Exhibit B-7
AMEREN CORPORATION
_____% Series __ Senior Notes due ____
PURCHASE AGREEMENT
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_________, ____
[Purchaser[s] Name[s] and Address[es]]
Ladies and Gentlemen:
1. Introduction. Ameren Corporation, a Missouri corporation
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(the "Company"), proposes to issue and sell to you (the "Initial
Purchasers"), $___________ principal amount of its _____% Series
__ Senior Notes due ____ (the "Securities"), subject to the terms
and conditions set forth herein. The Securities are to be issued
pursuant to the provisions of the Indenture (for Unsecured Debt
Securities), dated as of _________, ____, between the Company and
____________________, as Trustee (the "Trustee"), said Indenture,
together with any amendments or supplements thereto, being
hereinafter referred to as the "Indenture".
2. Terms of Offering. The Securities will be offered and sold
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to the Initial Purchasers pursuant to one or more exemptions from
the registration requirements under the Securities Act of 1933,
as amended (the "Securities Act"). The Company has prepared and
will deliver to the Initial Purchasers, on the date hereof or the
next succeeding day, copies of an offering memorandum, dated
_________, ____, relating to the Securities, for use by the
Initial Purchasers in connection with their solicitation of
purchases of, or offerings of, the Securities. "Offering
Memorandum" means, with respect to any date or time referred to
in this Agreement, the most recent offering memorandum (including
any amendment or supplement to such document as of such date),
including exhibits thereto and any documents incorporated therein
by reference, which has been prepared and delivered by the
Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the
Securities purchased hereunder on the terms set forth in the
Offering Memorandum solely to persons whom the Initial Purchasers
reasonably believe to be (i) "qualified institutional buyers" as
defined in Rule 144A under the Securities Act ("QIBs"), (ii)
other institutional "accredited investors" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act that execute
and deliver a certificate containing certain representations and
agreements ("Institutional Accredited Investors"), and (iii) non-
U.S. persons to whom offers and sales of the Securities may be
made in reliance upon the provisions of Regulation S under the
Securities Act (such persons collectively being referred to
herein as the "Eligible Purchasers"). The Initial Purchasers
will offer the Securities to Eligible Purchasers initially at a
price equal to ______% of the principal amount thereof. Such
price may be changed at any time without notice.
Upon original issuance thereof, and until such time as
the same is no longer required pursuant to the Indenture with
respect thereto, the Securities shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT
OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY,
(2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT,
(3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE
OF THIS SECURITY), (4) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF
THIS SECURITY), OR (5) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON
THE REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION,
AND A CERTIFICATE IN THE FORM ATTACHED TO THIS SECURITY IS
DELIVERED BY THE TRANSFEREE TO THE COMPANY AND THE TRUSTEE
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. AN INSTITUTIONAL
ACCREDITED INVESTOR HOLDING THIS SECURITY AGREES IT WILL
FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES AND
OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE
FOREGOING RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE
COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF, OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (o)(2) OF RULE 902 UNDER,
REGULATION S UNDER THE SECURITIES ACT."
3. Representations and Warranties of the Company. The Company
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represents and warrants to the Initial Purchasers that:
a. At the date hereof, the Offering Memorandum does
not, and at the Closing Date, as hereinafter defined, the
Offering Memorandum 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 not misleading; provided that the foregoing
representations and warranties in this paragraph (a) shall
not apply to statements or omissions made in reliance upon
and in conformity with the information furnished to the
Company in writing by, or on behalf of, the Initial
Purchasers expressly for use in the Offering Memorandum.
b. The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a material breach of any of the terms or
provisions of, or constitute a material default under, any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is now a party.
c. Subject to compliance by the Initial Purchasers
with the representations and warranties set forth in Section
7 hereof and, with respect to sales to Eligible Purchasers,
compliance by the Initial Purchasers with the provisions of
Rule 144A, Regulation D and Regulation S applicable to the
Initial Purchasers in connection with such sales, it is not
necessary in connection with the offer, sale and delivery of
the Securities by the Company to the Initial Purchasers and
by the Initial Purchasers to each Eligible Purchaser in the
manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the Securities
Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
d. The Company has not, directly or indirectly,
solicited any offer to buy or offered to sell, and will not,
directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen
or resident, any security which is or would be integrated
with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities
Act.
e. The Securities are eligible for resale pursuant to
Rule 144A and will not be, at the Closing Date, of the same
class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act, of 1934, as
amended (the "Exchange Act") or quoted in a U.S. automated
interdealer quotation system.
f. None of the Company, its affiliates, as such term
is defined in Rule 501(b) under the Securities Act
("Affiliates"), or any person acting on behalf of the
Company or any Affiliate (other than the Initial Purchasers,
as to whom the Company makes no representation) has engaged
or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the
Securities Act.
g. With respect to those Securities sold in reliance
on Regulation S, (A) none of the Company, its Affiliates or
any person acting on its or their behalf (other than the
Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B)
each of the Company and its Affiliates and any person acting
on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation) has complied
and will comply with the offering restrictions requirements
of Regulation S.
The Company acknowledges that the Initial Purchasers,
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 hereof, counsel to the Company
and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations and the Company hereby
consents to such reliance.
4. Purchase and Sale. On the basis of the representations and
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warranties herein contained, and subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Initial Purchasers, and each of the Initial Purchasers severally
and not jointly agrees to purchase from the Company, at the time
and place herein specified, the principal amount of the
Securities set forth opposite the name of such Initial Purchaser
in Schedule I attached hereto, at a purchase price equal to
______% of the principal amount thereof.
5. Time and Place of Closing. Delivery of the Securities
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against payment therefor by wire transfer in federal funds shall
be made at the office of _____________________, __ _________, at
_________,_____ Time, on __________, ____, or at such other
place, time and date as shall be agreed upon in writing by the
Company and the Initial Purchasers. The hour and date of such
delivery and payment are herein called the "Closing Date". The
Securities shall be delivered to the Initial Purchasers, or as
directed by the Initial Purchasers, in fully registered form in
such denominations of $_____ and in integral multiples of $_____
in excess thereof and registered in such names as the Initial
Purchasers shall reasonably request in writing not later than the
close of business on the second business day prior to the Closing
Date, or, to the extent not so requested, registered in the names
of the Initial Purchasers in such authorized denominations as the
Company shall determine. The Company agrees to make the
Securities available to the Initial Purchasers for checking
purposes not later than ______A.M., ________ Time, on the last
business day preceding the Closing Date at the office of
________________________________________.
6. Covenants of the Company. The Company agrees with the
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Initial Purchasers as follows:
a. To advise the Initial Purchasers (i) of the
issuance by any state securities commission of any stop
order suspending the qualification or exemption from
qualification of any of the Securities for offering or sale,
or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory
authority for such purpose and (ii) of the happening of any
event during the period referred to in Section 6(c) below
that makes any statement of a material fact made in the
Offering Memorandum untrue or that requires any additions to
or changes in the Offering Memorandum in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. The Company shall use
its best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption of any of
the Securities under any state securities or blue-sky laws
and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order
suspending the qualification or exemption of any of the
Securities under any state securities or blue-sky laws, the
Company shall use its best efforts to obtain the prompt
withdrawal or lifting of such order.
b. To furnish the Initial Purchasers as many copies
of the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchasers may
reasonably request. Subject to the Initial Purchasers'
compliance with its representations and warranties and
agreements set forth in Section 7 hereof, the Company
consents to the use of the Offering Memorandum, and any
amendments and supplements thereto required pursuant hereto,
by the Initial Purchasers in connection with Exempt Resales.
c. If, during such period (not exceeding the nine
month period following the date of this Agreement) as in the
opinion of counsel for the Initial Purchaser an Offering
Memorandum is required by law to be delivered in connection
with Exempt Resales by the Initial Purchasers, any event
relating to or affecting the Company or of which the Company
shall be advised in writing by the Initial Purchasers shall
occur which, in the Company's reasonable opinion, should be
set forth in a supplement to, or an amendment of, the
Offering Memorandum in order to make the Offering Memorandum
not misleading in the light of the circumstances when such
Offering Memorandum is delivered to an Eligible Purchaser,
the Company will, at its expense, prepare an appropriate
amendment or supplement to such Offering Memorandum so that
the Offering Memorandum, as so amended or supplemented, will
not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein, in light of the circumstances when the
Offering Memorandum is delivered to an Eligible Purchaser,
not misleading; provided that should such event relate
solely to the activities of any Initial Purchaser, then such
Initial Purchaser shall assume the expense of preparing and
furnishing any such amendment or supplement. In case any
Initial Purchaser is required to deliver an Offering
Memorandum after the expiration of nine months from the date
of this Agreement, the Company, upon such Initial
Purchaser's request, will furnish to the Initial Purchaser,
at such Initial Purchaser's expense, a reasonable quantity
of any such amendment or supplement referred to in this
Section 6(c).
d. To furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under the blue-sky laws of such
jurisdictions as the Initial Purchasers may designate,
provided that the Company shall not be required to register
or qualify as a foreign corporation or dealer in securities,
to file any consents to service of process under the laws of
any jurisdiction, or to meet any other requirements deemed
by the Company to be unduly burdensome.
e. So long as any of the Securities remain
outstanding and during any period in which the Company is
not subject to Section 13 or 15(d) of the Exchange Act, to
make available to any holder of Securities in connection
with any sale thereof and any prospective purchaser of such
Securities from such holder, the information ("Rule 144A
Information") required by Rule 144A(d)(4) under the
Securities Act.
f. To obtain the approval of the Depositary Trust
Company ("DTC") for "book-entry" transfer of the Securities
of each series, and to comply with all of its agreements set
forth in the representation letter of the Company to DTC
relating to the approval of the Securities by DTC for "book-
entry" transfer.
g. Not to sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) that would be integrated with
the sale of the Securities to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require
the registration of any such sale of the Securities under
the Securities Act.
h. None of the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial
Purchasers) will engage in any directed selling efforts (as
that term is defined in Regulation S under the Securities
Act) with respect to the Securities sold pursuant to
Regulation S, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Initial
Purchasers) will comply with the offering restrictions of
Regulation S with respect to those Securities sold pursuant
thereto.
i. Until the expiration of two years after the
original issuance of the Securities, the Company will not,
and will cause its Affiliates not to, purchase or agree to
purchase or otherwise acquire any Securities which are
"restricted securities" (as such term is defined in Rule
144(a)(3) under the Securities Act), whether as beneficial
owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the
ordinary course of business in unsolicited broker's
transactions) unless, promptly upon any such purchase, the
Company or any Affiliate shall submit such Securities to the
Trustee for cancellation.
7. Initial Purchaser's Representations and Warranties. Each
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Initial Purchaser represents and warrants to and agrees with the
Company, that:
a. It is a QIB or an Institutional Accredited
Investor, with such knowledge and experience in financial
and business matters as is necessary in order to evaluate
the merits and risks of an investment in the Securities.
b. It is not acquiring the Securities with a view to
any distribution (as such term is used under the Securities
Act) thereof or with any present intention of offering or
selling any of the Securities in a transaction that would
violate the Securities Act or the securities laws of any
state of the United States or any other applicable
jurisdiction.
c. It agrees that no form of general solicitation or
general advertising (within the meaning of Regulation D
under the Securities Act) has been or will be used by it or
any of its representatives in connection with the offer and
sale of the Securities pursuant hereto, including, but not
limited to, articles, notices or other communications
published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising.
d. It agrees that, in connection with Exempt Resales,
it will solicit offers to buy the Securities only from, and
will offer to sell the Securities only to, Eligible
Purchasers that agree that (x) the Securities purchased by
them may be resold, pledged or otherwise transferred only
(I) to the Company, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account
or for the account of a QIB in a transaction meeting the
requirements of Rule 144A under the Securities Act, (III) in
an offshore transaction (as defined in Rule 902 under the
Securities Act) meeting the requirements of Rule 904 of the
Securities Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (V) to an
Institutional Accredited Investor that, prior to such
transfer, furnishes the Trustee a signed letter
(substantially in the form of Appendix I to the Offering
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Memorandum) and, if such transfer is in respect of an
aggregate principal amount of Securities less than $100,000,
an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (VI) in
accordance with another exemption from the registration
requirements of the Securities Act (and based upon an
opinion of counsel acceptable to the Company) or (VII)
pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of
any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to
whom such Securities or an interest therein is transferred a
notice substantially to the effect of the foregoing.
e. It agrees that it will not offer, sell or deliver
any of the Securities in any jurisdiction outside the United
States, except pursuant to Regulation S under the Securities
Act.
The Initial Purchasers acknowledge that the Company
and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 hereof, counsel to the Company
and counsel to the Initial Purchasers will rely upon the accuracy
and truth of the foregoing representations and the Initial
Purchasers hereby consent to such reliance.
8. Conditions of the Initial Purchasers' Obligations. The
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obligations of the Initial Purchasers to purchase and pay for the
Securities shall be subject to the accuracy of the rep-
resentations and warranties made herein on the part of the
Company, to the performance by the Company of its obligations to
be performed hereunder prior to the Closing Date, and to the
following conditions:
a. The Company shall have furnished to the Initial
Purchaser the opinion of _________________, the Counsel of
the Company, dated the Closing Date, to the effect that:
(i) the Company is a corporation duly organized and
validly existing and in good standing under the laws of
Missouri and has due corporate power and authority to
own its properties and conduct its business as
described in the Offering Memorandum Prospectus, and is
duly qualified to conduct in __________ the businesses
in which it is engaged in those States, which are the
only States in which it is required to be so
qualified;
(ii) the Company has full power and authority to
execute the Indenture and to issue the Securities
thereunder, and the Indenture has been duly authorized,
executed and delivered by the Company, and constitutes
a valid and legally binding instrument by the Company
enforceable against the Company in accordance with its
terms;
(iii) the Securities and the Indenture have been duly
authorized, executed and issued by the Company and,
assuming due authentication thereof by the Trustee and
upon payment for and delivery of the Securities in
accordance with the terms of this Agreement, they will
constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the
Indenture;
(iv) the Company has full power and authority to
execute this Agreement and this Agreement has been duly
authorized, executed and delivered by the Company;
(v) the execution and delivery of the Indenture, the
Securities and this Agreement, and the fulfillment of
the terms thereof and hereof by the Company, will not
result in a breach of any of the terms or provisions
of, or constitute a default under any provision of, the
Company's articles of incorporation or by-laws or any
indenture, mortgage, deed of trust or other agreement
or instrument, of which such counsel has knowledge, to
which the Company is now a party or, to the best of
such counsel's knowledge, any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
activities or properties;
(vi) the provisions of the Securities and the Indenture
conform in all material respects as to legal matters to
the statements concerning them contained in the
Offering Memorandum under "______________" and
"________________________________________";
(vii) the franchises, permits and licenses under which
the Company operates in the States of Missouri,
________ and _____are adequate to permit the Company to
engage in the businesses which it presently conducts in
those States and do not contain any unduly burdensome
provisions; in those municipalities where the Company
operates without franchises or where expired franchises
have not been renewed, the lack of such franchises
does not materially affect the Company's operations
in such municipalities and no actions or proceedings
are pending or, to such counsel's knowledge, threatened
by such municipalities which would materially affect
the Company's operations;
(viii) it is not necessary in connection with the
offer, sale and delivery of the Securities to you and
(assuming such offer, sale and delivery are made in
compliance with the provisions of the Purchase
Agreement and in the manner contemplated by the
Offering Memorandum) to each subsequent purchaser to
register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of
1939, as amended; and
(ix) each document filed by the Company or any of its
subsidiaries with the Securities and Exchange
Commission ("Commission") pursuant to the Exchange Act,
and incorporated by reference in the Offering
Memorandum (except as to the financial statements and
schedules and other financial and statistical data
contained therein, as to which they need not express
any belief), at the time it was filed with the
Commission, complied as to form in all material
respects with the Exchange Act and the applicable
instructions, rules and regulations of the Commission
thereunder.
Such counsel's opinion set forth in paragraphs (ii) and
(iii) above may be subject to the qualifications that the
enforceability of the Company's obligations under the
Indenture and the Securities may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditor's rights generally, by general equitable principles
(regardless of whether such enforceability is considered in
a proceeding in equity or at law) and by an implied covenant
of good faith and fair dealing.
Such opinion shall also state that such counsel has no
knowledge of any litigation, pending or threatened, which
challenges the validity of the Securities, the Indenture, or
this Agreement, or which seeks to enjoin the performance of
the Company's obligations thereunder or which might have a
material adverse effect on the business, properties or
financial condition of the Company except as disclosed in or
contemplated by the Offering Memorandum.
In rendering such opinion, such counsel may rely as to
factual matters upon certificates or written statements from
others or other appropriate representatives of the Company
or upon certificates of public officials. In such opinion,
such counsel may state that while such counsel has examined
the Offering Memorandum, such counsel necessarily assumes
the correctness and completeness of the statements made and
information included therein and takes no responsibility
therefor, except insofar as such statements relate to such
counsel and as set forth in paragraph (vii) above.
Such counsel's opinion may further state that it is
addressed to the Initial Purchasers and is rendered solely
for their benefit and may not be relied upon in any manner
by any other person (other than _______________________ to
the extent stated in its opinion to the Initial Purchasers
as of the Closing Date) without such counsel's prior written
consent.
b. The Initial Purchasers shall have received from
____________, counsel for the Initial Purchasers, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, the
Offering Memorandum (together with any supplement thereto)
and other related matters as the Initial Purchaser may
reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
c. The Company shall have furnished to the Initial
Purchasers a certificate of the Company, signed by the
Chairman of the Board or the President and the principal
financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such
certificate have carefully examined the Offering Memorandum,
and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date; and
(ii) since the date of the most recent financial
statements included in the Offering Memorandum (exclusive of
any supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Offering Memorandum (exclusive of any supplement thereto).
d. At the Closing Date, ________________, independent
accountants shall have furnished to the Initial Purchasers a
letter or letters, dated as of the Closing Date, in form and
substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants'
" comfort letters" to underwriters with respect to the
financial statements and certain financial information
contained in or incorporated by reference into the Offering
Memorandum.
e. Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Offering
Memorandum, there shall not have been (i) any change or
decrease specified in the letter or letters referred to in
paragraph (d) of this Section 8 or (ii) any change, or any
development involving a prospective change, in or affecting
the business or properties of the Company the effect of
which is, in the judgment of the Initial Purchasers, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Offering Memorandum.
f. Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further
information, certificates and documents as the Initial
Purchasers may reasonably request.
If any of the conditions specified in this Section 8 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Initial Purchasers and counsel for the
Initial Purchasers, this Agreement and all obligations of the
Initial Purchasers hereunder may be canceled at, or at any time
prior to, the Closing Date by the Initial Purchasers. Notice of
such cancellation shall be given to the Company in writing or by
telephone or electronic transmittal confirmed in writing.
9. Reimbursement of Initial Purchasers' Expenses. If the sale
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of the Securities provided for herein is not consummated because
any condition to the obligations of the Initial Purchasers set
forth in Section 8 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Initial
Purchasers, the Company will reimburse the Initial Purchasers
severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have
been incurred by them in connection with the proposed purchase
and sale of the Securities.
10. Indemnification and Contribution.
---------------------------------
a. The Company agrees to indemnify and hold harmless
each Initial Purchaser, the directors, officers, employees
and agents of each Initial Purchaser and each person who
controls any Initial Purchaser within the meaning of either
the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law 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 a material fact
contained in the Offering Memorandum, 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 agrees to
reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by any Initial
Purchaser specifically for inclusion therein. This
indemnity agreement will be in addition to any liability
which the Company may otherwise have.
b. Each Initial Purchaser severally agrees to indemnify
and hold harmless the Company, each of its directors, each
of its officers, and each person who controls the Company
within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Initial Purchaser, but only with
reference to written information relating to such Initial
Purchaser furnished to the Company by or on behalf such
Initial Purchaser, specifically for inclusion in the
documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability
which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in
__________________ under the caption "____________" in the
Offering Memorandum constitute the only information
furnished in writing by the Initial Purchasers for inclusion
in the documents referred to in the foregoing indemnity, and
you, as the Initial Purchaser, confirm that such statements
are correct.
c. Promptly after receipt by an indemnified party under
this Section 10 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 10, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability
under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any
event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for
which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory
to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such
counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or
additional to those available to the indemnifying party;
(iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party.
An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an
unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding.
d. In the event that the indemnity provided in
paragraph (a) or (b) of this Section 10 shall be
unenforceable under the applicable law, the Company and the
Initial Purchasers agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with
investigating or defending same)(collectively "Losses") to
which the Company and one or more of the Initial Purchasers
may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and
by the Initial Purchasers from the offering of the
Securities. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the
Company and the Initial Purchasers shall contribute in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
and of the Initial Purchasers in connection with the
statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before
deducting expenses), as set forth on the cover page of the
Offering Memorandum. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue
statement of a material fact or omission to state a material
fact relates to information provided by such indemnifying
party or the indemnified party and each such party's rela-
tive intent, knowledge, access to information and oppor-
tunity to correct or prevent such untrue statement or
omission. The Company and the Initial Purchasers agree that
it would not be just and equitable if contributions were
determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section
10, each person who controls an Initial Purchaser within the
meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as
such Initial Purchaser, and each person who controls the
Company within the meaning of either the Securities Act or
the Exchange Act, and each director of the Company shall
have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this
paragraph (d). The obligations of the Initial Purchasers to
contribute hereunder are several in proportion to their
respective obligations and not joint.
11. Termination. This Agreement shall be subject to termination
------------
in the absolute discretion of the Initial Purchasers, by notice
given to the Company prior to delivery of and payment for the
Securities, if prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the
New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange;
(ii) a banking moratorium shall have been declared by Federal,
Missouri or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is
such as to make it, in the judgment of the Initial Purchasers,
impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Offering
Memorandum.
12. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Initial
Purchasers set forth in or made pursuant to this Agreement shall
remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser or the Company or
any of the officers, directors or controlling persons referred to
in Section 10 hereof, and shall survive delivery of and payment
for the Securities. The provisions of Sections 9 and 10 hereof
shall survive the termination or cancellation of this Agreement.
13. Notices. All communications hereunder shall be in writing
--------
and effective only on receipt, and, if sent to an Initial
Purchaser, will be mailed, delivered or electronically
transmitted and confirmed, to such Initial Purchaser at the
address set forth above; or, if sent to the Company, shall be
mailed, delivered or electronically transmitted it at 0000
Xxxxxxxx Xxxxxx, Xxxx Xxxxxx Xxx 000, Xx. Xxxxx, Xxxxxxxx 00000;
attention of____________________.
14. Successors. This Agreement shall inure to the benefit of
-----------
and be binding upon the parties hereto and their respective
successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective
successors and the controlling persons, directors and officers
referred to in Section 10, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective
successors and said controlling persons, directors and officers
and for the benefit of no other person, firm or corporation.
No purchaser of any Securities from any Initial Purchaser
shall be deemed to be a successor by reason merely of such
purchase.
15. Applicable Law. The rights and duties of the parties
----------------
hereto under this Agreement shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the
State of New York.
16. Counterparts. This Agreement may be executed in any number
-------------
of counterparts and by different parties hereto on separate
counterparts, each such counterpart, when so executed and
delivered, shall be deemed to be an original, and all of such
counterparts shall, taken together, constitute one and the same
agreement.
By signature below in the space provided below for that
purpose, each Initial Purchaser indicates acceptance hereof,
whereupon this letter and acceptance shall constitute a binding
agreement between the Company and the several Initial Purchasers
in accordance with its terms.
Very truly yours,
AMEREN CORPORATION
By:
-------------------------------
Name:
Title:
Accepted and delivered as of
the date first above written
[Names of Initial Purchasers]
By:
-------------------------------
Name:
Title:
Schedule I
----------
Ameren Corporation
_____% Series _ Senior Notes due ____
Principal Amount
Initial Purchaser Securities
----------------- ----------
_____________________ . . . . $___________
_____________________ . . . . $___________
$
TOTAL . . . . . . . . . ===========
