Exhibit 1
$75,000,000
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
Senior Notes, ___% Due ____
UNDERWRITING AGREEMENT
----------------------
December __, 1998
▇▇▇▇▇▇ BROTHERS INC.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
The undersigned, Central Illinois Public Service Company, an Illinois
corporation (the "Company"), confirms its agreement with you in respect of the
sale by the Company and the purchase by you of $75,000,000 aggregate principal
amount of the Company's Senior Notes, ___% Due ____ (the "Notes"). The Notes
will be issued under and pursuant to the Indenture dated as of December 1, 1998
(as supplemented and amended from time to time pursuant to the terms thereof,
the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The Notes will be secured by a series of the Company's First
Mortgage Bonds designated "First Mortgage Bonds, Senior Notes Series AA" (the
"First Mortgage Bonds") in the same aggregate principal amount and having the
same stated interest rate, maturity rate and other terms as the Notes they
secure, as described in the Final Prospectus (as defined in Section 1(d)
hereof). The First Mortgage Bonds will be issued under and pursuant to the
Company's Indenture of Mortgage or Deed of Trust, dated October 1, 1941,
executed by the Company to U.S. Bank Trust National Association, as successor
trustee (the "Corporate Trustee"), and ▇. ▇▇▇▇▇▇▇▇▇▇, as successor co-trustee
(the "Co-Trustee" and, together with the Corporate Trustee and the Trustee, the
"Trustees"), as heretofore amended and supplemented by various supplemental
indentures, and as to be further amended and supplemented by a supplemental
indenture dated December 1, 1998 (the "Supplemental Indenture"). The term
"Mortgage," as used herein, shall be deemed to refer to such Indenture of
Mortgage or Deed of Trust as so amended and supplemented.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and covenants and agrees with, you that:
(a) The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Illinois and
has the necessary corporate power and authority to conduct the business
that it is described in the Final Prospectus as conducting and to own and
operate the properties owned and operated by it in such business; the
Company is not required by the nature of its business to be licensed or
qualified as a foreign corporation in any other state or jurisdiction;
except as set forth in the Final Prospectus, the Company has all material
licenses and approvals required at the date hereof to conduct its business,
and the Company has no majority-owned subsidiaries (within the meaning of
Rule 1-02(m) of Regulation S-X) with total assets or total liabilities in
excess of $100,000.
(b) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-18473), as amended by Pre-Effective
Amendment No. 1 thereto ("Registration Statement No. 333-18473"), on such
form for the registration under the Act of $170,000,000 aggregate principal
amount of the Company's first mortgage bonds and the Company's medium-term
notes, as series of first mortgage bonds, and the offering thereof from
time to time in accordance with Rule 415 (as defined in Section 1(d)
hereof), including a combined prospectus relating, pursuant to Rule 429, to
$200,000,000 aggregate principal amount of such first mortgage bonds and
medium-term notes. After Registration Statement No. 333-18473 was declared
effective by the Commission, and while $75,000,000 aggregate principal
amount of such first mortgage bonds and medium-term notes remained unsold
under Registration Statement No. 333-18473, the Company filed
Post-Effective Amendment No. 1 to Registration Statement No. 333-18473 in
order to facilitate the offering of one or more series of senior notes,
including the Notes, that would be secured by a related series of such
first mortgage bonds. As of the date of this Agreement, an aggregate of
$75,000,000 principal amount of such senior notes is available for issuance
and sale under the Registration Statement (as defined in Section 1(d)
hereof). The Registration Statement has been prepared by the Company under
the provisions of the Act and the rules and regulations promulgated by the
Commission thereunder (collectively referred to as the "Rules and
Regulations") and declared effective by the Commission. The Notes are
registered under the Act 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 Company's knowledge, threatened.
Copies of the Registration Statement and any Preliminary Prospectus (as
defined in Section 1(d) hereof) have been delivered to you. The offering
of the Notes is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Notes and the offering
and sale thereof required by the Act and the Rules and Regulations to be
included in the Final Prospectus, the Basic Prospectus includes all such
information required by the Act and the Rules and Regulations to be
included therein as of the Effective Date (as defined in Section 1(d)
hereof). The Company will file the Final Prospectus with the Commission
pursuant to Rule 424(b) and shall include therein all required information
with respect to the Notes and the offering
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and sale thereof and, except to the extent that you shall agree in writing
to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time (as defined in Section 1(d)
hereof) or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein.
(c) At the Effective Date, the Registration Statement, the Mortgage
and the Indenture fully complied, and, when the Final Prospectus is
delivered to you for your use in making confirmations of sales of the
Notes, the Final Prospectus (and any supplement thereto) will fully comply,
in all material respects with the applicable requirements of the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the respective rules and regulations promulgated by the Commission
thereunder; the documents incorporated or deemed to be incorporated by
reference in the Final Prospectus pursuant to Item 12 of Form S-3, on the
date filed with the Commission pursuant to the Exchange Act, fully complied
or will fully comply in all material respects with the applicable
requirements of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder; at the Effective Date, the Registration
Statement did 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; and, on the date it is delivered to
you for your use in making confirmations of sales of the Notes and on the
Closing Date (as defined in Section 3 hereof), the Final Prospectus (as it
may be supplemented) will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties in this Section 1(c) as to (i) the parts of
the Registration Statement that constitute the Statements of Eligibility
under the Trust Indenture Act of the Trustees on Form T-1 and Form T-2 or
(ii) the information relating to you contained in the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by you specifically for inclusion therein.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean the later of
(i) the date Registration Statement No. 333-18473 or the most recent
post-effective amendment thereto was or is declared effective by the
Commission under the Act and (ii) the date of the filing of the Company's
most recent Annual Report on Form 10-K with the Commission under the
Exchange Act. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Registration
Statement" shall mean Registration Statement No. 333-18473, as amended by
Post-Effective Amendment No. 1 thereto and any other amendments thereto as
may have been required to the date of this Agreement. "Basic Prospectus"
shall mean the prospectus contained in and forming a part of the
Registration Statement at the Effective Date, including all documents filed
by the Company with the Commission under the Exchange Act that are, or are
deemed to be, incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act at the Execution Time. "Preliminary Prospectus" shall
mean any
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preliminary prospectus supplement that describes the Notes and the offering
thereof and is used prior to the filing of the Final Prospectus, together
with the Basic Prospectus. "Final Prospectus" shall mean the prospectus
supplement that describes the Notes and the offering and sale thereof to be
filed with the Commission pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus. "Rule 415," "Rule 424," "Rule 429,"
"Regulation S-X" and "Regulation S-K" shall mean such Rules and Regulations
under the Act. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 that does not commence promptly after the effective
date of a registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the securities so
offered. Any reference herein to the terms "amend," "amendment,"
"supplement" or terms of similar import with respect to the Registration
Statement or the Final Prospectus shall mean amendments or supplements to
the Registration Statement or the Final Prospectus, as the case may be, and
any documents filed by the Company with the Commission under the Exchange
Act that are, or are deemed to be, incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the Act, in each case
filed after the Execution Time and prior to the completion of the
distribution of the Notes; provided, however, that any supplement to the
Final Prospectus filed with the Commission pursuant to Rule 424(b) with
respect to an offering of the Company's senior notes other than the Notes
shall not be deemed to be a supplement to, or a part of, the Final
Prospectus.
(e) The financial statements of the Company filed as part of or
incorporated by reference in the Registration Statement and the Final
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
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise indicated therein.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified or examined certain financial
statements incorporated by reference in the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations.
(f) The Indenture has been duly authorized by the Company and the
Indenture has been duly qualified under the Trust Indenture Act; and, when
the Indenture is duly executed and delivered by the Company at the Closing
Date, assuming due authorization, execution and delivery thereof by the
Trustee, the Indenture will constitute a valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as limited by bankruptcy, insolvency or other applicable laws
affecting the enforcement of creditors' rights generally and except for the
availability of equitable remedies.
(g) The Notes have been duly authorized by the Company and, when the
Notes have been duly executed, authenticated, issued and delivered as
contemplated hereby and by the Indenture, will constitute valid and binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, except as limited by bankruptcy, insolvency or
other applicable laws affecting the
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enforcement of creditors' rights generally and except for the availability
of equitable remedies, and will be entitled to the security afforded by the
Indenture.
(h) The Mortgage has been duly authorized by the Company and the
Mortgage has been duly qualified under the Trust Indenture Act; and, when
the Supplemental Indenture is duly executed and delivered by the Company at
the Closing Date, assuming due authorization, execution and delivery
thereof by the Corporate Trustee and the Co-Trustee, the Mortgage will
constitute a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as enforcement of
provisions of the Mortgage may be limited by the laws of the State of
Illinois affecting the remedies for the enforcement of the security
provided for therein or as limited by bankruptcy, insolvency or other
applicable laws affecting the enforcement of creditors' rights generally
and except for the availability of equitable remedies.
(i) The First Mortgage Bonds have been duly authorized by the Company
and, when the First Mortgage Bonds have been duly executed, authenticated,
issued and delivered as contemplated by the Mortgage, will constitute valid
and binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except as limited by bankruptcy,
insolvency or other applicable laws affecting the enforcement of creditors'
rights generally and except for the availability of equitable remedies,
will be entitled to the security afforded by the Mortgage and will be owned
and held by the Trustee, in trust, for the benefit of the holders of the
Notes.
(j) Except as set forth in or contemplated by the Final Prospectus,
since the most recent date as of which information is given in the Final
Prospectus, (i) the Company has not sustained any loss or interference
material to the Company 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, (ii) 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 (iii) there has not been any material
change in the stockholder's equity (except for regular quarterly
dividends), short-term debt or long-term debt of the Company, or any
material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or other), business,
net worth or results of operations of the Company.
(k) Except as set forth in the Final Prospectus, there is not pending
or, to the knowledge of the Company, threatened, any action, suit or
proceeding, to which the Company is a party, before or by any court or
governmental agency or body, that might result in any material adverse
change in the condition (financial or other), business, net worth or
results of operations of the Company, or might materially and adversely
affect the properties or assets of the Company.
(l) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated herein will
not conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) any contract,
indenture, mortgage, deed of trust, loan or note
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agreement, lease or other agreement or instrument to which the Company is a
party or by which it is bound and which is material to the Company or to
which any material property of the Company is subject, (ii) the Company's
articles of incorporation or by-laws, or (iii) any provision of any law
applicable to the Company or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company and that
is material to the Company or any of its material properties; the Illinois
Commerce Commission has issued its final order (the "ICC Order")
authorizing the issuance and sale of the Notes by the Company and the
issuance of the First Mortgage Bonds by the Company, the ICC Order is in
full force and effect and, after giving effect to the cancellation by the
Company prior to the Execution Time of the credit facilities entered into
by the Company in reliance on such order, is sufficient to authorize the
transactions contemplated by this Agreement; and no other consent,
approval, authorization or order of any court or governmental agency or
body is legally required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance and sale of
the Notes by the Company hereunder and the issuance of the First Mortgage
Bonds by the Company pursuant to the Mortgage, except such as may be
required under state securities laws and except such as has been obtained
under the Act and the Trust Indenture Act; and the Company has full power
and lawful authority to authorize, issue and sell the Notes on the terms
and conditions herein set forth and to authorize and issue the First
Mortgage Bonds pursuant to the Mortgage.
(m) This Agreement has been duly authorized, executed and delivered
by the Company.
(n) Except as set forth in the Final Prospectus, the Company (i) is
in compliance with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable Environmental
Laws to conduct its business and (iii) is in compliance with all terms and
conditions of any such permit, license or approval, except as to clauses
(i), (ii) and (iii) where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse
effect on the Company.
(o) Substantially all of the permanent, fixed properties of the
Company are owned in fee simple or are held under valid leases, in each
case subject only to the liens of current mortgages (including the lien of
the Mortgage) and "permitted encumbrances and liens" as defined in the
Mortgage. 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.
(p) The Indenture, the Notes, the Mortgage and the First Mortgage
Bonds conform in all material respects to the descriptions thereof in the
Final Prospectus.
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2. PURCHASE AND SALE. Subject to the terms and conditions, and in
reliance upon the representations and warranties, herein set forth, the Company
agrees to issue and sell to you, and you agree to purchase from the Company, the
Notes at _____% of the principal amount of the Notes [plus accrued interest
thereon from December ___, 1998 to the Closing Date].
3. TIME AND PLACE OF CLOSING; DELIVERY OF THE NOTES. Delivery of
the Notes shall be made at the offices of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
New York, New York, at 10:00 A.M., New York time, on December ___, 1998, or at
such other time on the same or such other day as shall be agreed upon by the
Company and you, against payment of the purchase price therefor by wire transfer
of immediately available funds. The hour and date of such delivery and payment
are herein called the "Closing Date."
The Notes shall be delivered to you in book-entry only form through
the facilities of The Depository Trust Company in New York, New York. The
certificate for the Notes shall be in the form of one typewritten global bond in
fully registered form, in the aggregate principal amount of the Notes, and
registered in the name of Cede & Co., as nominee of The Depository Trust
Company. The Company agrees to make the Notes available to you for checking not
later than 2:30 P.M., New York time, on the last business day preceding the
Closing Date at such place as may be agreed upon between you and the Company, or
at such other time or date as may be agreed upon between you and the Company.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with
you that:
(a) The Company will use its best efforts to cause any post-effective
amendment to the Registration Statement, if not effective at the Execution
Time, to become effective. Prior to the termination of the offering of the
Notes, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished to you a copy for your review
prior to filing and will not file any such proposed amendment or supplement
to which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto, to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to you of such timely filing. The
Company will promptly advise you (i) when any post-effective amendment to
the Registration Statement, if not effective at the Execution Time, shall
have become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule 424(b),
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the institution or threatening of any proceeding for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Notes is
required to be delivered by you or any dealer under the Act, any event
occurs as a result of which the Final Prospectus as then supplemented would
include any 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, not misleading, or
if it shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act, the Exchange Act or the
respective rules and regulations promulgated by the Commission thereunder,
the Company promptly will prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement that will correct such statement or omission or effect such
compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to you an earning statement or statements of
the Company that will satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(d) The Company will furnish to you and your counsel, without charge,
copies of the Registration Statement in the form that it or the most recent
post-effective amendment thereto became effective and, so long as delivery
of a prospectus by you or any dealer is required by the Act, as many copies
of the Final Prospectus and any supplement thereto as you may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will cooperate in good faith with you in qualifying
the Notes for offer and sale under the laws of such jurisdictions as you
may designate, and will maintain such qualifications in effect so long as
required for the distribution of the Notes.
(f) The Company will not, without your consent, offer, guarantee,
sell or contract to sell, or otherwise dispose of, by public offering, or
announce the public offering of, any debt securities other than the Notes
until the earlier to occur of (i) the Closing Date and (ii) the date of
termination of fixed price offering restrictions with respect to the Notes.
(g) The Company will apply the net proceeds from the sale of the
Notes to be sold by it hereunder for the purposes set forth in the Final
Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. Your
obligation to purchase the Notes shall be subject to the accuracy of, and
compliance with, the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificate furnished by the
Company on the Closing Date, to the performance by the Company of its
obligations to be performed hereunder on or prior to the Closing Date and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been
filed in the manner and within the time period required by the applicable
paragraph of Rule 424(b) and no stop order suspending the effectiveness of
the Registration Statement
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shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to you the opinion of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary of the
Company, dated the Closing Date, to the effect that:
(i) the Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of Illinois
and has the necessary corporate power and authority to own and operate
its properties and conduct the business it is described as conducting
in the Final Prospectus;
(ii) the Company has full power and authority to execute and
deliver, and perform its obligations under, the Mortgage and the
Indenture, and to issue and sell the Notes under the Indenture and to
issue the First Mortgage Bonds under the Mortgage, and each of the
Mortgage and the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a valid and legally binding instrument
of the Company enforceable against the Company in accordance with its
terms;
(iii) the Notes 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 of this
Agreement, will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their
terms and will be entitled to the benefit of the security afforded by
the Indenture;
(iv) the First Mortgage Bonds have been duly authorized,
executed and issued by the Company and, assuming due authentication
thereof by the Corporate Trustee and upon delivery in accordance with
the terms of the Mortgage, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and will be entitled to the benefit of the
security afforded by the Mortgage;
(v) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company of a character required to be disclosed in the Registration
Statement or the Final Prospectus that is not adequately disclosed
therein, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
the Final Prospectus, or to be filed as an exhibit, that is not
described or filed as required; and the statements included or
incorporated in the Final Prospectus describing any legal proceedings
or material contracts or agreements relating to the Company fairly
summarize such matters;
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(vi) the Registration Statement has become, and on the Closing
Date is, effective under the Act; any required filing of any
Preliminary Prospectus and the Final Prospectus, and any supplement
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by the applicable paragraph of Rule
424(b); 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; at the Effective Date, the Registration
Statement and, at the time it was filed pursuant to Rule 424(b), the
Final Prospectus (except in each case for the financial statements and
other financial and statistical data contained or incorporated by
reference therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act,
as applicable, and the respective rules and regulations promulgated by
the Commission thereunder; with respect to the documents filed by the
Company with the Commission pursuant to the Exchange Act, and
incorporated or deemed to be incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3, such documents, on the
date filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and the
rules and regulations promulgated by the Commission thereunder; and
such counsel has no reason to believe that, at the Effective Date, the
Registration Statement 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 the
Final Prospectus, at the time it was filed pursuant to Rule 424(b) and
at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except in
each case for the financial statements and other financial and
statistical data contained or incorporated by reference therein, as to
which such counsel need express no opinion);
(vii) the Company has full power and authority to execute and
deliver, and perform its obligations under, this Agreement and this
Agreement has been duly authorized, executed and delivered by the
Company;
(viii) the Illinois Commerce Commission has duly authorized the
issue and sale of the Notes by the Company and the issue of the First
Mortgage Bonds by the Company pursuant to the ICC Order; the ICC Order
is sufficient for the issue and sale of the Notes by the Company as
contemplated by this Agreement and the issue of the First Mortgage
Bonds by the Company as contemplated by the Mortgage and is in full
force and effect; and no other consent, approval, authorization or
order of any court or governmental agency or body (other than under
the Act or the Trust Indenture Act, which have been obtained, or in
connection or compliance with the provisions of the securities or blue
sky laws of any jurisdiction, as to which such counsel need express no
opinion) is legally required in connection with the execution,
delivery and performance of this Agreement, the Mortgage and the
Indenture by the Company, the authorization,
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issuance and sale of the Notes by the Company or the authorization and
issuance of the First Mortgage Bonds by the Company;
(ix) the execution, delivery and performance of the Mortgage,
Indenture, the First Mortgage Bonds, the Notes and this Agreement by
the Company, and the fulfillment of the terms thereof and hereof by
the Company, will not conflict or result in a breach of any of the
terms or provisions of, or constitute a default under any provision
of, (w) the Company's articles of incorporation or by-laws, (x) the
Mortgage or the Indenture, (y) any other indenture, mortgage, deed of
trust or other agreement or instrument, of which such counsel has
knowledge, to which the Company is now a party, or (z) any provision
of any law applicable to the Company or, to the best of such counsel's
knowledge, any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
activities or properties;
(x) the provisions of the Notes and the Indenture and the
First Mortgage bonds and the Mortgage conform in all material respects
as to legal matters to the statements concerning them contained in the
Final Prospectus under "Description of Notes," "Description of Senior
Notes" and "Description of Senior Note Mortgage Bonds;"
(xi) the First Mortgage Bonds have been duly delivered,
pledged, assigned and transferred to the Trustee, and the Indenture
constitutes a direct and valid first lien upon such First Mortgage
Bonds; and
(xii) except as otherwise set forth in the Final Prospectus,
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 Final Prospectus,
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.
Such counsel's opinion set forth in paragraphs (ii), (iii) and (iv)
above is subject to the qualifications that (i) the validity and the
enforceability of the Company's obligations under the Indenture and the Notes
and the Mortgage and the First Mortgage Bonds may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally, by general equitable
principles (whether considered in a proceeding in equity or at law) and by an
implied covenant of good faith, reasonableness and fair dealing and (ii)
enforcement of provisions of the Mortgage may be
11
limited by the laws of the State of Illinois affecting the remedies for 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.
Such opinion shall also state that such counsel has no knowledge of
any litigation, pending or threatened, that challenges the validity of the
Notes, the Indenture, the First Mortgage Bond, the Mortgage or this Agreement,
or which seeks to enjoin the performance of the Company's obligations hereunder
or thereunder or that might have a material adverse effect on the business,
properties or financial condition of the Company except as disclosed in or
contemplated by the Final Prospectus.
In rendering such opinion, such counsel may rely (i) as to factual
matters, upon certificates or written statements from appropriate
representatives of the Company or upon certificates of public officials, (ii) as
to matters involving the application of the laws of the State of Illinois, upon
an opinion of Sorling, Northrup, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Ltd. or other
Illinois counsel reasonably satisfactory to you, provided that such opinion
states that you and Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, your counsel, may rely
on such opinion as if it were addressed to them and (iii) as to matters
involving the application of the laws of the State of New York, upon the opinion
of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, your counsel, delivered to you pursuant
to Section 5(d) hereof. In such opinion, such counsel may state that while such
counsel has examined the Registration Statement and the Final Prospectus, such
counsel necessarily assumes the correctness and completeness of the statements
made and information included therein and takes no responsibility therefor,
except insofar as such statements relate to him and as set forth in paragraph
(x) above.
Such counsel's opinion may further state that it is addressed to you
and is rendered solely for your benefit and may not be relied upon in any manner
by any other person (other than Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, your
counsel, to the extent stated in its opinion to you on the Closing Date) without
such counsel's prior written consent.
(c) The Company shall have furnished to you the opinion of Sorling,
Northrup, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Ltd., Illinois counsel for the Company,
dated the Closing Date, to the effect that:
(i) the statements in the Final Prospectus 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;
(ii) the Company has good and sufficient title to all or
substantially all the permanent fixed properties and the material
franchises, permits and licenses now owned by it, including those
described or referred to in the Final Prospectus, except as may be
otherwise indicated therein, and no notice has been given to the
Company by any governmental authority of any proceeding to condemn,
purchase or otherwise acquire any material properties of the Company
and, so far as such counsel knows, no such proceeding is contemplated;
12
(iii) the Mortgage has been duly filed for recording and
recorded in each county in the State of Illinois in which any
permanent fixed property described in and conveyed by the Mortgage and
now owned by the Company is located, and constitutes a legally valid
and direct enforceable first mortgage lien (except as federal
bankruptcy laws may affect the validity of the lien of the Mortgage
with respect to proceeds, products, rents, issues or profits of the
property subject to such lien realized and additional property
acquired within 90 days prior to and after the commencement of a case
under such laws and except as enforcement of provisions thereof may be
limited by the laws of the State of Illinois affecting the remedies
for the enforcement of the security provided for in the Mortgage,
which laws do not, in the opinion of such counsel, make such remedies
inadequate for realization of the benefits of such security, or
limited by bankruptcy or insolvency laws or other applicable laws
affecting the enforcement of creditors' rights generally or by general
principles of equity) upon substantially all of the Company's fixed
properties and franchises used or useful in its public utility
businesses free from all prior or equal ranking liens, charges or
encumbrances, subject only to permitted encumbrances and liens, as
defined in the Mortgage, and to the provisions contained in the
Mortgage for the release, or substitution and release, of property
from the lien thereof;
(iv) no recordation, registration or filing of the Indenture
or any supplemental indenture or instrument of further assurance is
necessary in the State of Illinois to make effective the security
interest intended to be created by the Indenture with respect to the
First Mortgage Bonds; and
(v) substantially all physical properties and franchises used
or useful in the Company's public utility businesses (other than those
of the character not subject to the lien of the Mortgage) and now
owned by the Company are subject to the lien of the Mortgage, subject
only to permitted encumbrances and liens, as defined in the Mortgage,
and to the provisions contained in the Mortgage for the release, or
substitution and release, of property from the lien thereof. All
physical properties and franchises used or useful in the Company's
public utility businesses (other than those of the character not
subject to the lien of the Mortgage) hereafter acquired by the Company
and situated in counties in the State of Illinois in which the
Mortgage shall be of record will, upon such acquisition, become
subject to the lien of the Mortgage, subject, however, to such
encumbrances and liens as are permitted thereby.
(d) You shall have received from Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
your counsel, an opinion, dated the Closing Date, with respect to the issuance
and sale of the Notes, this Agreement, the Indenture, the Registration
Statement, the Final Prospectus (and any supplement thereto) and other related
matters as you may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Company shall have furnished to you a certificate of the
Company, signed by the President and Chief Executive Officer of the Company and
the principal financial
13
or accounting officer of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) 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 of their knowledge,
threatened;
(ii) since the most recent date as of which information is
given in the Final Prospectus (and any supplement thereto), there has
been no material change in the stockholder's equity (except for
regular quarterly dividends), short-term debt or long-term debt of
the Company or any material adverse change, or any development
involving a prospective material adverse change, in the condition
(financial or other), business, net worth or results of operations
of the Company, except as set forth in or contemplated by the Final
Prospectus (and any supplement thereto); and
(iii) the other representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date.
(f) At the Execution Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and
PricewaterhouseCoopers LLP shall have furnished to you letters, dated the
Execution Time, in form and substance satisfactory to you stating in effect
that:
(i) they are independent accountants within the meaning of
the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder;
(ii) with respect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in their opinion,
the audited financial statements and financial statement schedules
incorporated in the Registration Statement and the Final Prospectus
and audited by them comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related published rules and regulations;
(iii) with respect to PricewaterhouseCoopers LLP, based on the
performance of the procedures specified by the American Institute of
Certified Public Accountants for review of interim financial
information as described in Statement of Auditing Standards No. 71,
INTERIM FINANCIAL INFORMATION, on unaudited financial statements
incorporated by reference in the Registration Statement and the Final
Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and reading the minutes of the
meetings of the stockholder, directors and principal committees of the
Company, nothing came to their attention which caused them to believe
that:
14
(A) any unaudited financial statements incorporated by
reference in the Registration Statement and the Final Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act, and with the published rules
and regulations of the Commission thereunder, or any material modifications
should be made for them to be in conformity with generally accepted
accounting principles;
(B) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in the
Registration Statement and the Final Prospectus, there were any changes, at
the date of the latest available financial statements of the Company and at
a subsequent date not more than five business days prior to the date of the
letter, in the capital stock or the long-term debt of the Company as
compared with the amounts shown in the most recent consolidated balance
sheet included or incorporated by reference in the Registration Statement
and the Final Prospectus except in all instances for changes that the
Registration Statement or the Final Prospectus discloses have occurred or
may occur or as may result from declarations of dividends, the repayment or
redemption of long-term debt, the amortization of premium or discount on
long-term debt, or any increases in long-term debt in respect of previously
issued pollution control, solid waste disposal or industrial development
revenue bonds, or, for the twelve-month period ended as of the date of the
latest available financial statements of the Company and at a subsequent
date not more than five days prior to the date of the letter there were any
decreases in excess of 3%, as compared with the comparable period of the
preceding year, in operating revenues, operating income, net income or
ratio of earnings to fixed charges, except in all instances for decreases
that the Registration Statement or the Final Prospectus discloses have
occurred or may occur, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by you; or
(C) the amounts included in any unaudited "capsule"
information included or incorporated by reference in the Registration
Statement and the Final Prospectus do not agree with the amounts set forth
in the unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements incorporated by
reference in the Registration Statement and the Final Prospectus; and
(iv) they have, as applicable, performed certain other
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company) set forth or
incorporated by reference in the Registration Statement and the Final
Prospectus, as reasonably requested by you, agrees with the accounting
records of the Company, excluding any questions of legal
interpretation.
15
References to the Final Prospectus in this Section 5(f) include any
supplement thereto at the date of the letter.
In addition, at the Closing Date, PricewaterhouseCoopers LLP shall
have furnished to you a letter, dated the Closing Date, in form and substance
satisfactory to you, to the effect set forth above as applicable to them.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in Section 5(f) hereof or (ii) any
change, or any development involving a prospective change, in or affecting
the business or properties of the Company the effect of which, in any case
referred to in clause (i) or (ii) above, is, in your judgment, so material
and adverse as to make it impracticable or inadvisable to proceed with the
offering or delivery of the Notes.
(h) On or prior to the Closing Date, you shall have received
satisfactory evidence that the Notes have received ratings of [A+] or
higher by Standard & Poor's and [A3] or higher by ▇▇▇▇▇'▇ Investors
Service, Inc., and that such ratings are in effect on the Closing Date.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) promulgated by the Commission under the Act) or any
notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction
of the possible change.
(j) The ICC Order shall be in full force and effect at the Closing
Date.
(k) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request, including without limitation evidence of the
cancellation of the credit facilities referred to in Section 1(l) hereof.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to you and your counsel, this
Agreement and all of your obligations hereunder may be canceled by you at, or at
any time prior to, the Closing Date. Notice of such cancellation shall be given
to the Company in writing (by facsimile or otherwise) or by telephone confirmed
in writing. Any such cancellation shall be without liability of either party to
the other party except as otherwise provided in Section 6 hereof and except for
any liability under Section 7 hereof.
6. EXPENSES. The Company will, except as herein provided, pay all
fees, expenses and taxes (except transfer taxes) in connection with (i) the
preparation and filing of the Registration Statement and any post-effective
amendment thereto, (ii) the printing, issuance and delivery of the Notes and the
First Mortgage Bonds and the preparation, execution, printing and
16
recordation of the Supplemental Indenture, (iii) legal counsel relating to the
qualification of the Notes under the securities or blue sky laws of various
jurisdictions in an amount not to exceed $3,500, (iv) the printing and delivery
to you of reasonable quantities of copies of the Registration Statement, the
preliminary (and any supplemental) blue sky survey, any Preliminary Prospectus
and the Final Prospectus and any amendment or supplement thereto, (v) the rating
of the Notes by one or more nationally recognized statistical rating agencies,
and (vi) filings or other notices (if any) with or to, as the case may be, the
National Association of Securities Dealers, Inc. in connection with its review
of the terms of the offering. Except as provided above, the Company shall not
be required to pay any of your expenses, except that, if the sale of the Notes
provided for herein is not consummated because any condition to your obligation
set forth in Section 5 hereof is not satisfied, because of any termination
pursuant to Section 8 hereof or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any
provision hereof other than by reason of a default by you, the Company will
reimburse you upon demand for all out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by you in
connection with the proposed purchase and sale of the Notes.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold you harmless, your
directors, officers, employees and agents and each person who controls you
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus or the
Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to you furnished to the Company by you specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability that the Company may otherwise have.
(b) You agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, and
each person who controls the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
written information relating to you furnished to the Company by you
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
that you may
17
otherwise have. The Company acknowledges for purposes of this Agreement
that the statements set forth in the second and third paragraphs under the
caption "Underwriting" in the Final Prospectus constitute the only
information relating to you furnished in writing by you for inclusion in
the documents referred to in the foregoing indemnity, and you confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under Section 7(a) or (b) hereof
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in Section 7 (a) or (b) hereof.
The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); PROVIDED,
HOWEVER, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in 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. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in Section 7(a) or (b)
hereof is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and you agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively, "Losses") to which the Company and you
18
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by you from the offering and sale of
the Notes; PROVIDED, HOWEVER, that in no case shall you be responsible for
any amount in excess of the underwriting discount applicable to the Notes
purchased by you hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and you shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of you in
connection with the statements or omissions that resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses), and benefits received by you shall be
deemed to be equal to the total underwriting discount, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or you. The Company and you
agree that it would not be just and equitable if contribution pursuant to
this Section 7(d) were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 7(d), 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. For
purposes of this Section 7, each person who controls you within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act and each
director, officer, employee and agent thereof shall have the same rights to
contribution as you, and each person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of
this Section 7(d).
8. TERMINATION. This Agreement shall be subject to termination in
your absolute discretion, by notice given to the Company at any time prior to
delivery of and payment for the Notes, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, in
either case, by The New York Stock Exchange, Inc., the Commission or other
governmental authority; (ii) a banking moratorium shall have been declared by
federal, Illinois or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in your judgment,
impracticable or inadvisable to proceed with the offering or delivery of the
Notes. Any such termination shall be without liability of either party to the
other party except as otherwise provided in Section 6 hereof and except for any
liability under Section 7 hereof.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement shall remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and shall survive
19
delivery of and payment for the Notes. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
10. NOTICES. All communications hereunder shall be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
electronically transmitted and confirmed, to ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing
Director; or, if sent to the Company, shall be mailed, delivered or
electronically transmitted and confirmed, to Central Illinois Public Service
Company, c/o Ameren Services Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇; attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President.
11. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons, directors and officers
referred to in Section 7, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained; this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of the parties hereto and their respective successors
and said controlling persons, directors and officers and for the benefit of no
other person, firm or corporation. No purchaser of any Notes from you shall be
deemed to be a successor by reason merely of such purchase.
12. APPLICABLE LAW. The rights and duties of the parties hereto
under this Agreement shall, pursuant to New York General Obligations Law Section
5-1401, be governed by, and construed in accordance with, the law of the State
of New York.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each such
counterpart, when so executed and delivered, shall be deemed to be an original,
and all of such counterparts shall, taken together, constitute one and the same
agreement.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between you
and the Company.
Very truly yours,
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By:
-------------------------------
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By:
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Title:
21
