Exhibit 1
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SENIOR NOTES
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UNDERWRITING AGREEMENT
, 2001
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
From time to time, Central Illinois Public Service Company, d/b/a
AmerenCIPS, an Illinois 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 notes (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 December 1, 1998 (as 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 or Deed of Trust, dated October 1, 1941,
executed by the Company to U.S. Bank Trust National Association, as successor
trustee (the "Corporate Trustee"), and Xxxxxxx X. Xxxxxxx, as successor
co-trustee (the "Co-Trustee" and, together with the Corporate Trustee and 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 a 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 or 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 Form S-3 under
the Securities Act of 1933, as amended (the "Act") and a registration
statement on Form S-3 (File No. 333-....) (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 and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) under the
Act, is hereinafter called a "Preliminary Prospectus"; the various parts of
the
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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 or Form T-2, 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, 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 the
date of such filing);
(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 Registration
Statement and 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 change in the stockholder's
equity (except for regular quarterly dividends and retained earnings),
short-term or long-term debt of the Company or any material adverse change,
or any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholder's 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 not required by the nature of its business to be licensed or
qualified as a foreign corporation in any other state or jurisdiction; and
the Company has no majority-owned subsidiaries (within the meaning of Rule
1-02(n) of Regulation S-X under the Act) with total assets or total
liabilities in excess of $100,000;
(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;
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(h) The Securities have been duly authorized by the Company, and,
when Designated Securities are issued and delivered pursuant to this
Underwriting Agreement and 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, executed and delivered by the Company and duly qualified under
the Trust Indenture Act and is a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; 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 (as defined in Section 4 hereof) 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 in accordance with its terms, subject, as to
enforcement, to the laws of the State of Illinois affecting the remedies
for the enforcement of the security provided for therein and to bankruptcy,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; 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 encumbrances and liens" as defined in the
Mortgage; and 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;
(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
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Prospectus, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder;
(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; 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 (the "ICC Order") authorizing the issuance and
sale of the Designated Securities by the Company and the issuance of the
First Mortgage Bonds by the Company, the ICC Order 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; and no other
consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body 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 Notes" and "Description of Senior Note 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 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 material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust,
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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;
(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 best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by 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,
failure to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, 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 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
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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
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or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(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, any preliminary prospectus
supplement 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
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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, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
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 (a form of such opinion is
attached as Annex II(a) hereto), dated the Time of Delivery for such Designated
Securities, with respect to the matters covered in paragraphs (iv), (v), (vi),
(vii), (viii), (xiv), (xv) and (xvii) 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, 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 (a form of such opinion is attached as Annex II(b)
hereto), 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 Illinois, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus as amended or supplemented 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;
10
(iii) To the best of such counsel's knowledge and other than as
set forth 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 have a Material Adverse Effect; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by 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, that is not described or
filed as required; and the statements included or incorporated in the
Prospectus as amended or supplemented describing any legal proceedings
or material contracts or agreements relating to the Company fairly
summarize such matters;
(iv) This Underwriting Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(v) 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 entitled to the benefit
of the security afforded by the Indenture;
(vi) 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, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust
Indenture Act;
(vii) The First Mortgage Bonds have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Corporate 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 entitled to the benefit of
the security afforded by the Mortgage;
(viii) 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, subject, as to enforcement, to provisions of the Mortgage
being limited by the laws of the State of Illinois 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 to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Mortgage has been duly qualified
under the Trust Indenture Act;
(ix) 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,
11
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, nor
will such actions 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 known to such counsel of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(x) 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 ICC
Order; the ICC Order is 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 is in full force and
effect; no other consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
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);
(xi) The Company is not (i) in violation of its By-laws or
Articles of Incorporation or (ii) 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;
(xii) The Company is not an "investment company", as such term is
defined in the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules 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
12
Commission, 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 under which they were made when such
documents were so filed, not misleading;
(xiv) 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 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 (xvii) 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 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 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;
(xv) The delivery to the Trustee in the State of New York 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 New York, such security interest, insofar as it secures
the related Designated Securities, is not subject to any present or
future prior liens;
(xvi) 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
13
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
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; and
(xvii) The statements set forth in the Prospectus as amended or
supplemented with respect to the Designated Securities under the
captions "Description of Senior Notes" and "Description of Senior Note
Mortgage Bonds" insofar as they purport to constitute a summary of the
terms of the Designated Securities, 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.
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.
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, (ii) as to certain matters
involving the application of the laws of the State of Illinois, upon an opinion
of Sorling, Northrup, Xxxxx, Xxxxxx and Xxxxxxx, Ltd. or other Illinois counsel
reasonably satisfactory to the Representatives, provided that such opinion
states that the Underwriters and counsel for the Underwriters may rely on such
opinion and (iii) 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 State of
Illinois in its opinion to the Underwriters at the Time of Delivery) without
such counsel's prior written consent.
(d) The Company shall have furnished to the Representatives the written
opinion (a form of such opinion is attached as Annex II(c) hereto) of Sorling,
Northrup, Xxxxx, Xxxxxx and Xxxxxxx, Ltd., Illinois legal counsel for such
Company, dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) 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;
14
(ii) The Company has good and sufficient title to all or
substantially all the permanent fixed properties and the material
franchises, permits and licenses now owned by it, including those
described or referred to in the Prospectus as amended or supplemented,
except as may be otherwise indicated therein, and no notice has been
given to the Company by any governmental authority of any proceeding
to condemn, purchase or otherwise acquire any material properties of
the Company and, so far as such counsel knows, no such proceeding is
contemplated;
(iii) The Mortgage has been duly filed for recording and recorded
in each county in the State of Illinois in which any permanent fixed
property described in and conveyed by the Mortgage and now owned by
the Company is located, and constitutes a legally valid and direct
enforceable first mortgage lien (except as federal bankruptcy laws may
affect the validity of the lien of the Mortgage with respect to
proceeds, products, rents, issues or profits of the property subject
to such lien realized and additional property acquired within 90 days
prior to and after the commencement of a case under such laws and
except as enforcement of provisions thereof may be limited by the laws
of the State of Illinois affecting the remedies for the enforcement of
the security provided for in the Mortgage, which laws do not, in the
opinion of such counsel, make such remedies inadequate for realization
of the benefits of such security, or limited by bankruptcy or
insolvency laws or other applicable laws affecting the enforcement of
creditors' rights generally or by general principles of equity) upon
substantially all of the Company's fixed properties and franchises
used or useful in its public utility businesses free from all prior or
equal ranking liens, charges or encumbrances, subject only to
permitted encumbrances and liens, as defined in the Mortgage, and to
the provisions contained in the Mortgage for the release, or
substitution and release, of property from the lien thereof;
(iv) No recordation, registration or filing of the Indenture or
any supplemental indenture or instrument of further assurance is
necessary in the State of Illinois to make effective the security
interest intended to be created by the Indenture with respect to the
First Mortgage Bonds; and
(v) Substantially all physical properties and franchises used or
useful in the Company's public utility businesses (other than those of
the character not subject to the lien of the Mortgage) and now owned
by the Company are subject to the lien of the Mortgage, subject only
to permitted encumbrances and liens, as defined in the Mortgage, and
to the provisions contained in the Mortgage for the release, or
substitution and release, of property from the lien thereof; and all
physical properties and franchises used or useful in the Company's
public utility businesses (other than those of the character not
subject to the lien of the Mortgage) hereafter acquired by the Company
and situated in counties in the State of Illinois in which the
Mortgage shall be of record will, upon such acquisition, become
subject to the lien of the Mortgage, subject, however, to such
encumbrances and liens as are permitted thereby.
(e) 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
15
dated such Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and in form and substance satisfactory to the Representatives (forms of
which are attached as Annex II(d) hereto);
(f) (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 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 in the
stockholder's equity (except regular quarterly dividends and retained earnings),
short-term or long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholder's 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;
(g) 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;
(h) 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;
(i) 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 on the New
York Stock Exchange; (ii) a suspension or material limitation in trading in the
Company's securities on the over the counter bulletin board system; (iii) a
general moratorium on commercial banking activities declared by Federal, New
York State or Illinois State authorities; or (iv) the outbreak or escalation of
hostilities 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 (iv) in the judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or the delivery of the
16
Designated Securities on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(j) 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;
(k) 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 (f) of this
Section and as to such other matters as the Representatives may reasonably
request; and
(l) The ICC Order shall be in full force and effect at the Time of
Delivery.
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, any preliminary
prospectus supplement, 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
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 preliminary prospectus supplement, 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 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, any preliminary prospectus supplement, 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 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, any preliminary prospectus
17
supplement, 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 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
18
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 another party or other parties to
purchase such Designated Securities on the terms contained
19
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.
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
21
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 [three] counterparts hereof.
Very truly yours,
Central Illinois Public Service Company
d/b/a AmerenCIPS
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
----------------------------------
(Xxxxxxx, Sachs & Co.)
22
ANNEX I
PRICING AGREEMENT
[Date]
Xxxxxxx, Xxxxx & Co.
As Representatives of
the several Underwriters
named in Schedule I hereto
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Central Illinois Public Service Company, d/b/a AmerenCIPS, an Illinois
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated _____________, 2001 (the
"Underwriting Agreement"), between the Company on the one hand and Xxxxxxx,
Sachs & Co. 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 [three] counterparts 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,
Central Illinois Public Service Company
d/b/a AmerenCIPS
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
----------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
I-2
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
Xxxxxxx, Xxxxx & Co ...................................... $
[Other Underwriters]
---------
Total .......................................... $
=========
I-3
SCHEDULE II
Title of Designated Securities:
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 ____________________, 19__]
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 [$_______] or an integral multiple thereof,
[on or after _________________, ____ at the following redemption prices
(expressed in percentages of principal amount). If [redeemed on or before
_______, ____%, and if] redeemed during the 12-month period beginning
______________________,
Redemption
Year Price
---- -----
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after ________________, ____,
at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of
redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$______] 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 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
I-2
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:
Address for Notices, etc.:
[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-3
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 any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information), examined 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; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
separately furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives;
(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 as indicated in their reports thereon copies
of which have been separately furnished to the Representatives; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related rules and regulations adopted by the
Commission;
(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 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.
