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EXHIBIT 1.1
___________, ____
CHICAGO, ILLINOIS
ILLINOIS POWER COMPANY
NEW MORTGAGE BONDS
UNDERWRITING AGREEMENT
To the Representative(s) named in Schedule I
hereto of the Underwriters named in Schedule II hereto.
Ladies and Gentlemen:
Illinois Power Company, an Illinois corporation (the "Company"), proposes
to issue and sell from time to time, in one or more series, its New Mortgage
Bonds which are registered under the registration statement referred to in
Section 1(a) ("Bonds"). The Bonds will be issued under the Company's General
Mortgage and Deed of Trust, dated as of November 1, 1992 (the "General
Mortgage"), and supplemental indentures thereto, including a supplemental
indenture (the "Supplemental Indenture") specifically relating to the Purchased
Bonds (as defined below), between the Company and the Xxxxxx Trust and Savings
Bank, as trustee (the "New Mortgage Trustee") (the General Mortgage and all
supplemental indentures thereto are collectively referred to as the "New
Mortgage"). The Bonds will be secured primarily by a bond issued to the New
Mortgage Trustee under the Company's Mortgage and Deed of Trust dated November
1, 1943 from the Company to Xxxxxx Trust and Savings Bank, as trustee (the
"First Mortgage Trustee") as amended and supplemented by various supplemental
indentures (the "First Mortgage"), including a supplemental indenture (the
"First Mortgage Supplemental Indenture") specifically relating to the bond (the
"First Mortgage Bond") securing the Purchase Bonds (as hereinafter deferred).
The Company proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as Representative or
Representatives (the "Representatives"), Bonds in the aggregate principal
amount and of the series identified in Schedule I hereto (the "Purchased
Bonds").
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (No. 333- ) relating
to the Bonds has been filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act") and has
become effective. Such registration statement, including the prospectus
contained therein, as amended and supplemented to the date of this Agreement
(exclusive of supplements to the prospectus relating solely to Bonds that are
not the Purchased Bonds) and as supplemented by the
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prospectus supplement to be included as part of the prospectus to be filed
with the Commission pursuant to Rule 424(b) under the Act, as provided in
Section 3(a) hereof, are collectively referred to as the "Registration
Statement" and such prospectus is collectively referred to as the
"Prospectus." Any reference herein to the Registration Statement or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the date of this Agreement; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act deemed to be incorporated
therein by reference after the date of this Agreement.
(b) The Registration Statement and the Prospectus, both at the time
the Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act as provided in Section 3(a) hereof, and any further amendments and
supplements to the Prospectus when they become effective or are filed with
the Commission, as the case may be, prior to the Closing Date (as defined
below), will conform in all respects to the requirements of the Act, the
Exchange Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission (the "Rules
and Regulations"), and none of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that
the foregoing does not apply to statements or omissions in such documents
based upon written information furnished to the Company by any Underwriter
specifically for use therein or in reliance upon and in conformity with the
Form T-1 of the New Mortgage Trustee.
2. Purchase, Offering and Delivery. Subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price set forth in Schedule I hereto, the principal amount of the
Purchased Bonds set forth opposite such Underwriter's name in Schedule II
hereto. It is understood that the Underwriters propose to offer the Purchased
Bonds for sale to the public as set forth in the prospectus supplement relating
to the Purchased Bonds.
The Purchased Bonds to be purchased by each Underwriter shall be delivered
by the Company for the account of such Underwriter to the place specified in
Schedule I hereto against payment of the purchase price therefor by such
Underwriter or on its behalf in the type of funds and method of payment
specified in Schedule I hereto, drawn to the order of the Company, at the
office of Xxxxxx Trust and Savings Bank, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, at the time and date specified in Schedule I hereto or at such
other time and date as the Representatives and the Company may agree, such time
and date being herein referred to as the "Closing Date." The Purchased Bonds so
to be delivered will be in definitive fully registered form in such authorized
denominations and registered in such names as the Representatives request at
least two full business
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days before the Closing Date and will be made available for checking and
packaging in the City designated in Schedule I as the place of delivery at
least 24 hours prior to the Closing Date.
3. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) Promptly following execution of this Agreement, the Company will
cause the Prospectus (including as part thereof a prospectus supplement
relating to the Purchased Bonds (the "Prospectus Supplement")) to be filed
with the Commission pursuant to Rule 424(b) under the Act and the Company
will promptly advise the Representatives when such filing has been made.
Prior to such filing, the Company will work with the Representatives in the
preparation of the Prospectus Supplement to assure that the Representatives
have no reasonable objection to the form or content thereof when filed.
(b) If at any time when a prospectus relating to the Purchased Bond
is required to be delivered under the Act any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact, or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend or supplement the
Registration Statement or Prospectus to comply with the Act or the Rules or
Regulations, the Company promptly will prepare and file with the Commission
an amendment or supplement which will correct such statement or omission,
or an amendment which will effect such compliance.
(c) The Company will furnish to each Underwriter such number of
copies of the Prospectus as may be reasonably requested in connection with
the offering of the Purchased Bonds.
(d) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Underwriters
for any expenses up to $__________ in the aggregate (including fees and
disbursements of counsel) incurred in connection with qualification of the
Purchased Bonds for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
designate and the printing of memoranda relating thereto.
(e) The Company will not, for the period ending on the day
immediately succeeding the Closing Date, without the prior written consent
of the Underwriters, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any other debt
securities of the Company.
4. Conditions to the Obligations of the Underwriters. The obligation of
the several Underwriters to purchase and pay for the Purchased Bonds hereunder
will be subject to the accuracy
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of the representations and warranties on the part of the Company herein, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) Subsequent to the execution and delivery of this Agreement there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties
of the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including you, materially impairs the
investment quality of the Purchased Bonds or (ii) any downgrading in the
rating of the Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act).
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company, or the
Underwriters, shall be contemplated by the Commission.
(c) The Underwriters shall have received the following:
(i) A letter of Price Waterhouse, dated the Closing Date,
confirming that they are independent accountants within the meaning of the Act
and the Rules and Regulations, and stating in effect that (i) in their opinion,
the financial statements examined by them and incorporated by reference in the
Prospectus comply as to form in all material respects with the accounting
requirements of the Act and the Rules and Regulations applicable to annual
reports on Form 10-K (ii) on the basis of a reading of the interim financial
statements referred to in Clause (A) below, a reading of the latest available
interim financial statements of the Company, a reading of the minutes of the
Board of Directors and stockholders of the Company as set forth in the minute
books of the Company and inquiries of officials of the Company responsible for
financial and accounting matters, nothing came to their attention that caused
them to believe that (A) the unaudited financial statements included in the most
recent Quarterly Report on Form 10-Q incorporated by reference in the Prospectus
were not prepared on a basis substantially consistent with that of the audited
financial statements as of and for the fiscal year ended December 31, 199__
incorporated by reference in the Prospectus, or (B) at the date of the latest
available balance sheet read by such accountants or at a subsequent specified
date not more than five days prior to the Closing Date, there was any change in
the capital stock or long-term debt of the Company or, at the date of the latest
available balance sheet read by such accountants, there was any decrease in net
assets, in each case as compared with the corresponding amounts shown in the
December 31, 199__ balance sheet incorporated by reference in the Prospectus, or
(C) for the period of twelve months ended with the Closing Date or of the latest
available income statement read by such accountants, there were any decreases,
as compared with the twelve months ended December 31, 199__ in operating
revenues, operating income, net income, earnings per share of common stock or
the ratio of earnings to fixed charges, except in all cases set forth
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in clauses (B) and (C) above for changes or decreases which the
Prospectus discloses have occurred or may occur, or which are
described in such letter, and (iii) they have compared the dollar
amounts (or percentages derived from such dollar amounts) and other
financial information contained in the Prospectus under the captions
"Use of Proceeds," "Ratio of Earnings to Fixed Charges," and
"Description of First Mortgage Bonds" and contained in the Company's
Annual Report on Form 10-K for the year ended December 31, 199__ and
Quarterly Report on Form 10-Q for the quarter ended __________, ______
(which are incorporated by reference in the Prospectus) (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter, and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results except as otherwise specified in such letter. All
financial statements included in material incorporated by reference in
the Prospectus shall be deemed included in the Prospectus for purposes
of this subsection.
(ii) An opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the
Company, dated the Closing Date, to the effect that:
(A) 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 corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and the Company is not required to be qualified as a
foreign corporation in any jurisdiction.
(B) The Purchased Bonds have been duly authorized,
executed, authenticated, issued and delivered, and constitute the
valid and binding obligations of the Company enforceable in
accordance with their terms, except as the same may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors'
rights, and (b) general equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), and (subject to the qualifications mentioned
in subparagraph C below with respect to the enforceability of the
General Mortgage and to the provisions of any purchase or sinking
fund or analogous provisions for any particular series of bonds
established by any indenture supplemental to the General
Mortgage) are entitled to the benefit and security of the General
Mortgage in accordance with the terms thereof equally and ratably
with all other bonds issued under the General Mortgage.
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(C) The General Mortgage and the Supplemental Indenture have each been
duly authorized, executed and delivered and are valid and binding instruments
enforceable in accordance with their terms, except as the same may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights or the
enforcement of the security provided by the General Mortgage, and (b) general
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except that no opinion is expressed
with respect to the enforceability of the lien of the General Mortgage on
chattels as against third parties (other than chattels delivered in pledge to
the New Mortgage Trustee) or with respect to the enforceability of the lien of
the New Mortgage on after-acquired property (in respect of which a supplemental
indenture shall not have been executed, delivered and recorded) as against
purchasers for value and without notice. The laws of the State of Illinois
provide that no real estate in the State of Illinois shall be sold by virtue of
any power of sale contained in any mortgage, but that all such mortgages shall
be foreclosed only in the manner provided for foreclosing mortgages containing
no power of sale, and that no real estate shall be sold to satisfy any mortgage
except as authorized under the Illinois Mortgage Foreclosure Law. Such laws,
however, provide for the foreclosing of mortgages by judicial proceedings and,
in the judgment of such counsel, provide adequate remedies for the realization
of the benefits of the security provided in the General Mortgage.
(D) The First Mortgage Bond has been duly authorized, executed,
authenticated, issued and delivered to the New Mortgage Trustee, and
constitutes the valid and binding obligation of the Company enforceable in
accordance with its terms, except as the same may be limited by (a) bankruptcy,
insolvency, reorganization moratorium or other laws relating to or affecting
the enforcement of creditors' rights, and (b) general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and (subject to the qualifications mentioned in subparagraph
(E) below with respect to the enforceability of the First Mortgage and to the
provisions of any purchase or sinking fund or analogous provisions for any
particular series of bonds established by any indenture supplemental to the
First Mortgage) is entitled to the benefit and security of the First Mortgage
in accordance with the terms thereof equally and ratably with all other bonds
issued under the First Mortgage; and the New Mortgage Trustee as the registered
owner of the First Mortgage Bond will be entitled to the payment of principal
and interest, and premium, if any, in case of redemption, as therein provided.
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(E) The First Mortgage and the First Mortgage Supplemental Indenture have
each been duly authorized, executed and delivered and are valid and binding
instruments enforceable in accordance with their terms, except as the same may
be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting the enforcement of creditors' rights or the
enforcement of the security provided by the First Mortgage, and (b) general
equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except that no opinion is expressed
with respect to the enforceability of the lien of the First Mortgage on
chattels as against third parties (other than chattels delivered in pledge to
the First Mortgage Trustee), or with respect to the enforceability of the lien
of the First Mortgage on after-acquired property (in respect of which a
supplemental indenture shall not have been executed, delivered and recorded) as
against purchasers for value and without notice. The laws of the State of
Illinois provide that no real estate in the State of Illinois shall be sold by
virtue of any power of sale contained in any mortgage, but that all such
mortgages shall be foreclosed only in the manner provided for foreclosing
mortgages containing no power of sale, and that no real estate shall be sold to
satisfy any mortgage except as authorized under the Illinois Mortgage
Foreclosure Law. Such laws, however, provide for the foreclosing of mortgages
by judicial proceedings and, in our judgment, provide adequate remedies for the
realization of the benefits of the security provided in the First Mortgage.
(F) The General Mortgage constitutes a valid and legally effective
mortgage creating a valid lien, which lien is junior to the lien of the First
Mortgage, for the security of all bonds duly issued thereunder upon
substantially all of the Company's properties used in the generation, purchase,
transmission, distribution and sale of electricity or gas, with the exceptions,
and subject to the reservations, encumbrances (including the lien of the First
Mortgage) and restrictions recited in the granting and habendum clauses of, and
as provided in, the General Mortgage, or referred to in the Prospectus under
the subcaption "Security" under the caption "Description of the New Mortgage
Bonds." Except as to after-acquired property, and except as to property sold,
or under contract to be sold, or otherwise disposed of by the Company and
released from the lien of the General Mortgage, or abandoned, pursuant to the
provisions thereof, the Company has good and sufficient title to all the
properties described in, and conveyed or pledged by, the General Mortgage with
the exceptions and subject to the reservations, encumbrances (including the
lien of the First Mortgage) and restrictions recited in the granting and
habendum clauses of, and as provided in, the General Mortgage, or referred to
in the Prospectus under said sub-caption "Security."
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(G) The First Mortgage constitutes a valid and legally effective mortgage
creating a valid first lien for the security of all bonds duly issued thereunder
upon substantially all of the fixed properties owned and franchises and rights
held by the Company, with the exceptions, and subject to the reservations,
encumbrances and restrictions recited in the granting and habendum clauses of,
and as provided in, the First Mortgage, or referred to in the Prospectus under
the subcaption "Description of First Mortgage Bonds -- Security." Except as to
after-acquired property, and except as to property sold, or under contract to be
sold, or otherwise disposed of by the Company and released from the lien of the
First Mortgage, or abandoned, pursuant to the provisions thereof, the Company
has good and sufficient title to all the properties described in, and conveyed
or pledged by, the First Mortgage with the exceptions, and subject to the
reservations, encumbrances, and restrictions recited in the granting and
habendum clauses of, and as provided in, the First Mortgage, or referred to in
the Prospectus under said subcaption "Security."
(H) The Registration Statement has become effective under the Act; the
General Mortgage has been duly qualified under the Trust Indenture Act to the
extent required; to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the requirements
of the Act, the Exchange Act, the Trust Indenture Act and the Rules and
Regulations; such counsel has no reason to believe that the Registration
Statement or the Prospectus, or any such amendment or supplement, as of such
respective dates, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the Prospectus which are
not described as required, nor of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not described
and filed as required; it being understood that such counsel need express no
opinion as to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
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(I) This Agreement has been duly authorized, executed and delivered by the
Company.
(J) The Illinois Commerce Commission has entered orders (a) permitting the
execution and delivery of the General Mortgage, the Supplemental Indenture, the
First Mortgage, and the First Mortgage Supplemental Indenture, respectively,
and (b) approving the issuance and sale of the Purchased Bonds and the issuance
and pledge of the First Mortgage Bond; said, orders are valid and in effect and
no further approval, authorization, consent or order of, or action by, any
other regulatory authority is necessary with respect to the execution and
delivery of the General Mortgage, the Supplemental Indenture, the First
Mortgage or the First Mortgage Supplemental Indenture, the issuance and
sale of the Purchased Bonds, or the issuance and pledge of the First Mortgage
Bond, each as contemplated by this Agreement; it being understood that in
giving such opinion such counsel is not passing upon the authorizations or
approvals which may be necessary under the securities or blue sky laws of any
jurisdiction other than the United States of America. The issuance and sale of
the Purchased Bonds and the issuance and pledge of the First Mortgage Bond,
each as contemplated by this Agreement, are in conformity with the terms of
said orders of the Illinois Commerce Commission.
(K) The statements made in the Prospectus under the caption "Description of
the New Mortgage Bonds" and the subcaption "Description of First Mortgage
Bonds," insofar as they purport to summarize provisions of the documents
specifically referred to under said captions, fairly present the information
called for with respect thereto by Form S-3.
(L) The statements in the Prospectus and in the Company's Annual Report on
Form 10-K for the year ended December 31, 199_ (which is incorporated by
reference in the Prospectus) as to matters of law and legal conclusions which
are stated in the Prospectus to have been made on the authority of such counsel,
have been reviewed by such counsel and, as to matters of law and legal
conclusions, are correct.
(M) The execution, delivery and performance by the Company of this
Agreement, the General Mortgage, the Supplemental Indenture and the First
Mortgage Supplemental Indenture, and the incurrence by the Company of the
obligations and the consummation of the transactions contemplated by this
Agreement and the foregoing Supplemental Indenture and First Mortgage
Supplemental Indenture, will not conflict with or constitute a breach of, or
default under, the Restated Articles of Incorporation or By-Laws of the Company
or, to such counsel's knowledge, any mortgage, contract, lease,
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note or other instrument to which the Company or any significant
subsidiary of the Company is a party or by which the Company or any
significant subsidiary of the Company may be bound, or any law,
administrative regulation or any administrative, arbitration or court
order.
(iii) An opinion from __________________, counsel for the
Underwriters, as to those matters as the Underwriters may reasonably
require.
(iv) A certificate of the Chairman, President, an Executive Vice
President, a Senior Vice President, a Vice President or General Counsel and
the Treasurer or the principal financial or accounting officer of the
Company, dated the Closing Date, in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Date, that no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission, and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company except as set forth or
contemplated in the Prospectus or as described in such certificate.
(v) An order or orders of the Illinois Commerce Commission authorizing
the issuance and sale of the Purchased Bonds in accordance with the terms
and conditions hereof shall be in full force and effect and shall contain
no condition or provision unacceptable to the Underwriters, it being
understood that no order in effect as of the date hereof contains any such
unacceptable condition or provision.
(vi) A copy of the Company's audited financial statements at December
31, 199_, manually signed by Price Waterhouse.
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as the Underwriters reasonably
request.
5. Conditions to the Obligation of the Company. The obligation of the
Company to sell and deliver the Purchased Bonds on the Closing Date is subject
to the following conditions precedent:
(a) Prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted, or, to the
knowledge of the Company or the Underwriters, shall be contemplated by the
Commission.
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(b) There shall be in effect on the Closing Date an order of the
Illinois Commerce Commission authorizing the issuance and sale of the
Purchased Bonds in accordance with the terms and conditions thereof, and no
order of the Illinois Commerce Commission shall be in effect at the Closing
Date, which would prevent the sale and delivery of the Purchased Bonds or
which contains any condition or provision with respect to such sale which
is not acceptable to the Company, it being understood that no order in
effect at the date of this Agreement contains any such unacceptable
condition or provision.
If any such condition shall not have been satisfied, then the Company shall be
entitled, by notice in writing to the Underwriters, to terminate this Agreement
without liability on the part of the Company or any Underwriter, except as
provided herein.
6. Indemnification.
(a) The Company will indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Act against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for
use therein or in reliance upon and in conformity with the Form T-1 of the
New Mortgage Trustee. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
each of its directors and officers and each person, if any, who controls
the Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director, officer
or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any amendment or supplement thereto, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
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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 was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriters specifically for use therein; and will
reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which such
Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except as otherwise provided in the succeeding sentence.
If the indemnifying party shall not have employed counsel to have charge of
the defense of any such action, or if any such indemnified party or parties
shall have reasonably concluded that there is a conflict of interest which may
give rise to defenses available to them which are different from or additional
to those available to the indemnifying party (in which case the indemnifying
party shall not have the right to direct the defense of such action on behalf of
the indemnified party or parties), legal and other expenses thereafter
reasonably incurred by the indemnified party shall be borne by the indemnifying
party. Neither the indemnifying party nor indemnified party shall be liable for
any settlement of any such action effected without its written consent.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section, for any reason other than as specified therein, the
parties entitled to indemnification by the terms thereof shall be entitled to
contribution to liabilities and expenses, except to the extent that contribution
is not permitted under Section 11(f) of the Act. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative benefits received by each party from the offering of the
Purchased Bonds (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement
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or omission, and any other equitable considerations appropriate under
the circumstances. The Company and the Underwriters agree that it would
not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation. The Underwriters or person
controlling such Underwriters shall not be obligated to make
contribution hereunder which in the aggregate exceeds the total public
offering price of the Purchased Bonds less the aggregate amount of any
damages which the Underwriters and their controlling persons have
otherwise been required to pay in respect of the same claim or any
substantially similar claim.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase the Purchased Bonds hereunder on the Closing
Date and the aggregate principal amount of Purchased Bonds which such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the aggregate principal amount of the Purchased Bonds which the
Underwriters are obligated to purchase on the Closing Date, you may make
arrangements satisfactory to the Company for the purchase of such Purchased
Bonds by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Purchased Bonds which such defaulting Underwriters
agreed but failed to purchase on the Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of the Purchased
Bonds with respect to which such default or defaults occur is more than the
above percentage and arrangements satisfactory to you and the Company for the
purchase of such bonds by other persons are not made within thirty-six hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or the Company, except as provided in
Section 8 hereof. In the event that any Underwriter or Underwriters default in
their obligations to purchase the Purchased Bonds hereunder, the Company may by
prompt written notice to you postpone the Closing Date for a period of not more
than seven full business days in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus or in any other
documents, and the Company will promptly file any amendments to the Registration
Statement or supplements to the Prospectus which may thereby be made necessary.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 7. Nothing herein will relieve
a defaulting Underwriter, from liability for its default.
8. Survival of Representations, Warranties, etc. The respective
representations, warranties, agreements and indemnities of the Company and the
Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters or the Company or any
of their officers or directors or any controlling person, and will survive
delivery of any payment for the Purchased Bonds.
9. Termination of Agreement. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date (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
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Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, or business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
national or international calamity or crisis, the effect of which is such as to
make it, in the judgment of the Representatives, impracticable to market the
Purchased Bonds or to enforce contracts for the sale of the Purchased Bonds, or
(iii) if trading on the New York Stock Exchange has been suspended, or if a
banking moratorium has been declared by either Federal or New York authorities.
If this Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided
in Section 8 hereof.
10. Notice. All communications hereunder shall be in writing and if
sent to the Company will be mailed, delivered or transmitted via facsimile and
confirmed to it at 000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 and if sent
to any of the Underwriters will be mailed, delivered or transmitted via
facsimile and confirmed to such addresses as the Representatives of the
Underwriters shall advise the Company in writing.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 6 hereof,
and no other person will have any right or obligation hereunder.
12. Counterparts. This Agreement may be executed in counterparts all
of which, taken together, shall constitute a single agreement among the parties
to such counterparts.
13. Representation of the Underwriters. The Representatives represent
and warrant to the Company that they are authorized to act as the
representatives of the Underwriters in connection with this financing, and the
Representatives' execution and delivery of this Agreement and any action under
this Agreement taken by such Representatives will be binding upon all
Underwriters.
14. Interpretation When No Representatives. In the event no
Underwriters are named in Schedule II hereto, the term "Underwriters" shall be
deemed for all purposes of this Agreement to be the Underwriter or Underwriters
named as such in Schedule I hereto, the principal amount of the Purchased Bonds
to be purchased by any such Underwriter shall be that set forth opposite its
name in Schedule I hereto and all reference to the "Representatives" shall be
deemed to be the Underwriter or Underwriters named in such Schedule I.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
ILLINOIS POWER COMPANY
By: ____________________________
Its:____________________________
Accepted as of the date of this Underwriting
Agreement set forth in Schedule I hereto.
____________________________________________ ,
as Representatives
By: ____________________________
Its:____________________________
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SCHEDULE I
NEW MORTGAGE BONDS, ____% SERIES DUE _____
Name and address of Representatives:
______________________________________
______________________________________
______________________________________
Purchase Price and Description of Purchased Bonds:
Principal Amount: $ _________________
Purchase Price: ____% of the Principal Amount
Interest Rate: ____%
Initial Public Offering Price: ____%
Selling Concession: ____%
Reallowance to Dealers: ____%
Maturity: ______
Sinking Fund Provisions: ______
Redemption Provisions: ___________________________________________________
Other Provisions: _____________________________________________________________
Time and Date of Delivery and Payment (the "Closing Date")
Date: _______________
Time: _______________
Place of Delivery of Purchased Bonds: ______________________
Type of Funds: _________________________
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Method of Payment: _________________
Underwriting Agreement Dated: ___________, ____________
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SCHEDULE II
PRINCIPAL AMOUNT OF
NAME OF UNDERWRITER PURCHASED BONDS
------------------- -------------------
TOTAL: $
===============
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