Exhibit 1.1
UNION ELECTRIC COMPANY
SENIOR SECURED DEBT SECURITIES
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UNDERWRITING AGREEMENT
March 5, 2003
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of
the several Underwriters
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time, Union Electric Company d/b/a AmerenUE, a Missouri
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each, a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its senior secured debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities"). The Designated
Securities will be secured by a series of the Company's First Mortgage Bonds
specified in Schedule II to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "First Mortgage Bonds"), in the same aggregate
principal amount and having the same stated interest rate and maturity date and
other terms as the Designated Securities to which they relate.
The terms and rights of any particular issuance of Designated Securities
(including the First Mortgage Bonds securing such Designated Securities) shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the Indenture dated as of August 15, 2002 (as it may be supplemented or amended,
the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The First Mortgage Bonds will be issued under and pursuant to the
Company's Indenture of Mortgage and Deed of Trust, dated June 15, 1937, executed
by the Company to The Bank of New York, as successor trustee (the "Mortgage
Trustee" and, together with the Trustee, the "Trustees"), as heretofore amended
and supplemented by various supplemental indentures, and as to be further
amended and supplemented by a supplemental indenture relating to the particular
series of First Mortgage Bonds specified in Schedule II to the applicable
Pricing Agreement (with respect to such Pricing Agreement, the "Supplemental
Indenture"). The term "Mortgage," as used herein, shall be
deemed to refer to such Indenture of Mortgage and Deed of Trust as so amended
and supplemented.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the title and aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the series of First Mortgage
Bonds securing such Designated Securities, the Supplemental Indenture relating
to such First Mortgage Bonds, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, if any, and
the principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in or pursuant to the Indenture and the
registration statement and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Underwriting Agreement and each Pricing Agreement shall
be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company meets the requirements for the use of a
registration statement on Form S-3 under the Securities Act of 1933, as amended
(the "Act"), and a registration statement on Form S-3 (File Nos. 333-87506 and
333-87506-01) (together with any pre-effective amendments thereto, the "Initial
Registration Statement") in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives and, excluding exhibits to
the Initial Registration Statement, but including all documents incorporated by
reference in the prospectus contained therein, to the Representatives for each
of the other Underwriters, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Act, which became effective upon filing, and except as
otherwise set forth therein, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued
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and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or any preliminary prospectus supplement used in connection with the
offering and sale of Designated Securities, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but excluding
any Form T-1, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, and including any
information omitted from the Initial Registration Statement at the time such
part of the Initial Registration Statement became effective but that is deemed
to be part of the Initial Registration Statement at such time pursuant to
paragraph (b) of Rule 430A under the Act are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Underwriting Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of its date);
(b) The documents incorporated by reference in the 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 Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and 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 not misleading; and any 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 Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder 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 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 Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
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(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, 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, 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
Company by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Designated Securities;
(d) The financial statements of the Company filed as part of or
incorporated by reference in the Registration Statement and the Prospectus
fairly present the financial condition of the Company as of the dates indicated
and the results of its operations and cash flows for the periods therein
specified and have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise indicated therein;
(e) The Company has not 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 Prospectus, (i) the Company has
not incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are material
to the Company, and (ii) there has not been 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, in each case, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; the Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not reasonably be expected to have
a Material Adverse Effect (as defined herein); and the Company has no
majority-owned subsidiaries (within the meaning of Rule 1-02 (n) of Regulation
S-X under the Act) except for Union Electric Development Corporation;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Securities have been duly authorized by the Company, and,
when Designated Securities are issued and delivered pursuant to this
Underwriting Agreement and
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the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Company entitled to the security afforded by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized by the Company and duly qualified under the
Trust Indenture Act and, at the Time of Delivery (as defined in Section 4
hereof), the Indenture will be duly executed and delivered by the Company and
will be a valid and legally binding instrument, enforceable against the Company
in accordance with its terms, except as may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization and other similar laws
relating to or affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law) and (iii)
requirements of reasonableness, good faith and fair dealing (collectively, the
"Exceptions"); and the Indenture conforms, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The First Mortgage Bonds have been duly authorized by the
Company, and, when the First Mortgage Bonds have been issued and delivered
pursuant to the Mortgage and the Indenture, such First Mortgage Bonds will have
been duly executed, authenticated, issued and delivered, will constitute valid
and legally binding obligations of the Company entitled to the security afforded
by the Mortgage, which will be substantially in the form filed as an exhibit to
the Registration Statement, and will be owned and held by the Trustee, in trust,
for the benefit of the holders of the related Designated Securities; the
Mortgage has been duly authorized by the Company and duly qualified under the
Trust Indenture Act and, at the Time of Delivery for the related Designated
Securities, the Mortgage (as supplemented and amended by the Supplemental
Indenture relating to the First Mortgage Bonds) will be duly executed and
delivered by the Company and will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its terms,
subject to the laws of the States of Missouri, Illinois and Iowa affecting the
remedies for the enforcement of the security provided for therein and except as
may be limited by the Exceptions; and the Mortgage conforms, and the First
Mortgage Bonds will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the related Designated
Securities;
(j) Substantially all of the permanent, fixed properties of the
Company are owned in fee simple or are held under valid leases, in each case
subject only to the liens of current mortgages (including the lien of the
Mortgage) and "permitted liens" and "judgment liens" as defined in the Mortgage;
such minor imperfections of title and encumbrances, if any, which are not
substantial in amount, do not materially detract from the value or marketability
of the properties subject thereto and do not materially impair the title of the
Company to its properties or its right to use its properties in connection with
its business as presently conducted; and, based on the Company's balance sheet
as of September 30, 2002, approximately 4% of the Company's property and plant
was located in the States of Illinois and Iowa;
(k) This Underwriting Agreement has been, and the Pricing
Agreement applicable to any Designated Securities, at the date thereof, will be,
duly authorized, executed and delivered by the Company;
(l) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company incorporated by reference in the
Registration Statement and the Prospectus, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder;
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(m) The issue of the First Mortgage Bonds and the issue and sale
of the Securities and the compliance by the Company with all of the provisions
of the Securities, the Indenture, the First Mortgage Bonds, the Mortgage, this
Underwriting Agreement and any Pricing Agreement, 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 indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the Restated
Articles of Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; each of the Missouri
Public Service Commission and the Illinois Commerce Commission has issued, or as
of the date of the Pricing Agreement applicable to any Designated Securities,
will have issued, its final order (collectively, the "Regulatory Orders")
authorizing the issuance and sale of the Designated Securities by the Company
and the issuance of the First Mortgage Bonds by the Company; the Regulatory
Order of the Missouri Public Service Commission is, or as of the date of the
Pricing Agreement applicable to any Designated Securities, will be, in full
force and effect and not subject to appeal or rehearing and is, or as of the
date of the Pricing Agreement applicable to any Designated Securities, will be,
sufficient to authorize the transactions contemplated by this Underwriting
Agreement; the Regulatory Order of the Illinois Commerce Commission is, or as of
the date of the Pricing Agreement applicable to any Designated Securities, will
be, in full force and effect and is, or as of the date of the Pricing Agreement
applicable to any Designated Securities, will be, sufficient to authorize the
transactions contemplated by this Underwriting Agreement; the Securities and the
First Mortgage Bonds issued pursuant to the Regulatory Order of the Illinois
Commerce Commission shall be valid and binding in accordance with their
respective terms notwithstanding such Regulatory Order being later vacated,
modified or otherwise held to be invalid by such Commission; and no other
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body, including, without limitation,
any regulatory body of the State of Iowa, is required for the issue and sale of
the Securities and the issue of the First Mortgage Bonds by the Company, or the
consummation by the Company of the transactions contemplated by this
Underwriting Agreement or any Pricing Agreement or the Indenture or the
Mortgage, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(n) The statements set forth in the Prospectus as amended or
supplemented with respect to any Designated Securities under the captions
"Description of Senior Secured Notes," "Description of Senior Secured Debt
Securities" and "Description of First Mortgage Bonds", insofar as they purport
to constitute a summary of the terms of the Securities, the Indenture, the
Mortgage and the First Mortgage Bonds, and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate, complete
and fair;
(o) The Company is not (i) in violation of its Restated Articles
of Incorporation or By-laws, (ii) to the best knowledge of the Company, after
due inquiry, in violation of any law, ordinance, administrative or governmental
rule or regulation applicable to the Company, the violation of which would
reasonably be expected to have a material adverse effect on the general affairs,
management, financial position, stockholder's equity or results of operations of
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the Company (a "Material Adverse Effect"), or of any decree of any court or
governmental agency or body having jurisdiction over the Company, or (iii) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, which default would reasonably
be expected to have a Material Adverse Effect;
(p) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a party or of which
any property of the Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a Material Adverse Effect;
and, to the Company's knowledge, no such proceedings are threatened by
governmental authorities or others;
(q) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(r) Except as set forth in the Prospectus, the Company (i) is in
compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except as to clauses (i), (ii) and (iii) where
such non-compliance with Environmental Laws or failure to receive, or comply
with the terms and conditions of, required permits, licenses or other approvals
would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Designated Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of
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business on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to make no
further amendment or any supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for such Designated
Securities which shall be disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities, and during
such same period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or suspending
the use of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the withdrawal of such
order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined in Section 14 hereof) next succeeding the date of this
Underwriting Agreement and from time to time, including the New York Business
Day next succeeding the date of any Pricing Agreement, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York
City as amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities and if at such time
any event shall have occurred 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 necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
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(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for any Designated Securities and continuing to and including the
later of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives, and (ii) the Time
of Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company which mature more
than one year after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives;
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Underwriting Agreement or the date of the applicable Pricing Agreement, as
applicable, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
(g) The Company will apply the net proceeds from the sale of any
Designated Securities for the purposes set forth in the Prospectus as amended or
supplemented to reflect the offering and sale of such Designated Securities.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Underwriting Agreement, any Pricing
Agreement, the Indenture, the Mortgage, any blue sky surveys, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities and the First Mortgage Bonds; (vii) the fees and
expenses of the Trustees and any agent of the Trustees and the fees and
disbursements of counsel for the Trustees in connection with the Indenture, the
Securities, the Mortgage and the First Mortgage Bonds; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 6. It is
understood, however, that, except as provided in this Section 6, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and transfer taxes on resale of any of the
Securities by them.
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7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Underwriting Agreement or the date of
such Pricing Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the matters covered in paragraphs
(iii), (iv), (v), (xiii) and (xvi) of subsection (c) below as well as such other
related matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) Xxxxxx X. Xxxxxxxx, Esq., Vice President Regulatory Policy,
General Counsel and Secretary of the Company or other counsel for the Company
reasonably satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Missouri, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented; and the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect;
(ii) To such counsel's knowledge and other than as described in
the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company is a party or of
which any property of the Company is the subject which, if determined
adversely to the Company, would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; to such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or others; there is no franchise, contract or other document
of a character required to be described in the Registration Statement or
the Prospectus, or to be filed as an exhibit (either thereto or to a
document incorporated therein by reference),
10
that is not described or filed as required; and the statements included
or incorporated by reference in the Prospectus as amended or supplemented
describing any legal proceedings or material contracts or agreements
relating to the Company fairly summarize such matters;
(iii) This Underwriting Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized, executed
and delivered by the Company;
(iv) The Designated Securities have been duly authorized,
executed, and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with
the terms hereof and the Pricing Agreement, will constitute valid and
legally binding obligations of the Company, except as may be limited by
the Exceptions, and will be entitled to the benefit of the security
afforded by the Indenture;
(v) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument of
the Company, enforceable against the Company in accordance with its
terms, except as may be limited by the Exceptions; and the Indenture has
been duly qualified under the Trust Indenture Act;
(vi) The First Mortgage Bonds have been duly authorized, executed
and issued by the Company and, assuming due authentication thereof by the
Mortgage Trustee and upon delivery in accordance with the terms of the
Mortgage and the Indenture, will constitute valid and legally binding
obligations of the Company, except as may be limited by the Exceptions,
and will be entitled to the benefit of the security afforded by the
Mortgage;
(vii) The Mortgage (including the Supplemental Indenture relating
to the First Mortgage Bonds) has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance
with its terms, subject to provisions of the Mortgage being limited by
the laws of the States of Missouri, Illinois or Iowa affecting the
remedies for the enforcement of the security provided for therein, which
laws do not, in such counsel's opinion, make inadequate remedies
necessary for the realization of the benefits of such security and except
as may be limited by the Exceptions; and the Mortgage has been duly
qualified under the Trust Indenture Act;
(viii) The issue of the First Mortgage Bonds and the issue and
sale of the Designated Securities and the compliance by the Company with
the provisions of the Designated Securities, the Indenture, the First
Mortgage Bonds, the Mortgage, this Underwriting Agreement and the Pricing
Agreement with respect to the Designated Securities 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 indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject,
which would reasonably be expected to have a Material Adverse Effect, nor
will such actions result in any violation of the provisions of the
Restated
11
Articles of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties;
(ix) Each of the Missouri Public Service Commission and the
Illinois Commerce Commission has duly authorized the issue and sale of
the Designated Securities by the Company and the issue of the First
Mortgage Bonds by the Company pursuant to the Regulatory Orders; the
Regulatory Orders are sufficient for the issue and sale of the Designated
Securities by the Company as contemplated by this Underwriting Agreement
and the issue of the First Mortgage Bonds by the Company as contemplated
by the Mortgage and are in full force and effect; the Regulatory Order of
the Missouri Public Service Commission is not subject to appeal or
rehearing; the Designated Securities and the First Mortgage Bonds issued
pursuant to the Regulatory Order of the Illinois Commerce Commission
shall be valid and binding in accordance with their respective terms
notwithstanding such Regulatory Order being later vacated, modified or
otherwise held to be invalid by such Commission; no other consent,
approval, authorization, order, registration or qualification of or with
any court or governmental agency or body, including, without limitation,
any regulatory body of the State of Iowa, is required for the issue and
sale of the Designated Securities and the issue of the First Mortgage
Bonds by the Company or the consummation by the Company of the
transactions contemplated by this Underwriting Agreement or such Pricing
Agreement or the Indenture or the Mortgage, except such as have been
obtained under the Act and the Trust Indenture Act and except such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or blue sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters (as to which such counsel need express no
opinion);
(x) The Company is not (i) in violation of its By-laws or Restated
Articles of Incorporation or (ii) to such counsel's knowledge, in default
in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party or
by which it or any of its properties may be bound;
(xi) The Company is not an "investment company", as such term is
defined in the Investment Company Act;
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules and other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and such counsel has no reason to believe that
any of such documents, when they became effective or were so filed, as
the case may be, contained, in the case of a registration statement which
became effective under the 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 not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act
with the Commission, an untrue statement of a material fact or omitted to
state a material fact
12
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading;
(xiii) The Registration Statement, at its effective date, and the
Prospectus as amended or supplemented, as of the date it was filed with
the Commission, and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities, at their respective effective dates or respective dates of
filing, as applicable (other than the financial statements and related
schedules and other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion), comply as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder; although
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in subsection
(xvi) of this Section 7(c) and those that relate to such counsel, 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 prior to the Time of Delivery (other than the financial
statements and related schedules and other financial data included or
incorporated by reference therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date and on
the date of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time of Delivery (other than the financial statements and related
schedules and other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion) 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; the
Registration Statement has become, and as of the date of such opinion is,
effective under the Act; any required filing of the Prospectus as amended
or supplemented, pursuant to Rule 424(b) under the Act has been made in
the manner and within the time period required by the applicable
paragraph of such Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or, to the best
knowledge of such counsel, threatened under Section 8 of the Act;
(xiv) The delivery to the Trustee in the State of Missouri of the
First Mortgage Bonds is effective to perfect the security interest in the
First Mortgage Bonds on the date of such delivery and, assuming that the
Trustee maintains possession of the First Mortgage Bonds in the State of
Missouri, such security interest, insofar as it secures the related
Designated Securities, is not subject to any present or future prior
liens;
(xv) Except as otherwise set forth in the Prospectus as amended or
supplemented, the Company has such valid franchises, certificates of
convenience and necessity, operating rights, licenses, permits, consents,
approvals, authorizations and orders of governmental bodies, political
subdivisions or regulatory authorities then obtainable, free from unduly
burdensome restrictions, as are necessary for the acquisition,
construction, ownership, maintenance and operation of the properties now
owned by it and the conduct of the business now carried on by it as
described in the
13
Registration Statement and the Prospectus as amended or supplemented,
with minor exceptions that, in the opinion of such counsel, do not
interfere with the practical operation of the Company's business, and, to
the best of such counsel's knowledge, the Company is not in default or
violation thereof in any material respect and is carrying on its business
in substantial compliance therewith and with all applicable federal,
state and other laws and regulations that are material to the Company;
(xvi) The statements set forth in the Prospectus as amended or
supplemented with respect to the Designated Securities under the captions
"Description of Senior Secured Debt Securities," "Description of First
Mortgage Bonds" and "Description of Senior Secured Notes" insofar as they
purport to constitute a summary of the terms of the Designated Securities
are accurate summaries in all material respects;
(xvii) The principal plants and other important units of property
of the Company are held by the Company in fee simple or are located on
real property held by the Company in fee simple, subject only to the lien
of the Mortgage and to permitted and judgment liens as defined in the
Mortgage, except that (a) a portion of the Osage plant reservoir, certain
facilities at the Sioux plant, certain substations and most of the
Company's transmission and distribution lines and gas mains are situated
on lands occupied under leases, easements, franchises, licenses or
permits; (b) the United States and/or State of Missouri own, or have or
may have, paramount rights with respect to, certain lands lying in the
bed of the Osage River or located between the inner and outer harbor
lines of the Mississippi River, on which certain generating and other
properties of the Company are located; and (c) the United States and/or
State of Illinois and/or State of Iowa and/or city of Keokuk, Iowa, own,
or have or may have, paramount rights with respect to, certain lands
lying in the bed of the Mississippi River on which a portion of the
Keokuk plant is located. Such counsel shall state that such exceptions do
not in such counsel's opinion materially affect the title of the Company
to its properties or its right to use its properties in connection with
its business as presently conducted;
(xviii) The Mortgage constitutes a valid and direct first lien on
substantially all the properties and franchises of the Company not
expressly excepted from the lien thereof, subject to permitted liens as
defined in the Mortgage and judgment liens with respect to which cash in
the amount thereof has been deposited with the Mortgage Trustee; provided
that the lien of the Indenture on real property of the Company acquired
after the date of recordation of the supplemental indenture dated as of
August 15, 2002 in each county where the Company owns property or
conducts business, with respect to properties in Illinois or Iowa, and
after the date of filing such supplemental indenture with the Secretary
of State of the State of Missouri, with respect to properties in
Missouri, may not be effective in some cases against creditors or
purchasers for value without notice whose rights to such property attach
prior to the recording of the Supplemental Indenture;
(xix) The statements in the Prospectus as amended or supplemented
that are stated therein 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; and
(xx) No recordation, registration or filing of the Indenture or
any supplemental indenture or instrument of further assurance is
necessary in the States of
14
Missouri, Illinois or Iowa to make effective the security interest
intended to be created by the Indenture with respect to the First
Mortgage Bonds.
Such opinion shall also state that such counsel has no knowledge of any
litigation, pending or threatened, that challenges the validity of the
Designated Securities, the Indenture, the First Mortgage Bonds, the Mortgage or
this Underwriting Agreement or the Pricing Agreement, or that seeks to enjoin
the performance of the Company's obligations hereunder or thereunder or that
might have a Material Adverse Effect except as disclosed in or contemplated by
the Prospectus as amended or supplemented.
Such counsel's opinion with respect to title of the Company to its
properties and the rank of the lien of the Mortgage and the Supplemental
Indenture shall state that with regard to such properties located in Illinois,
it is based on consultations with Illinois counsel and may be, with regard to
its properties owned in fee, based in whole or in part on title searches made on
recent dates by title abstract companies, by other attorneys or real estate
employees of an affiliate of the Company, and such counsel's opinion with regard
to such other properties may be based in whole or in part on title examinations
made and title opinions rendered at various times by other attorneys regarded by
him as competent, and, with regard to all properties of the Company, upon his
general familiarity with titles to properties of the Company; provided that such
counsel's opinion is stated to be in reliance upon such title searches or
opinions. Such counsel shall also state that such searches and opinions are
satisfactory in scope and form to such counsel and that in such counsel's
opinion, the Underwriters are justified in relying thereon. Copies of such title
searches or opinions shall be furnished to counsel for the Underwriters upon
their reasonable request.
In rendering such opinion, such counsel may rely (i) as to factual
matters, upon certificates or written statements from appropriate
representatives of the Company or upon certificates of public officials, and
(ii) as to matters involving the application of the laws of the State of New
York, upon the opinion of counsel for the Underwriters delivered to the
Representatives pursuant to Section 7(b) hereof.
Such counsel's opinion may further state that it is addressed to the
Representatives and is rendered solely for their benefit and may not be relied
upon in any manner by any other person (other than counsel for the Underwriters
as to certain matters involving the application of the laws of the States of
Missouri, Illinois and Iowa in its opinion to the Underwriters at the Time of
Delivery) without such counsel's prior written consent.
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, PricewaterhouseCoopers LLP shall have furnished to the
Representatives a letter, dated the date of such Pricing Agreement, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and in form and substance satisfactory to the Representatives;
(e) (i) The Company shall not have sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as amended
or
15
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities (x) the
Company has not incurred any liabilities or obligations, direct or contingent,
or entered into any transactions, not in the ordinary course of business, that
are material to the Company and (y) there shall not have been any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement relating to
the Designated Securities, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented relating
to the Designated Securities;
(f) On or prior to the Time of Delivery, the Representatives shall
have received satisfactory evidence that the Designated Securities have received
ratings of A- or higher by Standard & Poor's and A1 or higher by Xxxxx'x
Investors Service, Inc., and that such ratings are in effect at the Time of
Delivery;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally by the
Commission, the New York Stock Exchange or The Nasdaq Stock Market or any
setting of minimum or maximum prices for trading thereon; (ii) a suspension or
material limitation in trading in the Company's securities by the Commission,
The New York Stock Exchange, the American Stock Exchange or The Nasdaq Stock
Market; (iii) a general moratorium on commercial banking activities declared by
Federal, New York State or Missouri State authorities or a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States; (iv) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war; or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any event specified in clause (iv) or (v)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Securities on
the terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Underwriting Agreement or next
succeeding the date of the Pricing Agreement, as applicable;
16
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this
Section and as to such other matters as the Representatives may reasonably
request; and
(k) The Regulatory Orders shall be in full force and effect at the
Time of Delivery.
If any of the events specified in Sections 7(e), 7(g) or 7(h) hereof
shall have occurred, the Pricing Agreement relating to the Designated Securities
may be terminated by the Representatives on notice to the Company at any time on
or prior to the Time of Delivery and upon such notice being given, the parties
hereto and thereto shall be released and discharged from their respective
obligations hereunder and thereunder (except for the liability of the Company
pursuant to Sections 6 or 11 hereof and the obligations of the parties hereto
and thereto pursuant to Section 8 hereof). Notwithstanding any such termination,
the provisions of Sections 6, 8, 10, 11, 12, 13 and 15 hereof shall remain in
full force and effect.
8. (a) The Company will 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 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 any Preliminary Prospectus, the Registration
Statement (or, in the case of any action arising out of the issuance and sale of
the Securities, in any prior registration statement to which the Prospectus, as
a combined prospectus under Rule 429 under the Act, relates), the Prospectus as
amended or supplemented 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, 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 the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented 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 Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented 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
17
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 any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented 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 Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim 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 the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it 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. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in any such 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 or other indemnified parties
that 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 any such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. 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 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 a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified
18
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the 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 Company on the one hand and
the Underwriters of the Designated Securities 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 Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by 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 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 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 applicable Designated 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 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 Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or
19
another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Designated Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Designated Securities, the
Representatives or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Underwriting Agreement shall include any person
substituted under this Section 9 with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Underwriting Agreement or made by or on behalf of them, respectively,
pursuant to this Underwriting Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling
20
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Sections 6 and 8 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Underwriting Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters, the Company
and, to the extent provided in Sections 8 and 10 hereof, the officers and
directors of the Company and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Underwriting Agreement or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business. As used herein, "New York Business Day"
shall mean any day other than Saturday, Sunday or any day on which banks located
in the State of New York are authorized or obligated to close.
15. This Underwriting Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
21
16. This Underwriting Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto and thereto 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.
22
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof.
Very truly yours,
Union Electric Company
d/b/a AmerenUE
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
Accepted as of the date hereof:
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of
the several Underwriters
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
23
ANNEX I
PRICING AGREEMENT
[Date]
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of
the several Underwriters
named in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Union Electric Company d/b/a AmerenUE, a Missouri corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated __________, 2003 (the "Underwriting
Agreement"), between the Company on the one hand and BNY Capital Markets, Inc.
and X.X. Xxxxxx Securities Inc., as Representatives of the several Underwriters
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Union Electric Company
d/b/a AmerenUE
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of
the several Underwriters
named in Schedule I hereto
By: X.X. Xxxxxx Securities Inc.
By:
-------------------------------------
Name:
Title:
I-2
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
---------
Total ........................................... $
=========
I-3
SCHEDULE II
Title of Designated Securities: % Senior Secured Notes due 20
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued amortization[, if any,] from
to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization [, if any,] from to ]
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the offices of
DTC in New York, New York or its designated custodian.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time),
First Mortgage Bonds:
Supplemental Indenture relating to First Mortgage Bonds:
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 20..]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
I-4
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and if]
redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on in each of
the years through at 100% of their principal amount plus accrued
interest[, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional [$ ] principal amount of
Designated Securities in the years through at 100% of their principal
amount plus accrued interest.]
[IF DESIGNATED SECURITIES ARE EXTENDABLE DEBT SECURITIES, INSERT--
Extendable provisions:
Designated Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
The initial annual interest rate will be %, and thereafter the annual
interest rate will be adjusted on , and to a rate not less than % of the
effective annual interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
[IF DESIGNATED SECURITIES ARE FLOATING RATE DEBT SECURITIES, INSERT--
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter will be
adjusted [monthly] [on each , , and ] [to an annual rate of % above the
average rate for -year [month][securities][certificates of deposit]
issued by and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield equivalent of the
weekly average per annum market
I-5
discount rate for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) the then current weekly average per annum
secondary market yield for -month certificates of deposit over (ii) the
then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); [from and thereafter the
rate will be the then current interest yield equivalent plus % of
Interest Differential].]
Defeasance provisions:
Closing location for delivery of Designated Securities:
New York, New York
Additional Closing Conditions:
Names and addresses of Representatives:
Designated Representatives:
BNY Capital Markets, Inc.
X.X. Xxxxxx Securities Inc.
Address for Notices, etc.:
BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
[Other Terms]*:
--------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Designated Securities should be
set forth, or referenced to an attached and accompanying description, if
necessary, to ensure agreement as to the terms of the Designated Securities to
be purchased and sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus Supplement for the
offering.
I-6
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company within the meaning of the Act and the applicable rules and
regulations adopted by the Commission;
(ii) In their opinion, the financial statements and financial
statement 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 applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the related rules and
regulations;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus
and/or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference into the Prospectus;
(iv) The unaudited selected financial information with respect to
the results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on
Form 10-K for the most recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the audited consolidated
financial statements for five such fiscal years included or incorporated
by reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and
on the basis of limited procedures specified in such letter nothing came
to their attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 302, 402 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company, inspection of the minute books of
the Company since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed statements of income,
balance sheets and statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and
regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus
or included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause (A)
and any unaudited income statement data and balance sheet items
included in the Prospectus and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in the
Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the rules
and regulations adopted by the Commission thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
capital stock (other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the long-term debt of the Company,
or any decreases in net current assets or stockholder's equity or
other items specified by the Representatives, or any increases in
any items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in clause (E) there were any
decreases in net revenues or operating
II-2
profit or the total or per share amounts of net income or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with the comparable period of the preceding year and with any
other period of corresponding length specified by the
Representatives, except in each case for increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
II-3
