EXHIBIT 1(a)
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AQUILA, INC.
SENIOR NOTES
FORM OF PURCHASE AGREEMENT
[Date]
[Name(s) of Co-Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto
c/o [Name]
[Address]
Ladies and Gentlemen:
AQUILA, INC., a Delaware corporation (the "COMPANY"), proposes to
issue and sell the principal amount of its securities identified in Schedule II
hereto (the "SECURITIES") to the several Underwriters named in SCHEDULE I hereto
(the "UNDERWRITERS"). The Securities will be issued pursuant to the terms of an
indenture dated as of August 24, 2001, as supplemented (the "INDENTURE"),
between the Company and BANKONE TRUST COMPANY, N.A., as trustee (the "TRUSTEE").
The Company wishes to confirm as follows its agreement with you
(the "REPRESENTATIVES") and the other several Underwriters on whose behalf you
are acting, in connection with the several purchases of the Securities by the
Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, (the "ACT"), and the Trust Indenture Act of 1939, as amended (the
"TRUST INDENTURE ACT"), and the rules and regulations of the Commission
thereunder, a registration statement on Form S-3 under the Act (the
"REGISTRATION STATEMENT"), including a prospectus subject to completion relating
to the Securities. The term "REGISTRATION STATEMENT" as used in this Agreement
means the registration statement (including all financial schedules and
exhibits, excluding Form T-1), as supplemented or amended prior to the execution
of this Agreement. The term "PROSPECTUS" as used in this Agreement means the
prospectus in the form included in the Registration Statement, as amended and
supplemented by the prospectus supplement relating to the Securities (the
"PROSPECTUS SUPPLEMENT") in the form filed with the Commission pursuant to Rule
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424(b). The term "PRELIMINARY PROSPECTUS" as used in this Agreement means any
preliminary prospectus included in the Registration Statement or filed with the
Commission under Rule 424(a) or any preliminary prospectus supplement to the
prospectus included in the Registration Statement and filed with the Commission
under Rule 424(b) and as such prospectus or prospectus supplement shall have
been amended from time to time prior to the date of the Prospectus. Any
reference in this Agreement to, the Registration Statement, any Preliminary
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act, as of the date of the Registration Statement, any
Preliminary Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be, and any reference to any amendment or supplement to the Registration
Statement, any Preliminary Prospectus, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") which, upon filing, are incorporated by reference therein, as required by
paragraph (b) of Item 12 of Form S-3. As used herein, the term "INCORPORATED
DOCUMENTS" means the documents which at the time are incorporated by reference
in the Registration Statement, any Preliminary Prospectus, the Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not jointly,
to purchase from the Company, at a purchase price of equal to ____% of the
principal amount thereof, the principal amount of Securities set forth opposite
the name of such Underwriter in Schedule I hereto (or such principal amount of
Securities increased as set forth in Section 10 hereof).
3. TERMS OF PUBLIC OFFERING. The Company has been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Securities and initially to offer the Securities upon the terms
set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery
to the Underwriters of and payment for the Securities shall be made at the
office of Milbank, Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, XX 00000, at 10:00 A.M., New York City time, on _______ (the "CLOSING
DATE"). The place of closing for the Securities and the Closing Date may be
varied by agreement between you and the Company.
Certificates for the Securities to be purchased hereunder shall
be for the accounts of the Underwriters as you shall request prior to 9:30 A.M.,
New York City time, on the second business day preceding the Closing Date. The
certificates evidencing the Securities to be purchased hereunder shall be
delivered on the Closing Date against payment of the purchase price therefor by
wire transfer of immediately available funds. All references to certificates
mean one or more global securities registered in the name of The Depository
Trust Company or its nominee.
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5. AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters as follows:
(a) To prepare the Prospectus in relation to the Securities
in a form approved by the Representatives and to file the Prospectus Supplement
as required pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the delivery
of the Prospectus relating to the applicable 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 after the date of
this Agreement and prior to the Closing Date for such Securities which shall be
disapproved by the Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such amendment or
supplement after such Closing Date 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
such 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 or registration statement 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 by the
Commission of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
the 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 use promptly its reasonable efforts to obtain its withdrawal;
(b) The Company will furnish to each of you, and to counsel to
the Underwriters such number of copies as you may reasonably request of the
Registration Statement as originally filed with the Commission and of each
amendment and supplement thereto, including consents, financial statements and
all exhibits thereto;
(c) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each Preliminary Prospectus. The Company consents to the
use, in accordance with the provisions of the Act and with the securities or
Blue Sky laws of the jurisdictions in which the Securities are offered by the
several Underwriters and by dealers, prior to the date of the Prospectus, of
each Preliminary Prospectus so furnished by the Company.
(d) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the opinion
of counsel for the Underwriters a prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you
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may request. The Company consents to the use of the Prospectus and of any
amendment or supplement thereto in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which the
Securities are offered by the several Underwriters and by all dealers to whom
Securities may be sold, both in connection with the offering and sale of the
Securities and for such period of time thereafter as the Prospectus is required
by the Act to be delivered in connection with sales by any Underwriter or
dealer. If during such period of time any event shall occur that in the judgment
of the Company or in the opinion of counsel for the Underwriters is required to
be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus (or to file under the Exchange Act any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the Act or any other law, the Company will forthwith prepare and
file with the Commission an appropriate supplement or amendment thereto (or to
such document), and will expeditiously furnish to the Underwriters and dealers a
reasonable number of copies thereof. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus should be
amended or supplemented, the Company, if requested by you, will promptly issue a
press release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
(e) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the several Underwriters and by dealers
under the securities or Blue Sky laws of such jurisdictions as you may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such registration or qualification; provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option of the Company, Rule
158).
(g) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(h) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
paragraph (c) of Section 10 hereof or by notice given by you terminating this
Agreement pursuant to Section 10 hereof) or if this Agreement shall be
terminated by the Underwriters because of any failure or refusal on the part of
the Company to comply with the terms or fulfill any of the conditions of this
Agreement, the
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Company agrees to reimburse the Representatives for all out-of-pocket expenses
(including fees and expenses of counsel for the Underwriters) incurred by you
in connection herewith.
(i) The Company will apply the net proceeds from the sale of
the Securities substantially in accordance with the description set forth in the
Prospectus.
(j) For a period beginning on this date and ending on the
Closing Date, the Company will not, directly or indirectly, sell, contract to
sell, grant any option to purchase, issue any instrument convertible into or
exchangeable for, or otherwise transfer or dispose of, any debt securities of
the Company or any of its subsidiaries (each, a "SUBSIDIARY" and collectively
the "SUBSIDIARIES"), except with your prior consent.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) Each Preliminary Prospectus included as part of the
Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act except that
this representation and warranty does not apply to statements in or omissions
from such Preliminary Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
or on behalf of any Underwriter through you expressly for use therein. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) The Company and the transactions contemplated by this
Agreement meet the rquirements for using Form S-3 under the Act. The
Registration Statement in the form in which it became effective and also in such
form as it may be when any amendment thereto shall become effective and the
Prospectus when filed with the Commission under Rule 424(b) under the Act,
complied or will comply in all material respects with the provisions of the Act
and will not at any such times contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein. No stop order suspending the effectiveness of such registration
statements has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission.
(c) The Incorporated Documents heretofore filed, 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
Incorporated Documents or any further amendment or supplement thereto, when such
documents become effective or are filed with the
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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 Securities through the
Representatives expressly for use in the Prospectus relating to such Securities;
(d) Neither the Company nor any of its Subsidiaries has since
the date of the latest audited financial statements included or incorporated by
reference in the Prospectus incurred any liability or obligation, direct or
contingent, or entered into any transaction, not in the ordinary course of
business, that is material to the Company and its Subsidiaries taken as a whole,
or sustained 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 Preliminary Prospectus and the
Prospectus; and, since the respective dates as of which information is given in
the Preliminary Prospectus and the Prospectus, there has not been any material
change in the capital stock, or material increase in the short-term debt or
long-term debt, of the Company or any of its Subsidiaries or any material
adverse change, or any development involving, or which may reasonably be
expected to involve, a prospective material adverse change in or affecting the
condition (financial or other), business, prospects, properties, net worth,
assets or results of operations of the Company and its Subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Preliminary Prospectus
and the Prospectus;
(e) This Agreement has been duly authorized by the Company and
conforms in all material respects to the descriptions thereof in the Preliminary
Prospectus and the Prospectus;
(f) The Indenture has been duly authorized by the Company and
is the legal, valid binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law);
(g) The Securities have been duly authorized by the Company
and (when executed by the Company and authenticated in accordance with the
Indenture and delivered and paid for pursuant to this Agreement) will be the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law). The
Securities (when executed by the Company and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the Representatives)
will be entitled to the benefits of the Indenture (subject to the exceptions set
forth in the preceding sentence);
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(h) The Indenture and the Securities conform in all material
respects to the descriptions thereof in the Preliminary Prospectus and the
Prospectus.
(i) Each of the Company and each of its Subsidiaries that is
significant to the Company as determined by reference to item 1-02 of Regulation
S-X under the Act (the "SIGNIFICANT SUBSIDIARIES") has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with full power and authority (corporate and
other) to own or lease its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the business conducted by it or the
location of the properties owned or leased by it makes such qualification
necessary (except where failure to be so qualified and in good standing could
not be reasonably expected to have a material adverse effect on the Company and
its Subsidiaries taken as a whole);
(j) Neither the Company nor any of its Subsidiaries is, nor
with the giving of notice or lapse of time or both would be, in violation of or
in default under, nor will the execution or delivery of this Agreement or
consummation of the transactions contemplated by this Agreement result in a
violation of, or constitute a default under, the certificate of incorporation,
bylaws or other governing documents of the Company or any of its Subsidiaries,
or any agreement, indenture or other instrument to which the Company or any of
its Subsidiaries is a party or by which any of them is bound, or to which any of
their properties is subject, nor will the performance by the Company of its
obligations under this Agreement violate any law, rule, administrative
regulation or decree of any court or any governmental agency or body having
jurisdiction over the Company, its Subsidiaries or any of their properties, or
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any property or asset of the Company or any of its Subsidiaries, which, in
any case described above, would be material to the Company and its Subsidiaries
taken as a whole. Except for permits and similar authorizations required under
the Act, the Trust Indenture Act, the Federal Power Act and the securities or
Blue Sky laws of certain jurisdictions, and except for such permits and
authorizations as have been obtained, no consent, approval, authorization or
order of any court, governmental agency or body or financial institution is
required in connection with the consummation of the transactions contemplated by
this Agreement;
(k) Except as described in the Preliminary Prospectus and the
Prospectus, there is no litigation or governmental proceeding to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of its
Subsidiaries which could reasonably be expected to result in any material
adverse change in the condition (financial or other), results of operations,
business, prospects, net worth or assets of the Company and its Subsidiaries
taken as a whole;
(l) Neither the Company nor any Subsidiary is in violation of
any law, ordinance, governmental rule or regulation or court decree to which it
is subject which violation could reasonably be expected to have a material
adverse effect on the condition (financial or
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other), results of operations, business, prospects, net worth or assets of the
Company and its Subsidiaries taken as a whole;
(m) To the knowledge of the Company, the accountants who have
audited and reported upon the financial statements filed with the Commission as
part of the Registration Statement and the Prospectus, or incorporated by
reference thereto, are independent accountants as required by the Act and the
regulations thereunder. The consolidated financial statements and schedules
(including the related notes) included or incorporated by reference in the
Registration Statement and the Prospectus fairly present the consolidated
financial position, the results of operations and changes in financial condition
of the entity or entities to which such statements relate at the respective
dates and for the respective periods to which they apply. Such financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied, except as set forth in the Registration
Statement and Prospectus. The other financial and statistical information and
data set forth in the Registration Statement and the Prospectus are fairly
presented and have been prepared on a basis consistent with such financial
statements and the books and records of the entities purported to be shown
thereby;
(n) Except as set forth in or contemplated by the Prospectus,
the Company and each of its Subsidiaries hold all patents, licenses,
certificates and permits from governmental authorities necessary for the conduct
of its present operations (except where failure to hold such patents, licenses,
certificates and permits could not be reasonably expected to have a material
adverse effect on the Company and its Subsidiaries taken as a whole);
(o) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or other materials, if any, permitted by
the Act; and
(p) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will
indemnify and hold harmless each of you and each other 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, the Prospectus and any other prospectus relating to the Securities,
or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
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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, any Prospectus Supplement, the Registration
Statement, the Prospectus and any other prospectus relating to the Securities,
or any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of Securities
through the Representatives expressly for use in the Prospectus relating to such
Securities, and provided, further, that with respect to any such untrue
statement in or omission from the Preliminary Prospectus, the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of an
Underwriter to the extent that the sale to the person asserting any such loss,
claim, damage, liability or action was an initial resale by such Underwriter and
any such loss, claim, damage, liability or action of or with respect to such
Underwriter results from the fact that both (A) to the extent required by
applicable law, a copy of the Prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities to such
person and (B) the untrue statement in or omission from the Preliminary
Prospectus was corrected in the Prospectus unless, in either case, such failure
to deliver the Prospectus was a result of non-compliance by the Company.
(b) Each Underwriter 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, and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, and any other prospectus
relating to the Securities, or any amendment or supplement thereto 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,
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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.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Securities on the other from the offering of the 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
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 any claim or defending any
such action, suit, proceeding or claim. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable 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
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obligations of the Underwriters of Securities to contribute pursuant to this
Section 7 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 7 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 7 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.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Securities hereunder are subject
to the following conditions:
(a) All filings, if any, required by Rule 424 under the Act
shall have been timely made; no stop order suspending the effectiveness of a
registration statement relating to the Securities shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or any Underwriter threatened by the Commission; and any request of
the Commission for additional information (to be included in a registration
statement or prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
reasonable opinion, as Representatives of the several Underwriters, would
materially adversely affect the market for the Securities, or (ii) any event or
development relating to or involving the Company or any officer or director of
the Company which makes any statement made in the Prospectus untrue or which, in
the opinion of the Company and its counsel or the Underwriters and their
counsel, requires the making of any addition to or change in the Prospectus in
order to state a material fact required by the Act or any other law to be stated
therein or necessary in order to make the statements therein not misleading, if
amending or supplementing the Prospectus to reflect such event or development
would, in your reasonable opinion, as Representatives of the several
Underwriters, materially adversely affect the market for the Securities.
(c) You shall have received on the Closing Date an opinion of
Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters, dated the
Closing Date, with respect to the validity of the Securities, the Indenture, the
Registration Statement, the Prospectus, and other related matters as you
reasonably may request, such counsel being able to rely on the opinion, dated
the Closing Date, given pursuant to Section 8(d), and the Company shall have
furnished to such counsel such papers and information as they request to enable
them to pass upon such matters.
12
(d) You shall have received on the Closing Date an opinion of
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP, counsel to the Company, or the General
Counsel or Assistant General Counsel of the Company, in either case, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, in form and substance satisfactory to you and your counsel, to the
effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, 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 where the failure to be so
qualified and in good standing could not reasonably be expected to have a
material adverse effect on the Company and its Subsidiaries taken as a whole),
and has all corporate power and authority necessary to operate the businesses in
which it is engaged;
(ii) Each Significant Subsidiary of the Company (other than the
Company's foreign subsidiaries) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation;
(iii) The Company has full corporate power and corporate
authority to enter into and perform its obligations under this Agreement with
respect to the Securities and to issue, sell and deliver the Securities;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery by the Trustee)
constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except that such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(vi) The order of the Federal Energy Regulatory Commission
authorizing the issuance and sale of the Securities is in effect on the Closing
Date and no other approval, authorization, consent or order of any federal,
state or local commission or governmental authority (other than under state
securities or Blue Sky laws, as to which such counsel need express no opinion)
is required for the issuance and sale of the Securities or the performance by
the Company of its other obligations under this Agreement, except such as are
specified, obtained and in effect, and the issuance and sale of the Securities
hereunder are in conformity with such approval, authorization, consent and
order;
(vii) After due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which the Company or
its Significant
13
Subsidiaries is a party or to which any of the properties of the Company is
subject that is required to be described in the Registration Statement or the
Prospectus and is not so described;
(viii) The statements made (A) in the Registration Statement and
the Prospectus under the captions "Description of Senior Notes" and
"_______________", (B) in the Registration Statement and the Prospectus under
the captions "Underwriting" and "Plan of Distribution" relating to the terms or
conditions of this Agreement and (C) in the Company's most recent Annual Report
on Form 10-K or Quarterly Report on Form 10-Q under the caption "Legal
Proceedings"; insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings;
(ix) The execution, delivery and performance by the Company of
this Agreement and the Indenture will not violate any provision of applicable
law that would be material to the Company and its Subsidiaries taken as a whole
or the certificate of incorporation or the bylaws of the Company or breach, or
result in a default under, any agreement filed by the Company as an exhibit with
the Commission;
(x) The Incorporated Documents incorporated by reference in
the Prospectus as amended or supplemented (other than the financial statements
and related schedules and the other financial information and data 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
(xi) The Registration Statement is effective under the Act and
no stop order suspending the effectiveness of the Registration Statement has
been issued and, to the best of such counsel's knowledge, no proceedings for
that purpose have been instituted or are pending before or contemplated by the
Commission and all filings required by Rule 424 under the Act have been made;
the Registration Statement and the Prospectus and any amendments or supplements
thereto (other than the financial statements and related schedules and the other
financial information and data 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; and
they do not know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus, the omission of which
would be material in the context of the offering of the Securities, which are
not filed or incorporated by reference or described as required.
In addition, such counsel shall also state that they have no
reason to believe that, as of its effective date, the Registration Statement or
any amendment or supplement thereto made by the Company prior to the Closing
Date for the Securities (other than the financial statements and related
schedules and the other financial information and data therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to
14
state a material fact necessary in order to make the statements therein, in the
light of the circumstances in which they were made, not misleading or that, as
of its date, the Preliminary Prospectus or the Prospectus (including the
Incorporated Documents) each as amended or supplemented, or any amendment or
supplement thereto made by the Company prior to the Closing Date for the
Securities (other than the financial statements and related schedules and the
other financial information and data 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 in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading or that,
as of the Closing Date for the Securities, neither the Registration Statement
nor the Prospectus (including the Incorporated Documents) each as amended or
supplemented, or any amendment or supplement thereto made by the Company prior
to the Closing Date for the Securities (other than the financial statements and
related schedules and the other financial information and data therein, as to
which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances in which they were made,
not misleading.
In giving the foregoing opinions, such counsel may rely on the
opinions of local counsel or in-house counsel to the Company and the opinion of
Xxxxx & Xxxxxxx L.L.P., with respect to the opinions set forth in paragraph (vi)
above. Such counsel shall state that you and they are justified in relying on
such opinions.
(e) On or prior to the Closing Date (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities or preference
stock by Xxxxx'x Investor Service or Standard & Poor's Rating Group and (ii)
neither Xxxxx'x Investor Service nor Standard & Poor's Rating Group shall have
publicly announced that it has under surveillance or review, with possible
negative implication, its rating of any of the Company's debt securities or
preference stock;
(f) On the date hereof and the Closing Date for the
Securities, the independent accountants for the Company shall have furnished to
the Representatives such letters, the first letter dated the date hereof, and,
second, a letter dated the Closing Date, both to the effect as shall be agreed
upon by the Company and the Representatives;
(g)(i) Neither the Company nor any of the Subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus 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,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any material change in the capital stock,
or material increase in the short-term debt or long-term debt of the Company or
any of its Subsidiaries or any change, or any development involving or which may
reasonably be expected to involve, a prospective change in or affecting the
condition (financial or other), results of operations, business, prospects, net
worth or assets of the Company and its Subsidiaries taken as a whole, otherwise
15
than as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in Clause (i) or (ii) is, in the reasonable 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
Securities on the terms and in the manner contemplated in the Prospectus;
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Closing Date for the Securities a certificate or
certificates of the Chief Executive Officer, President or the Chief Financial
Officer of the Company (or such other officer as is acceptable to you)
satisfactory to the Representatives as to the accuracy of the representations
and warranties of the Company herein at and as of such Closing Date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to such Closing Date, as to the matters set forth in subsections
(a), (g) and (i) of this Section 8 and as to such other matters as the
Representatives may reasonably request.
(i) The Federal Energy Regulatory Commission and any other
commission or governmental authority having jurisdiction over any of the
Company's public utility businesses shall have issued all approvals,
authorizations, consents and orders (the "REGULATORY ACTIONS") required thereby
for the issuance and sale of the Securities and the performance by the Company
of its other obligations under this Agreement, each Regulatory Action shall be
in effect, no proceedings to suspend the effectiveness of any Regulatory Actions
shall be pending or threatened, no Regulatory Action shall contain any provision
or condition that is unacceptable to the Underwriters, and the issuance and sale
of the Securities to the Underwriters shall be in conformity with each
Regulatory Action;
(j) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements contained
in this Agreement and which are required to be performed or complied with by it
hereunder and thereunder at or prior to the Closing Date.
(k) The Company shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company
and delivered to you, as Representatives of the Underwriters, or to counsel for
the Underwriters, shall be deemed a representation and warranty by the Company
to each Underwriter as to the statements made therein.
9. EXPENSES. 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
16
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 Agreement, the Indenture or any
supplement thereto any Blue Sky Memoranda 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(e) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky surveys; (iv) any filing
fees incident to any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (v) the cost of
preparing, issuing and delivering the Securities; (vi) the fees and expenses of
any trustee and any agent of the trustee and the fees and disbursements of
counsel for any trustee in connection with the Indenture and Securities; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in this Section,
Section 7 and Section 5(h) hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
10. UNDERWRITING DEFAULT.
(a) If any Underwriter shall default in its obligation to
purchase the Securities which it has agreed to purchase, the Representatives may
in their discretion arrange for themselves or another party or other parties to
purchase such 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 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 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 Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company
shall have the right to postpone the Closing Date for such 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, 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 Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the 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 Securities which remains unpurchased does not
exceed one-tenth of the aggregate principal amount of the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to
17
purchase under this Agreement) of the 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 Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of the 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
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter of the Securities by notice to the Company, if prior to the Closing
Date there shall have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial banking activities in New York
or Missouri declared by either federal or state authorities; or (iii) the
outbreak or escalation of hostilities or other calamity or crisis involving the
United States or the declaration by the United States of a national emergency or
war if the effect of any such event specified in this clause (iii) in the
reasonable judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The following
statements set forth in the Prospectus Supplement under the heading
"Underwriting" constitutes the only information furnished by or on behalf of the
Underwriters through you as such information is referred to in Sections 6(b),
6(c) and 7 hereof: _________.
13. MISCELLANEOUS. Except as otherwise provided herein, notice
given pursuant to any provision of this Agreement shall be in writing and shall
be delivered or sent by mail, telex or facsimile transmission (i) if to the
Company, at the office of the Company at 00 Xxxx Xxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, Attention: General Counsel (Facsimile: (000) 000-0000) or (ii)
if to you, as Representatives of the several Underwriters, care of
____________________, Attention: ______________________________ (Facsimile:
(____)_____________). Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in Section
7 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
18
acquire or have any right under or by virtue of this 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. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
15. COUNTERPARTS. This 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.
If the foregoing is in accordance with your understanding, please
sign and return to us ____ counterparts hereof.
Very truly yours,
AQUILA, INC.
By
--------------------
Name:
Title:
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
[Names of Co-Representative(s)]
As Representatives of the Several Underwriters
By: [Lead Underwriter]
By:
--------------------------------
Name:
Title:
19
20
SCHEDULE I
AQUILA, INC.
Principal Amount of
Underwriters Securities
------------ -------------------
$
-------------------
Total $
===================
