Exhibit 1.1
UNION ELECTRIC COMPANY
SENIOR SECURED DEBT SECURITIES
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UNDERWRITING AGREEMENT
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______________, 2002
Banc of America Securities LLC
Credit Suisse First Boston Corporation
As Representatives of
the several Underwriters
c/o Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
From time to time, Union Electric Company d/b/a AmerenUE, a Missouri
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each, a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its senior secured debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities"). The Designated
Securities will be secured by a series of the Company's First Mortgage Bonds
specified in Schedule II to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the "First Mortgage Bonds"), in the same aggregate
principal amount and having the same stated interest rate and maturity date and
other terms as the Designated Securities to which they relate.
The terms and rights of any particular issuance of Designated Securities
(including the First Mortgage Bonds securing such Designated Securities) shall
be as specified in the Pricing Agreement relating thereto and in or pursuant to
the Indenture dated as of _________ __, 2002 (as it may be supplemented or
amended, the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee"). The First Mortgage Bonds will be issued under and
pursuant to the Company's Indenture of Mortgage and Deed of Trust, dated June
15, 1937, executed by the Company to The Bank of New York, as successor trustee
(the "Mortgage Trustee" and, together with the Trustee, the "Trustees"), as
heretofore amended and supplemented by various supplemental indentures, and as
to be further amended and supplemented by a supplemental indenture relating to
the particular series of First Mortgage Bonds specified in Schedule II to the
applicable Pricing Agreement (with respect to such Pricing Agreement, the
"Supplemental Indenture"). The term "Mortgage," as used herein, shall be
deemed to refer to such Indenture of Mortgage and Deed of Trust as so amended
and supplemented.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the title and aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the series of First Mortgage
Bonds securing such Designated Securities, the Supplemental Indenture relating
to such First Mortgage Bonds, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters, if any, and
the principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in or pursuant to the Indenture and the
registration statement and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Underwriting Agreement and each Pricing Agreement shall
be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Company meets the requirements for the use of a registration
statement on Form S-3 under the Securities Act of 1933, as amended (the "Act"),
and a registration statement on Form S-3 (File No. 333-87506) (together with any
pre-effective amendments thereto, the "Initial Registration Statement") in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents incorporated by reference in
the prospectus contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Act, which became effective upon filing, and except as otherwise set forth
therein, no other document with respect to the Initial Registration Statement or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no
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proceeding for that purpose has been initiated or threatened by the Commission
(any preliminary prospectus included in the Initial Registration Statement or
any preliminary prospectus supplement used in connection with the offering and
sale of Designated Securities, is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statement, any post-effective
amendment thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such part
of the Initial Registration Statement became effective but excluding any Form
T-1, each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in the form
in which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Underwriting Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and include any annual report
of the Company filed pursuant to Sections 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any reference to
the Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable Designated
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of its date);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(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
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amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective
date as to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Designated
Securities;
(d) The financial statements of the Company filed as part of or
incorporated by reference in the Registration Statement and the Prospectus
fairly present the financial condition of the Company as of the dates indicated
and the results of its operations and cash flows for the periods therein
specified and have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods involved, except as otherwise indicated therein;
(e) The Company has not sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Prospectus, (i) the Company has
not incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are material
to the Company, and (ii) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity or results
of operations of the Company, in each case, otherwise than as set forth or
contemplated in the Prospectus;
(f) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; the Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not reasonably be expected to have
a Material Adverse Effect (as defined herein); and the Company has no
majority-owned subsidiaries (within the meaning of Rule 1-02 (n) of Regulation
S-X under the Act) except for Union Electric Development Corporation;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Securities have been duly authorized by the Company, and,
when Designated Securities are issued and delivered pursuant to this
Underwriting Agreement and 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,
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which will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and, at the Time of Delivery (as defined
in Section 4 hereof), the Indenture will be duly executed and delivered by the
Company and will be a valid and legally binding instrument, enforceable against
the Company in accordance with its terms, except as may be limited by (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) requirements of reasonableness, good faith and fair dealing
(collectively, the "Exceptions"); and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in the Prospectus
as amended or supplemented with respect to such Designated Securities;
(i) The First Mortgage Bonds have been duly authorized by the
Company, and, when the First Mortgage Bonds have been issued and delivered
pursuant to the Mortgage and the Indenture, such First Mortgage Bonds will have
been duly executed, authenticated, issued and delivered, will constitute valid
and legally binding obligations of the Company entitled to the security afforded
by the Mortgage, which will be substantially in the form filed as an exhibit to
the Registration Statement, and will be owned and held by the Trustee, in trust,
for the benefit of the holders of the related Designated Securities; the
Mortgage has been duly authorized by the Company and duly qualified under the
Trust Indenture Act and, at the Time of Delivery for the related Designated
Securities, the Mortgage (as supplemented and amended by the Supplemental
Indenture relating to the First Mortgage Bonds) will be duly executed and
delivered by the Company and will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its terms,
subject to the laws of the States of Missouri, Illinois and Iowa affecting the
remedies for the enforcement of the security provided for therein and except as
may be limited by the Exceptions; and the Mortgage conforms, and the First
Mortgage Bonds will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the related Designated
Securities;
(j) Substantially all of the permanent, fixed properties of the
Company are owned in fee simple or are held under valid leases, in each case
subject only to the liens of current mortgages (including the lien of the
Mortgage) and "permitted liens" and "judgment liens" as defined in the Mortgage;
such minor imperfections of title and encumbrances, if any, which are not
substantial in amount, do not materially detract from the value or marketability
of the properties subject thereto and do not materially impair the title of the
Company to its properties or its right to use its properties in connection with
its business as presently conducted; and, based on the Company's balance sheet
as of _______________, approximately ____% of the Company's property and plant
was located in the States of Illinois and Iowa;
(k) This Underwriting Agreement has been, and the Pricing Agreement
applicable to any Designated Securities, at the date thereof, will be, duly
authorized, executed and delivered by the Company;
(l) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder;
(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
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Indenture, the First Mortgage Bonds, the Mortgage, this Underwriting Agreement
and any Pricing Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Restated Articles of
Incorporation or By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; each of the Missouri Public Service
Commission and the Illinois Commerce Commission has issued, or as of the date of
the Pricing Agreement applicable to any Designated Securities, will have issued,
its final order (collectively, the "Regulatory Orders") authorizing the issuance
and sale of the Designated Securities by the Company and the issuance of the
First Mortgage Bonds by the Company; the Regulatory Orders are, or as of the
date of the Pricing Agreement applicable to any Designated Securities, will be,
in full force and effect and are, 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, including, without limitation, any
regulatory body of the State of Iowa, is required for the issue and sale of the
Securities and the issue of the First Mortgage Bonds by the Company, or the
consummation by the Company of the transactions contemplated by this
Underwriting Agreement or any Pricing Agreement or the Indenture or the
Mortgage, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(n) The statements set forth in the Prospectus as amended or
supplemented with respect to any Designated Securities under the captions
"Description of Senior 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 obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, which default would reasonably
be expected to have a Material Adverse Effect;
(p) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of which any
property of the Company is the subject which, if determined adversely to the
Company, would individually
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or in the aggregate have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened by governmental authorities or
others;
(q) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
(r) Except as set forth in the Prospectus, the Company (i) is in
compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct
its business and (iii) is in compliance with all terms and conditions of any
such permit, license or approval, except as to clauses (i), (ii) and (iii) where
such non-compliance with Environmental Laws or failure to receive, or comply
with the terms and conditions of, required permits, licenses or other approvals
would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company to the
Representatives at least forty-eight hours in advance or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Designated Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating to the
applicable Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of the Pricing Agreement relating to such Designated Securities and prior to the
Time of Delivery for such Designated Securities which shall be disapproved by
the Representatives for such Designated Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such amendment or
supplement after such Time of Delivery and furnish the Representatives with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
pursuant to
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Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Securities or
suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined in Section 14 hereof) next succeeding the date of this
Underwriting Agreement and from time to time, including the New York Business
Day next succeeding the date of any Pricing Agreement, to furnish the
Underwriters with written and electronic copies of the Prospectus in New York
City as amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to
file under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the Trust
Indenture Act, to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many written and electronic copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(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
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Representatives, and (ii) the Time of Delivery for such Designated Securities,
not to offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which mature more than one year after such Time of Delivery and
which are substantially similar to such Designated Securities, without the prior
written consent of the Representatives;
(f) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Underwriting Agreement or the date of the applicable Pricing Agreement, as
applicable, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
(g) The Company will apply the net proceeds from the sale of any
Designated Securities for the purposes set forth in the Prospectus as amended or
supplemented to reflect the offering and sale of such Designated Securities.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Underwriting Agreement, any Pricing Agreement, the
Indenture, the Mortgage, any blue sky surveys, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) any filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of
preparing the Securities and the First Mortgage Bonds; (vii) the fees and
expenses of the Trustees and any agent of the Trustees and the fees and
disbursements of counsel for the Trustees in connection with the Indenture, the
Securities, the Mortgage and the First Mortgage Bonds; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section 6. It is
understood, however, that, except as provided in this Section 6, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and transfer taxes on resale of any of the
Securities by them.
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:
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(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Underwriting Agreement or the date of
such Pricing Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery for
such Designated Securities, with respect to the matters covered in paragraphs
(iv), (v), (vi), (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, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to the
effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Missouri, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented; and the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect;
(ii) 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;
(iii) To such counsel's knowledge and other than as described in
the Prospectus as amended or supplemented, there are no legal or
governmental proceedings pending to which the Company is a party or of
which any property of the Company is the subject which, if determined
adversely to the Company, would individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; to such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or others; [there is no franchise, contract or other document
of a character required to be described in the Registration Statement or
the Prospectus, or to be filed as an exhibit (either thereto or to a
document incorporated therein by reference), that is not described or
filed as required]; and the statements included or incorporated by
reference in the Prospectus as amended or supplemented describing
10
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, except as may be limited by
the Exceptions, and will be 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, except as may be limited by the Exceptions; 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 Mortgage Trustee and upon delivery in accordance with the
terms of the Mortgage and the Indenture, will constitute valid and legally
binding obligations of the Company, except as may be limited by the
Exceptions, and will be entitled to the benefit of the security afforded
by the Mortgage;
(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 in accordance
with its terms, subject to provisions of the Mortgage being limited by the
laws of the States of Missouri, Illinois or Iowa affecting the remedies
for the enforcement of the security provided for therein, which laws do
not, in such counsel's opinion, make inadequate remedies necessary for the
realization of the benefits of such security and except as may be limited
by the Exceptions; and the Mortgage has been duly qualified under the
Trust Indenture Act;
(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, this Underwriting Agreement and the Pricing
Agreement with respect to the Designated Securities and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel to
which the Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, which would
reasonably be expected to have a Material Adverse Effect, nor will such
actions result in any violation of the provisions of the Restated Articles
of Incorporation or By-laws of the Company or any statute or any order,
rule or
11
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties;
(x) Each of the Missouri Public Service Commission and the
Illinois Commerce Commission has duly authorized the issue and sale of the
Designated Securities by the Company and the issue of the First Mortgage
Bonds by the Company pursuant to the Regulatory Orders; the Regulatory
Orders are sufficient for the issue and sale of the Designated Securities
by the Company as contemplated by this Underwriting Agreement and the
issue of the First Mortgage Bonds by the Company as contemplated by the
Mortgage and are in full force and effect; no other consent, approval,
authorization, order, registration or qualification of or with any court
or governmental agency or body, including, without limitation, any
regulatory body of the State of Iowa, is required for the issue and sale
of the Designated Securities and the issue of the First Mortgage Bonds by
the Company or the consummation by the Company of the transactions
contemplated by this Underwriting Agreement or such Pricing Agreement or
the Indenture or the Mortgage, except such as have been obtained under the
Act and the Trust Indenture Act and except such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
under state securities or blue sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters (as to
which such counsel need express no opinion);
(xi) [The Company is not (i) in violation of its By-laws or
Restated 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 and other financial data included or incorporated by
reference therein, as to which such counsel need express no opinion), when
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to believe
that any of such documents, when they became effective or were so filed,
as the case may be, contained, in the case of a registration statement
which became effective under the Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact 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
12
effective dates or respective dates of filing, as applicable (other than
the financial statements and related schedules and other financial data
included or incorporated by reference therein, as to which such counsel
need express no opinion), comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in subsection (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 and other financial
data included or incorporated by reference therein, as to which such
counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that, as of its date and on the date of such opinion, the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial data
included or incorporated by reference therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; the Registration Statement has become, and as of the date of
such opinion is, effective under the Act; any required filing of the
Prospectus as amended or supplemented, pursuant to Rule 424(b) under the
Act has been made in the manner and within the time period required by the
applicable paragraph of such Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement has been issued, and no
proceedings for that purpose have been instituted or, to the best
knowledge of such counsel, threatened under Section 8 of the Act;
(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 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;
13
(xvii) The statements set forth in the Prospectus as amended or
supplemented with respect to the Designated Securities under the captions
"Description of Senior Secured Debt Securities" and "Description of First
Mortgage Bonds" [others] insofar as they purport to constitute a summary
of the terms of the Designated Securities are accurate summaries in all
material respects;
(xviii) The principal plants and other important units of property
of the Company are held by the Company in fee simple or are located on
real property held by the Company in fee simple, subject only to the lien
of the Mortgage and to permitted and judgment liens as defined in the
Mortgage, except that (a) a portion of the Osage plant reservoir, certain
facilities at the Sioux plant, certain substations and most of the
Company's transmission and distribution lines and gas mains are situated
on lands occupied under leases, easements, franchises, licenses or
permits; (b) the United States and/or State of Missouri own, or have or
may have, paramount rights with respect to, certain lands lying in the bed
of the Osage River or located between the inner and outer harbor lines of
the Mississippi River, on which certain generating and other properties of
the Company are located; and (c) the United States and/or State of
Illinois and/or State of Iowa and/or city of Keokuk, Iowa, own, or have or
may have, paramount rights with respect to, certain lands lying in the bed
of the Mississippi River on which a portion of the Keokuk plant is
located. Such counsel shall state that such exceptions do not in such
counsel's opinion materially affect the title of the Company to its
properties or its right to use its properties in connection with its
business as presently conducted;
(xix) The Mortgage constitutes a valid and direct first lien on
substantially all the properties and franchises of the Company not
expressly excepted from the lien thereof, subject to permitted liens as
defined in the Mortgage and judgment liens with respect to which cash in
the amount thereof has been deposited with the Mortgage Trustee; provided
that the lien of the Indenture on real property of the Company acquired
after the date of recordation of the supplemental indenture dated as of
[date of last supplemental indenture under which FMBs were issued] in each
county where the Company owns property or conducts business may not be
effective in some cases against creditors or purchasers for value without
notice whose rights to such property attach prior to the recording of the
Supplemental Indenture;
(xx) The statements in the Prospectus as amended or
supplemented that are stated therein to have been made on the authority of
such counsel have been reviewed by such counsel and, as to matters of law
and legal conclusions, are correct; and
(xxi) No recordation, registration or filing of the Indenture or
any supplemental indenture or instrument of further assurance is necessary
in the States of Missouri, Illinois or Iowa to make effective the security
interest intended to be created by the Indenture with respect to the First
Mortgage Bonds.
Such opinion shall also state that such counsel has no knowledge of any
litigation, pending or threatened, that challenges the validity of the
Designated Securities, the Indenture, the First Mortgage Bonds, the Mortgage or
this Underwriting Agreement or the Pricing Agreement, or that seeks to enjoin
the performance of the Company's obligations hereunder or thereunder or that
might have a Material Adverse Effect except as disclosed in or contemplated by
the Prospectus as amended or supplemented.
14
[Such counsel's opinion with respect to title of the Company to its
properties and the rank of the lien of the Mortgage and the Supplemental
Indenture shall state that with regard to such properties located in Illinois,
it is based on consultations with Illinois counsel and may be, with regard to
its properties owned in fee, based in whole or in part on title searches made on
recent dates by title abstract companies, by other attorneys or real estate
employees of an affiliate of the Company, and such counsel's opinion with regard
to such other properties may be based in whole or in part on title examinations
made and title opinions rendered at various times by other attorneys regarded by
him as competent, and, with regard to all properties of the Company, upon his
general familiarity with titles to properties of the Company; provided that such
counsel's opinion is stated to be in reliance upon such title searches or
opinions. Such counsel shall also state that such searches and opinions are
satisfactory in scope and form to such counsel and that in such counsel's
opinion, the Underwriters are justified in relying thereon. Copies of such title
searches or opinions shall be furnished to counsel for the Underwriters upon
their reasonable request.]
In rendering such opinion, such counsel may rely (i) as to factual
matters, upon certificates or written statements from appropriate
representatives of the Company or upon certificates of public officials, and
(ii) as to matters involving the application of the laws of the State of New
York, upon the opinion of counsel for the Underwriters delivered to the
Representatives pursuant to Section 7(b) hereof.
Such counsel's opinion may further state that it is addressed to the
Representatives and is rendered solely for their benefit and may not be relied
upon in any manner by any other person (other than counsel for the Underwriters
as to certain matters involving the application of the laws of the States of
Missouri, Illinois and Iowa in its opinion to the Underwriters at the Time of
Delivery) without such counsel's prior written consent.
(d) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, PricewaterhouseCoopers LLP shall have furnished to the
Representatives a letter, dated the date of such Pricing Agreement, and a letter
dated such Time of Delivery, respectively, to the effect set forth in Annex II
hereto, and in form and substance satisfactory to the Representatives;
(e) (i) The Company shall not have sustained since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus as amended or supplemented prior to the date of the Pricing Agreement
relating to the Designated Securities any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as amended
or supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities (x) the
Company has not incurred any liabilities or obligations, direct or contingent,
or entered into any transactions, not in the ordinary course of business, that
are material to the Company and (y) there shall not have been any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement relating to
the Designated Securities, the effect of which, in any such case described
15
in clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented relating
to the Designated Securities;
(f) On or prior to the Time of Delivery, the Representatives shall
have received satisfactory evidence that the Designated Securities have received
ratings of ___ or higher by Standard & Poor's and ___ or higher by Xxxxx'x
Investors Service, Inc., and that such ratings are in effect at the Time of
Delivery;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally by the
Commission, the New York Stock Exchange or The Nasdaq Stock Market or any
setting of minimum or maximum prices for trading thereon; (ii) a suspension or
material limitation in trading in the Company's securities by the Commission,
The New York Stock Exchange, the American Stock Exchange or The Nasdaq Stock
Market; (iii) a general moratorium on commercial banking activities declared by
Federal, New York State or Missouri State authorities or a material disruption
has occurred in commercial banking or securities settlement or clearance
services in the United States; (iv) any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war; or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any event specified in clause (iv) or (v)
in the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Securities on
the terms and in the manner contemplated in the Prospectus as first amended or
supplemented relating to the Designated Securities;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Underwriting Agreement or next
succeeding the date of the Pricing Agreement, as applicable;
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this
Section and as to such other matters as the Representatives may reasonably
request; and
(k) The Regulatory Orders shall be in full force and effect at the
Time of Delivery.
16
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement (or, in the case of any action arising out of the issuance and sale of
the Securities, in any prior registration statement to which the Prospectus, as
a combined prospectus under Rule 429 under the Act, relates), the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the
Prospectus as amended or supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the
17
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 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
18
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 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
19
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 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.
20
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 shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
21
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof.
Very truly yours,
Union Electric Company
d/b/a AmerenUE
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
Credit Suisse First Boston Corporation
As Representatives of
the several Underwriters
c/o Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Banc of America Securities LLC
By:
----------------------------------------
Name:
Title:
22
ANNEX I
PRICING AGREEMENT
-----------------
[Date]
Banc of America Securities LLC
Credit Suisse First Boston Corporation
As Representatives of
the several Underwriters
named in Schedule I hereto
c/o Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Union Electric Company d/b/a AmerenUE, a Missouri corporation (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated __________, 2002 (the "Underwriting
Agreement"), between the Company on the one hand and Banc of America Securities
LLC and Credit Suisse First Boston Corporation, as Representatives of the
several Underwriters on the other hand, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from
the Company, at the time and place and at the purchase price to the Underwriters
set forth in Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Union Electric Company
d/b/a AmerenUE
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
Banc of America Securities LLC
Credit Suisse First Boston Corporation
As Representatives of
the several Underwriters
named in Schedule I hereto
Banc of America Securities LLC
By:
---------------------------------------
Name:
Title:
II-2
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
Banc of America Securities LLC....................................... $
Credit Suisse First Boston Corporation...............................
[Other Underwriters]
Total................................................. -----------
$
===========
II-3
SCHEDULE II
Title of Designated Securities: % Senior Secured Notes due 20
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and accrued amortization[, if any,]
from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization [, if any,] from to ]
Form of Designated Securities:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the offices of
DTC in New York, New York or its designated custodian.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
a.m. (New York City time),
First Mortgage Bonds:
Supplemental Indenture relating to First Mortgage Bonds:
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates, commencing ....................., 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
II-2
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 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:
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Address for Notices, etc.:
Banc of America Securities LLC
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[Other Terms]*:
--------
* A description of particular tax, accounting or other unusual features (such as
the addition of event risk provisions) of the Designated Securities should be
set forth, or referenced to an attached and accompanying description, if
necessary, to ensure agreement as to the terms of the Designated Securities to
be purchased and sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus Supplement for the
offering.
II-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;
II-4
(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
II-5
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.
II-6
