deliver to the Representative one signed copy
of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and will also deliver to the Representative a conformed
copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters.
(d) The Offerors will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under
the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1933 Act Regulations.
(e) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Preferred Securities, any
event shall occur as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel to the Company and the Trust, to
amend or supplement the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is to
be delivered to a purchaser, or if it shall be necessary at any such time,
to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Offerors will promptly prepare and file with the
Commission, subject to paragraph (b) above, such amendment or supplement
as may be necessary to correct such untrue statement or omission or to
make the Registration Statement or the Prospectus comply with such
requirements; and the Offerors will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(f) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Preferred Securities (including the Preferred
Securities Guarantee with respect thereto) and the Subordinated Debt
Securities for offering and sale under the applicable securities laws of
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such states and the other jurisdictions of the United States as the
Representative may designate; provided, however, that none of the Offerors
shall be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(g) The Trust will make generally available to its security holders
as soon as practicable but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering a twelve-month period beginning not later than the first day of
the Trust's fiscal quarter next following the "effective date" (as defined
in said Rule 158) of the Registration Statement.
(h) For a period of five years after the Closing Time, the Company
will furnish to you and, upon request, to each Underwriter, copies of all
annual reports, quarterly reports and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may
be designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company to its stockholders or
security holders generally.
(i) The Offerors will use best efforts to effect the listing of the
Preferred Securities (including the Preferred Securities Guarantee with
respect thereto) on the New York Stock Exchange; if the Preferred
Securities are exchanged for Subordinated Debt Securities, the Company
will use its best efforts to effect the listing of the Subordinated Debt
Securities on the exchange on which the Preferred Securities were then
listed.
(j) During a period of 30 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the
Representative's prior written consent, directly or indirectly, sell,
offer to sell, grant any option for the sale of, or otherwise dispose of,
any Preferred Securities, any security convertible into or exchangeable
into or exercisable for Preferred Securities or the Subordinated Debt
Securities or any debt securities substantially similar to the
Subordinated Debt Securities or equity securities substantially similar to
the Preferred Securities (except for the Subordinated Debt Securities and
the Preferred Securities issued in accordance with this Agreement).
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of each Offerors' obligations under this Agreement,
including, but not limited to, (i) the printing and filing of the
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Registration Statement as originally filed and of each amendment thereto,
(ii) the printing of this Agreement and the Pricing Agreement, (iii) the
preparation, issuance and delivery of the certificates for the Preferred
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (v) the qualification
of the Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debt Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of any Blue Sky survey and any legal
investment survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (vii) the printing and delivery
to the Underwriters of copies of any Blue Sky survey and any legal
investment survey, (viii) the fee of the National Association of
Securities Dealers, Inc., (ix) the fees and expenses of the Debt Trustee,
including the fees and disbursements of counsel for the Debt Trustee in
connection with the Indenture and the Subordinated Debt Securities, (x)
the fees and expenses of the Property Trustee, and the Guarantee Trustee,
including the fees and disbursements of counsel for the Property Trustee
in connection with the Declaration and the Certificate of Trust, (xi) any
fees payable in connection with the rating of the Preferred Securities and
the Subordinated Debt Securities, (xii) the fees and expenses incurred in
connection with the listing of the Preferred Securities (and the related
Preferred Securities Guarantee) and, if applicable, the Subordinated Debt
Securities on the New York Stock Exchange, (xiii) the cost and charges of
any transfer agent or registrar, and (xiv) the cost of qualifying the
Preferred Securities with The Depository Trust Company.
If this Agreement is terminated by the Representative in accordance
with the provisions of Section 5 or Section 8 hereof, the Company shall
reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The obligations
of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors herein contained, to the
performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the
Representative, at a later time and date, not later, however, than 5:30
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P.M. on the first business day following the date hereof, or at such
later time and date as may be approved by the Representative; and at
Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. The
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing
by the 1933 Act Regulations and in accordance with Section 3(b) and prior
to Closing Time the Offerors shall have provided evidence satisfactory to
the Representative of such timely filing.
(b) At Closing Time the Representative shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Xxxxxx Xxxxxx & Xxxxx, counsel for the Offerors in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
formation and valid existence of the Trust as a business trust have been
made; the Trust is duly qualified for the transaction of business and is
in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Trust.
(ii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in the foregoing clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that he believes that both you and
he are justified in relying upon such opinions and certificates).
(iii) All of the Common Securities have been duly authorized by
the Declaration and are duly and validly issued, are fully paid and,
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except as otherwise provided in Section 10.1(b) of the Declaration,
nonassessable undivided beneficial interests in the assets of the Trust
and are owned by the Company, free and clear of all liens, encumbrances,
equities or claims; the Common Securities conform as to legal matters to
the description thereof in the Prospectus; and the Trust is not a party to
or otherwise bound by any agreement other than this Agreement, the Pricing
Agreement, the Declaration and the agreements contemplated by the
Prospectus.
(iv) To the best knowledge of such counsel there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Trust, the Company or any of the Company's subsidiaries or any property of
the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately disclosed
in the Prospectus, and there is no contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described in the
Prospectus or filed as required; and the statements included or
incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Trust or the Company
fairly summarize such matters.
(v) The Preferred Securities have been validly issued and,
subject to the qualifications set forth herein, are fully paid and
nonassessable undivided beneficial interests in the assets of the Trust;
the holders of the Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as is extended to
stockholders of private corporations for profit; and the issuance of the
Preferred Securities is not subject to preemptive or other similar rights.
Said counsel may note that the holders of the Preferred Securities may be
obligated, pursuant to the Declaration, to (a) provide indemnity and/or
security in connection with, and pay taxes or governmental charges arising
from, transfers or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates and (b) provide
security and indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and remedies under the
Declaration. The Preferred Securities conform as to legal matters to the
descriptions thereof in the Prospectus.
(vi) The issuance and delivery of the Subordinated Debt
Securities have been duly authorized, and the Subordinated Debt Securities
have been duly executed, authenticated, issued and delivered in accordance
with the Indenture, and the Subordinated Debt Securities
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constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture has been duly authorized, executed and
delivered and has been duly qualified under the 1939 Act and constitutes a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles. The Subordinated Debt Securities and the Indenture conform as
to legal matters to the descriptions thereof in the Prospectus.
(vii) The issuance of each of the Guarantee Agreements has
been duly authorized, executed and delivered and the Preferred Securities
Guarantee constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles. The Preferred Securities Guarantee Agreement
has been duly qualified under the 1939 Act. The Guarantees and the
Guarantee Agreements conform as to legal matters to the descriptions
thereof in the Prospectus.
(viii) The Declaration has been duly authorized, executed and
delivered by the Company and the Trustees and is a valid and binding
obligation of the Company and each of the Regular Trustees, enforceable
against the Company and each of the Regular Trustees in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws relating to or affecting creditors' rights
and to general equity principles. The Declaration conforms as to legal
matters to the description thereof in the Prospectus.
(ix) The Declaration has been duly qualified under the 1939
Act.
(x) This Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by each of the Trust and the
Company.
(xi) The Order has been duly issued and remains in full
force and effect without amendment or modification, and is not the subject
of any appeal or other proceeding.
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(xii) The issuance and sale by the Trust of the Preferred
Securities, the issuance and sale of the Subordinated Debt Securities by
the Company, the compliance by the Trust and the Company with all of the
provisions of this Agreement and the Pricing Agreement, the execution,
delivery and performance by the Company of the Guarantees and
the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any agreement or
instrument known to such counsel to which the Trust or the Company is a
party or by which the Trust or the Company is bound or to which any of the
property of the Trust or the Company is subject, the Certificate of Trust
and the Declaration, the Restated Articles or By-laws of the Company, or
any statute, order, rule or regulation known to such counsel of any court
or any federal or state governmental body having jurisdiction over the
Trust, the Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any court
or governmental agency or body is required solely as a result of the
issuance, sale or delivery of the Preferred Securities or the consummation
of the transactions contemplated by this Agreement and the Pricing
Agreement, except for (i) the Order, (ii) the registration under the 1933
Act of the Securities, (iii) the qualification of the Indenture, the
Declaration and the Preferred Securities Guarantee Agreement under the
1939 Act and (iv) such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase of the Preferred Securities and the
distribution of the Securities by the Underwriters.
(xiii) The Trust is not a "holding company" within the
meaning of the 1935 Act; the Parent is a "holding company" as defined in
the 1935 Act by reason of its ownership of all the outstanding shares of
common stock of the Company, and the Company is a "holding company," but
the Company and the Parent are each exempt from the 1935 Act, except for
the provisions of Section 9(a)(2) thereof, by virtue of Section 3(a)(2)
thereof and Section 3(a)(1) thereof and Rule 2 thereunder, respectively.
(xiv) Neither the Trust nor the Company is and, after giving
effect to the offering and sale of the Preferred Securities, will be an
"investment company" or an entity "controlled" by an "investment company,"
as such terms are defined in the 1940 Act.
(xv) Each part of the Registration Statement, when such
part became effective, and the Prospectus as of its date and any
amendments or supplements thereto made by the Company and the Trust
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prior to the Closing Time as of the date of such amendment or supplement
complied as to form in all material respects with the requirements of the
1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations; such counsel has no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company and the Trust prior to the Closing Time
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated herein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus
and any further amendment or supplement thereto made by the Company and
the Trust prior to the Closing Time, contained an untrue statement of a
material fact or omitted 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 that, as of the Closing Time, either the
Registration Statement or the Prospectus, as amended or supplemented, or
any further amendment or supplement thereto made by the Company and the
Trust prior to the Closing Time contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, that such counsel need not express any belief
(A) as to the financial statements and related schedules in or
incorporated by reference in the Registration Statement and the
Prospectus, (B) as to any information contained therein that was
furnished to the Trust or the Company in writing by any Underwriter
through you expressly for use therein or (C) as to any statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement; and such counsel does not know of any amendment to the
Registration Statement required to be filed or of any contracts or
other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or supplemented
which are not filed or incorporated by reference or described as required.
(xvi) The documents incorporated by reference in the
Prospectus or any amendment or supplement thereto (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), when they became effective under the
1933 Act or were filed with the Commission under the 1934 Act, as the case
may be, complied as to form in all material respects with the requirements
of the 1933 Act or the 1934 Act, as applicable, and the 1933 Act
Regulations and the 1934 Act Regulations; and such counsel has no reason
to believe that any of such documents, when such documents
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became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the 1933 Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or, in the
case of other documents which were filed under the 1933 Act or the
1934 Act with the Commission, an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made when such documents were so filed, not misleading.
In addition, Xxxxxx Xxxxxx & Xxxxx shall include advice that
it confirms its opinion as set forth under "United States Federal Income
Taxation" in the Prospectus.
The foregoing opinions may be limited to the laws of New York,
Delaware and the State of Illinois and federal securities and income tax laws.
In rendering its opinion, such counsel may rely, as to matters of Delaware law
relating to the Trust, the Preferred Securities and the Declaration, upon the
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Company, which shall be delivered in accordance with Section 5(b)(2) hereof,
and as to matters of New York law relating to the Subordinated Debt Securities
and the Indenture, upon the opinion of Xxxx & Priest LLP, which shall be
delivered in accordance with Section 5(b)(4) hereof.
(2) The favorable opinion, dated as of
Closing Time, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., special Delaware counsel to
the Offerors, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Trust has been duly created and
is validly existing in good standing as a business trust under the
Delaware Act, and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Trust
as a business trust have been made.
(ii) Under the Delaware Act and the
Declaration, the Trust has the power and authority to own property and
conduct its business, all as described in the Registration Statement
and the Prospectus.
(iii) The Declaration constitutes a valid
and binding obligation of the Company and the Trustees and is
enforceable against the Company and the Trustees in accordance with
its terms, subject, as
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to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(iv) Under the Delaware Act and the
Declaration, the Trust has the power and authority to (i) execute and
deliver, and to perform its obligations under, this Agreement and the
Pricing Agreement and (ii) issue, and perform its obligations under,
the Trust Securities.
(v) Under the Delaware Act and the
Declaration, the execution and delivery by the Trust of this
Agreement, the Pricing Agreement and the performance by the Trust of
its obligations hereunder and under the Pricing Agreement, have been
duly authorized by all necessary action on the part of the Trust.
(vi) The certificates for the Preferred
Securities are in due and proper form; the Preferred Securities have
been duly authorized by the Declaration and are duly and validly
issued and, subject to qualifications hereinafter expressed in this
paragraph (vi), fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the holders of the Preferred
Securities, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; said counsel may note that
the holders of the Preferred Securities may be obligated, pursuant to
the Declaration, to (i) provide indemnity and/or security in
connection with, and pay taxes or governmental charges arising from,
transfers or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates and (ii)
provide security and indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and remedies
under the Declaration.
(vii) The Common Securities have been duly
authorized by the Declaration and are duly and validly issued and
fully paid and, except as otherwise provided in Section 10.1(b) of the
Declaration, nonassessable undivided beneficial interests in the
assets of the Trust.
(viii) Under the Delaware Act and the
Declaration, the issuance of the Trust Securities is not subject to
preemptive or other similar rights.
(ix) The issuance and sale by the Trust
of the Trust Securities, the purchase by the Trust of the Subordinated
Debt
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Securities, the execution, delivery and performance by the Trust of
this Agreement and the Pricing Agreement, the consummation by the
Trust of the transactions contemplated hereby and by the Pricing
Agreement and compliance by the Trust with its obligations hereunder
and thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation.
(3) The favorable opinion, dated as of
Closing Time, of Xxxxxxx, Xxxxxx & Finger, P.A., counsel of Wilmington Trust
Company, as Property Trustee under the Declaration, and Guarantee Trustee under
the Preferred Securities Guarantee Agreements, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) Wilmington Trust Company is a
Delaware banking corporation with trust powers, duly organized,
validly existing and in good standing under the laws of the State of
Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the terms
of the Declaration and the Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and
performance by the Property Trustee of the Declaration and the
execution, delivery and performance by the Guarantee Trustee of the
Preferred Securities Guarantee Agreement have been duly authorized by
all necessary corporate action on the part of the Property Trustee and
the Guarantee Trustee, respectively. The Declaration and the
Preferred Securities Guarantee Agreement have been duly executed and
delivered by the Property Trustee and the Guarantee Trustee,
respectively, and constitute the legal, valid and binding obligations
of the Property Trustee and the Guarantee Trustee, respectively,
enforceable against the Property Trustee and the Guarantee Trustee,
respectively, in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles.
(iii) The execution, delivery and
performance of the Declaration and the Preferred Securities Guarantee
Agreement by the Property Trustee and the Guarantee Trustee,
respectively, do not conflict with or constitute a breach of the
Articles of Organization or Bylaws of the Property Trustee and the
Guarantee Trustee, respectively.
(iv) No consent, approval or authorization
of, or registration with or notice to, any Delaware or federal banking
authority
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is required for the execution, delivery or performance by the Property
Trustee and the Guarantee Trustee of the Declaration and the Preferred
Securities Guarantee Agreement.
(4) The favorable opinion, dated as of
Closing Time, of Xxxx & Priest LLP, counsel for the Underwriters, in form and
substance satisfactory to the Underwriters with respect to the incorporation
and legal existence of the Company; the formation and legal existence of the
Trust, the Preferred Securities, the Indenture, the Preferred Securities
Guarantee Agreement, this Agreement, the Pricing Agreement, the Registration
Statement, the Prospectus and other related matters as the Representative may
require.
In giving its opinion, Xxxx & Priest LLP may rely as to
certain matters of Delaware law relating to the Trust, the Preferred Securities
and the Declaration upon the opinion of Xxxxxxxx, Xxxxxx & Finger, P.A.,
special Delaware counsel for the Offerors, which shall be delivered in
accordance with Section 5(b)(2) hereto, and as to matters of Illinois law upon
the opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the Offerors, which shall be
delivered in accordance with Section 5(b)(1) hereto.
(c) At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representative shall have received a certificate of a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company and a certificate of a Regular Trustee of the Trust, and dated
as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly made at and
as of Closing Time, (iii) the Trust and the Company have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement,
the Representative shall have received from Price Waterhouse LLP a letter dated
such date, in form and substance satisfactory to the Representative, to the
effect that:
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(i) they are independent public accountants
with respect to the Company and its consolidated subsidiaries, within
the meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion, the consolidated
financial statements and schedules audited by them and included or
incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the
accounting requirements of the 1933 Act or the Exchange Act, as
applicable, and the related published rules and regulations
thereunder, as applicable; they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the Company's consolidated interim financial statements
as described in Statement on Auditing Standards ("SAS") No. 71,
Interim Financial Information, for the periods specified in such
letter performed at the request of the Company;
(iii) based upon limited procedures set forth
in detail in such letter, nothing has come to their attention which
causes them to believe that:
(A) the unaudited consolidated
financial statements of the Company included in the Registration
Statement do not comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the 1934 Act
Regulations, as they apply to Form 10-Q, or are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements included in the Registration Statement,
(B) the unaudited amounts of revenue
and net income set forth under "Summary Financial Information of
Illinois Power" in the Prospectus were not determined on a basis
substantially consistent with that used in determining the
corresponding amounts in the audited financial statements included in
the Registration Statement, or
(C) at a specified date not more than
five days prior to the date of this Agreement, there has been any
change in the capital stock of the Company and its subsidiaries or any
increase in the consolidated long-term debt of the Company and its
subsidiaries or any decrease in total assets or net assets as compared
with the amounts shown on the date of the most recent consolidated
balance sheet included in or incorporated by reference in the
Registration Statement and the Prospectus (September 30, 1995 balance
sheet included in the Registration Statement) or, during the period
from the date of the most
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recent consolidated balance sheet included in or incorporated by
reference in the Registration Statement and the Prospectus to a
specified date not more than five days prior to the date of this
Agreement, there were any decreases, as compared with the
corresponding period in the preceding year, in operating revenues or
net earnings available for common stock of the Company and its
subsidiaries, except in all instances for changes, increases or
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur; and
(iv) in addition to the audit referred to
in their opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages
and financial information which are included in the Registration
Statement and Prospectus, or incorporated therein by reference, and
which are specified by the Representative, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company
and its subsidiaries identified in such letter.
(e) At Closing Time, the Representative shall have
received from Price Waterhouse LLP a letter, dated as of Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section, except that the specified date referred to
shall be a date not more than five days prior to Closing Time.
(f) At Closing Time and each Date of Delivery, if
any, counsel for the Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the Preferred Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Offerors, in connection with
the issuance and sale of the Preferred Securities as herein contemplated shall
be satisfactory in form and substance to the Representative and Xxxx & Priest
LLP, counsel for the Underwriters.
(g) At Closing Time, the Preferred Securities and
the Subordinated Debt Securities shall be rated in one of the four highest
rating categories for long term debt ("Investment Grade") by any nationally
recognized statistical rating agency, and the Trust shall have delivered to the
Representative a letter, dated the Closing Time, from such nationally
recognized statistical rating agency, or other evidence satisfactory to the
Representative, confirming that the Preferred Securities and the Subordinated
Debt Securities have Investment
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Grade ratings; and there shall not have occurred any decrease in the ratings of
any of the debt securities of the Company or of the Preferred Securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the 1933 Act Regulations) and such organization
shall not have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the debt securities
of the Company or of the Preferred Securities.
(h) At the Closing Time, the Preferred Securities
shall have been approved for listing on the New York Stock Exchange upon notice
of issuance.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representative by notice to the Offerors at any time at or
prior to Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof.
Section 6. Indemnification
(a) The Trust and the Company will jointly and severally
indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the 1933 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 or any other prospectus
relating to the Securities, 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, in the light of the
circumstances under which they were made, not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred;
provided, however, that neither the Trust nor the Company shall 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 or omission or alleged omission made in
the Registration Statement, the Prospectus, or any other prospectus
relating to the Securities or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Trust or the Company through you expressly for use therein;
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(b) Each Underwriter will indemnify and hold harmless the
Trust and the Company against any losses, claims, damages or
liabilities to which the Trust or the Company may become subject,
under the 1933 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,
and any other prospectus relating to the Securities, 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, and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Trust or the Company by such
Underwriter through you expressly for use therein; and will reimburse
the Trust and the Company for any legal or other expenses reasonably
incurred by the Trust or the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
(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 that the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnifying
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
shall 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.
No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or
threatened action or claim
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in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or
claim and (ii) does not include any statement as to, or an admission
of, fault, culpability or a failure to act, by or on behalf of any
indemnified party. No indemnifying party shall be liable for any such
settlement, compromise or judgment effected by the indemnified party
without the written consent of the indemnifying party; provided,
however, that if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any such settlement, compromise or judgment effected
without its written consent if (i) such settlement, compromise or
judgment is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement,
compromise or judgment at least 30 days prior to such settlement,
compromise or judgment being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance
with such request prior to the date of such settlement, compromise or
judgment.
(d) If the indemnification provided for in this Section 6
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 Trust and the Company on the one hand and the
Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the indemnified party failed
to give notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Trust and the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Trust and the Company on the one
hand and such Underwriters on the other shall be deemed to be in the
same
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proportions as the total net proceeds from the offering (before
deducting expenses) received by the Trust and the Company bear to the
total underwriting discounts and commissions received by such
Underwriters. 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 Trust and the
Company on the one hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Trust, the Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d)
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 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. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Preferred Securities 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 1933
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect
to the Preferred Securities and not joint.
(e) The obligations of the Trust and the Company under
this Section 6 shall be in addition to any liability which the Trust
and the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the obligations of
the Underwriters under this Section 6 shall be in addition to any
liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer and
director of the Trust and the Company and to each person, if any, who
controls the Trust or the Company within the meaning of the 1933 Act.
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Section 7. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement and the Pricing Agreement, or contained in certificates of
officers or Trustees of the Offerors submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of
the Offerors and shall survive delivery of the Preferred Securities to the
Underwriters.
Section 8. Termination of Agreement.
(a) The Representative may terminate this Agreement, by
notice to the Offerors, at any time at or prior to Closing Time (i) if there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition financial or otherwise, or in the earnings, business
affairs or business prospects or the Trust or the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which is such as to make it, in the judgment of the Representative,
impracticable to market the Preferred Securities or to enforce contracts for
the sale of the Preferred Securities, (iii) if trading in the Preferred
Securities has been suspended by the Commission, or if trading generally on the
New York Stock Exchange has been suspended, limited or restricted or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required (excluding existing "circuit breaker" provisions
in effect under the rules of said exchange on the date hereof), by said
exchange or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either federal, New York, Illinois
or Delaware authorities or (iv) if there has been any decrease in the ratings
of any of the debt securities of the Company or of the Preferred Securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) of the 1933 Act Regulations) or such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the debt securities of the Company
or of the Preferred Securities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
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Section 9. Default by One or More of the Underwriters. If
one or more of the Underwriters shall fail at Closing Time to purchase the
Preferred Securities that it or they are obligated to purchase under this
Agreement and the Pricing Agreement (the "Defaulted Securities"), the
Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the Preferred Securities, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the Preferred Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Offerors shall
have the right to postpone Closing Time for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
Section 10. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to
the Underwriters shall be directed to the Representative at Xxxxxxx Xxxxx World
Headquarters, North Tower, World Financial Center, New York, New York
10281-1201, attention of Xxxxxxx Xxxxxxxxx, Senior Managing Director; notices
to the Trust, and the Company shall be directed to them at 000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of Xxxxxx X. Xxxxxxxx, Assistant
Treasurer.
Section 11. Parties. This Agreement and the Pricing
Agreement shall each inure to the benefit of and be binding upon the
Underwriters and the Trust, the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or the Pricing Agreement is
intended or shall be
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construed to give any person, firm or corporation, other than the Underwriters
and the Trust and the Company and their respective successors and the
controlling persons and officers, directors and trustees referred to in Section
6 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or the Pricing Agreement
or any provision herein or therein contained. This Agreement and the Pricing
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the Underwriters and the Trust and the
Company and their respective successors, and said controlling persons and
officers, directors and trustees and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 12. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in said State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
Section 13. Counterparts. This Agreement may be executed by
any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
ILLINOIS POWER COMPANY
By
------------------------------------
Title:
ILLINOIS POWER FINANCING I
By
------------------------------------
Title: Trustee
By
------------------------------------
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By
--------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
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SCHEDULE A
Number
Name of Underwriter of Securities
------------------- -------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . . . .
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . .
Xxxx Xxxxxx Xxxxxxxx Inc. . . . . . . . . . . . . . . .
X.X. Xxxxxxx & Sons, Inc. . . . . . . . . . . . . . . .
PaineWebber Incorporated . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . 4,000,000
=========
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EXHIBIT A
_________________ Preferred Securities
ILLINOIS POWER FINANCING I
(a Delaware business trust)
_____% Trust Originated Preferred Securities ("TOPrS")
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
XXXXXXX XXXXX & CO. _________, 1995
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
as Representative of the several
Underwriters named in the within-
mentioned Underwriting Agreement
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated
_________, 1995 (the "Underwriting Agreement"), relating to the purchase by the
several Underwriters named in Schedule A thereto, for whom Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated is acting as representative
(the "Representative"), of the above ___% Trust Originated Preferred Securities
(the "Preferred Securities"), of ILLINOIS POWER FINANCING I, a Delaware
business trust (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the
Trust, Illinois Power Company (the "Company"), an Illinois corporation, agree
with each Underwriter as follows:
1. The initial public offering price per security
for the Preferred Securities, determined as provided in said Section
2, shall be $25.00.
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2. The purchase price per security for the Preferred
Securities to be paid by the several Underwriters shall be $25.00,
being an amount equal to the initial public offering price set forth
above.
3. The compensation per Preferred Security to be
paid by the Company to the several Underwriters in respect of their
commitments hereunder shall be ______; provided, however, that the
compensation per Preferred Security for sales of 10,000 or more
Preferred Securities to a single purchaser shall be _____.
2
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
ILLINOIS POWER COMPANY
By
------------------------------------
Title:
ILLINOIS POWER FINANCING I
By
------------------------------------
Title: Trustee
By
------------------------------------
Title: Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By
----------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in the Underwriting Agreement.
