Exhibit 1.1
UNDERWRITING AGREEMENT
VECTREN UTILITY HOLDINGS, INC.
(An Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
Dated July 24, 2003
Table of Contents
Page
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SECTION 1. Representations and Warranties.....................................3
(a) Representations and Warranties by the Company and the
Guarantors.........................................................3
(b) Officers' Certificates............................................12
SECTION 2. Sale and Delivery to Underwriters; Closing........................12
(a) Underwritten Securities...........................................12
(b) Option Underwritten Securities....................................12
(c) Payment...........................................................12
(d) Denominations; Registration.......................................13
SECTION 3. Covenants of the Company and the Guarantors...................... 13
(a) Compliance with Securities Regulations and Commission
Requests .........................................................13
(b) Filing of Amendments..............................................14
(c) Delivery of Registration Statements...............................14
(d) Delivery of Prospectuses..........................................14
(e) Continued Compliance with Securities Laws.........................14
(f) Blue Sky Qualifications...........................................15
(g) Earnings Statement................................................15
(h) Use of Proceeds...................................................15
(i) Listing...........................................................15
(j) Restriction on Sale of Securities.................................15
(k) Reporting Requirements............................................16
(l) Additional Guarantors.............................................16
SECTION 4. Payment of Expenses...............................................16
(a) Expenses..........................................................16
(b) Termination of Agreement..........................................17
SECTION 5. Conditions of Underwriters' Obligations...........................17
(a) Effectiveness of Registration Statement...........................17
(b) Opinion of General Counsel of the Company.........................17
(c) Opinion of Counsel for Company and the Guarantors.................17
(d) Opinion of Counsel for Underwriters...............................18
(e) Officers' Certificate.............................................18
(f) Accountant's Comfort Letter.......................................18
(g) Bring-down Comfort Letter.........................................18
(h) Ratings...........................................................18
(i) Approval of Listing...............................................19
(j) No Objection......................................................19
(k) Lock-up Agreements................................................19
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(l) Over-Allotment Option.............................................19
(m) Additional Documents..............................................20
(n) Termination of Terms Agreement....................................20
SECTION 6. Indemnification...................................................20
(a) Indemnification of Underwriters...................................20
(b) Indemnification of Company, Directors and Officers................21
(c) Actions against Parties; Notification.............................22
(d) Settlement without Consent if Failure to Reimburse................22
SECTION 7. Contribution......................................................22
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery..........................................................24
SECTION 9. Termination.......................................................24
(a) Underwriting Agreement............................................24
(b) Terms Agreement...................................................24
(c) Liabilities.......................................................25
SECTION 10. Default by One or More of the Underwriters........................25
SECTION 11. Notices...........................................................25
SECTION 12. Parties...........................................................26
SECTION 13. GOVERNING LAW AND TIME............................................26
SECTION 14. Effect of Headings................................................26
SECTION 15. Counterparts......................................................26
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SCHEDULES
Schedule A - List of Subsidiaries...................................Sch A-1
EXHIBITS
Exhibit A - Terms Agreement.............................................A-1
Exhibit B - Form of Opinion of General Counsel of the Company...........B-1
Exhibit C - Form of Opinion of Company's Counsel........................C-1
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VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Debt Securities
UNDERWRITING AGREEMENT
July 24, 2003
ABN AMRO Incorporated
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Banc One Capital Markets, Inc.
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Vectren Utility Holdings, Inc., an Indiana corporation (the "Company"),
proposes to issue and sell an aggregate principal amount of senior debt
securities not to exceed $200,000,000 (the "Debt Securities"), from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale. The Debt Securities will be issued in one or more series as senior
indebtedness under an indenture, dated as of October 19, 2001 (as modified,
supplemented or amended from time to time, the "Indenture"), among the Company,
as issuer, the Initial Guarantors (as defined below), as guarantors, and U.S.
Bank Trust National Association, as trustee (the "Trustee"), and, subject to the
terms of the Indenture, will be fully and unconditionally guaranteed as to
payment of principal, premium (if any) and interest (the "Guarantees," and
together with the Debt Securities, the "Securities") by Indiana Gas Company,
Inc., an Indiana and Ohio corporation, Southern Indiana Gas and Electric
Company, an Indiana corporation, and Vectren Energy Delivery of Ohio, Inc., an
Ohio corporation (collectively, the "Initial Guarantors" and, together with each
other subsidiary of the Company that pursuant to the terms of the Indenture
guarantees the Company's obligations under the Debt Securities, the
"Guarantors").
Each series of Debt Securities may vary, as applicable, as to title,
aggregate principal amount, rank, interest rate or formula and timing of
payments thereof, stated maturity date, redemption and/or repayment provisions,
sinking fund requirements and any other variable terms established by or
pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities through
ABN AMRO Incorporated and Banc One Capital Markets, Inc. (the
"Representatives"), or through an underwriting syndicate managed by the
Representatives, the Company and, if applicable, the Guarantors will enter into
an agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, Representatives and
such other underwriters, if any, selected by the Representatives (the
"Underwriters", which term shall include the Representatives, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Securities shall specify the aggregate principal
amount of Debt Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than the Representatives acting as co-manager in connection
with such offering, the aggregate principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the aggregate principal amount
of Debt Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the term "Underwritten Securities" shall include
the Initial Underwritten Securities and all or any portion of any Option
Underwritten Securities. The Terms Agreement, which shall be substantially in
the form of Exhibit A hereto, may take the form of an exchange of any standard
form of written telecommunication between the Company and the Representatives
acting for themselves and, if applicable, for any other Underwriters. Each
offering of Underwritten Securities through the Representatives will be governed
by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company and the Initial Guarantors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-104186) for the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act"), and the
Company and the Initial Guarantors have or will have filed such post-effective
amendments thereto as may be required prior to the execution of the applicable
Terms Agreement and each such post-effective amendment has been declared
effective by the Commission. Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the respective forms first furnished to the
Underwriters by the Company for use in connection with the offering of the
Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include the information
in all documents incorporated therein by reference pursuant to the Securities
Exchange Act of 1934, as
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amended (the "1934 Act"), prior to the execution of the applicable Terms
Agreement; provided, further, that if the Company and the Guarantors file a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement; and provided, further, that if
the Company elects to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall also be deemed to include the final or
preliminary prospectus and the applicable term sheet or abbreviated term sheet
(the "Term Sheet"), as the case may be, in the respective forms first furnished
to the Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references to the date of the Prospectus shall mean the
date of the Term Sheet. A "preliminary prospectus" shall be deemed to refer to
(i) any prospectus used before the Registration Statement became effective and
(ii) any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the initial
delivery of the Prospectus to the Underwriters by the Company. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
Prospectus, Term Sheet or preliminary prospectus or to any amendment or
supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included," "disclosed" or
"stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to include all such
financial statements and notes and schedules thereto and other information which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, prior to the execution of the
applicable Terms Agreement; and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to include the information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, at or after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Guarantors. Each
of the Company and the Guarantors, jointly and severally, represents and
warrants to the Representatives, as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. Each of the Company
and the Guarantors meets the requirements for use of Form S-3 under the
1933 Act. The Registration Statement (including any Rule 462(b)
Registration Statement) has become effective under the 1933 Act and no stop
order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued
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under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company and the Guarantors, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
the Indenture has been duly qualified under the 1939 Act.
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K/A with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not 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. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will 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. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to the
Statement of Eligibility of the Trustee on Form T-1 or statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company
or a Guarantor in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did
not and will not include an 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.
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(3) Independent Accountants. The accountants that audited the
Company's financial statements and supporting schedules thereto included in
the Registration Statement and the Prospectus, as specified therein, are
independent public accountants of the Company as required by the 1933 Act
and the 1933 Act Regulations.
(4) Financial Statements. The consolidated financial statements
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included
in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and the summary financial information, if any,
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the Prospectus. The
Company is not required to include any pro forma financial statements in
the Registration Statement or the Prospectus under the 1933 Act or the 1933
Act Regulations or any document required to be filed with the Commission
under the 1934 Act or the 1934 Act Regulations. The financial statement
presentation of the Company and the Guarantors in the Prospectus satisfies
the conditions of Rule 3-10(f) of Regulation S-X promulgated under the 1933
Act.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation under the laws of the
State of Indiana and has power and authority (corporate and other) to own,
lease and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations under, or
as contemplated under, this Underwriting Agreement, the applicable Terms
Agreement, the Indenture and the Underwritten Securities. The Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing could not reasonably be expected to result in a Material Adverse
Effect.
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(7) Good Standing of Guarantors. Each Guarantor has been duly
organized, is validly existing and is in good standing under the laws of
the jurisdiction of its incorporation or organization (to the extent
applicable), has power and authority (corporate and other) to own, lease
and operate its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement, the applicable Terms
Agreement and its Guarantee and is duly qualified as a foreign corporation
or limited liability company, as applicable, to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good standing
could not reasonably be expected to result in a Material Adverse Effect.
All of the issued and outstanding capital stock or other equity interests
of each Guarantor have been duly authorized and are validly issued, are
fully paid and non-assessable and are owned by the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for 3,437 shares of
non-voting 8.50% redeemable preferred stock of Southern Indiana Gas and
Electric Company. None of the outstanding shares of capital stock or other
equity interests of any Guarantor were issued in violation of preemptive or
other similar rights of any securityholder of such Guarantor. The only
subsidiaries of the Company are (a) the Guarantors and (b) certain other
subsidiaries which, individually or in the aggregate, are "minor" within
the meaning of Rule 3-10 of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company are as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, contemplated
under this Underwriting Agreement). All of the issued and outstanding
shares of capital stock of the Company have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and
none of such shares of capital stock were issued in violation of preemptive
or other similar rights of any securityholder of the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by each of the Company and the Guarantors.
(10) Authorization of the Underwritten Securities. The Underwritten
Securities have been, or as of the date of the applicable Terms Agreement
will have been, duly authorized by the Company for issuance and sale
pursuant to this Underwriting Agreement and such Terms Agreement. Such
Underwritten Securities, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement is
6
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Underwritten Securities payable in a foreign currency (or a
foreign currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. Such Underwritten Securities
will be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(11) Authorization of Guarantees. The Guarantees have been, or as of
the date of the applicable Terms Agreement will have been, duly authorized
by the respective Guarantors; the Guarantees, when the Underwritten
Securities are issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and binding
obligations of the respective Guarantors, enforceable against the related
Guarantor in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Guarantee payable in a foreign currency (or a foreign
currency judgment in respect of such claim) be converted into U.S. dollars
at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(12) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and each Guarantor and
constitutes a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any Debt
Securities payable in a foreign currency (or a foreign currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States.
(13) Description of the Underwritten Securities and Guarantees. The
Underwritten Securities and the Guarantees, when issued and delivered in
accordance with their terms, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
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(14) Description of the Indenture. The Indenture, as of the
Representation Date, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be in
substantially the form filed or incorporated by reference, as the case may
be, as an exhibit to the Registration Statement.
(15) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws (or other
organizational documents) or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such violations or defaults that could not reasonably be
expected to result in a Material Adverse Effect. The execution, delivery
and performance of this Underwriting Agreement, the applicable Terms
Agreement and the Indenture and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company and each
Guarantor in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and sale
of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of
Proceeds" in the Prospectus relating to such Underwritten Securities) and
compliance by the Company and each Guarantor with their respective
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its subsidiaries pursuant to, any Agreements and Instruments, nor will
such action result in any violation of the provisions of the charter or
by-laws (or other organizational documents) of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their respective assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(16) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or contractors,
which, in either case, could reasonably be expected to result in a Material
Adverse Effect.
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(17) Absence of Proceedings. Except as otherwise disclosed in the
Registration Statement or the Prospectus, there is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to the
knowledge of the Company threatened, against or affecting the Company or
any of its subsidiaries which (A) is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein),
(B) could reasonably be expected to result in a Material Adverse Effect, or
(C) could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated under the Prospectus, this
Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company and the Guarantors of their respective
obligations hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(18) Accuracy of Exhibits. There are no franchises, contracts or other
documents which are required to be described in the Registration Statement,
the Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(19) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company or the Guarantors of this
Underwriting Agreement, the applicable Terms Agreement, the Indenture, the
Underwritten Securities or the Guarantees or for the performance by the
Company or the Guarantors of their obligations under this Underwriting
Agreement, such Terms Agreement, the Indenture, the Underwritten Securities
or the Guarantees, except such as have been already made, obtained or
rendered, as applicable or as may be required under state securities or
blue sky laws.
(20) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, except where the failure to own, possess or acquire,
singly or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or
9
finding) or invalidity or inadequacy, singly or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(21) Possession of Licenses and Permits. Except as otherwise disclosed
in the Registration Statement or the Prospectus, (i) the Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate regulatory agencies or bodies, domestic or foreign, necessary
to conduct the business now operated by them, except where the
non-possession of any such Governmental Licenses could not reasonably be
expected to result in a Material Adverse Effect, (ii) the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply could not,
singly or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, (iii) all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect could not reasonably be expected to result in a Material Adverse
Effect and (iv) neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
could reasonably be expected to result in a Material Adverse Effect.
(22) Title to Property. The Company and its subsidiaries have good and
marketable title to all material real property owned by the Company and its
subsidiaries and good title to all other material properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except (A) as
otherwise stated in the Registration Statement and the Prospectus or (B)
those which do not, singly or in the aggregate, materially affect the value
of such property and do not interfere with the use made or proposed to be
made of such property by the Company or any of its subsidiaries. All of the
leases and subleases material to the business of the Company and its
subsidiaries considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Prospectus, are
in full force and effect, and neither the Company nor any of its
subsidiaries has received any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any of
its subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(23) Investment Company Act. Neither the Company nor any Guarantor is,
or upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as described
in the Prospectus will be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(24) Public Utility Holding Company Act of 1935. The Company is a
"holding company" (within the meaning of the Public Utility Holding Company
Act of 1935, as amended (the "PUHC Act")) which is exempt under the PUHC
Act and the rules and
10
regulations promulgated thereunder from being required to seek approval to
enter into or perform its obligations under this Underwriting Agreement,
the applicable Terms Agreement, the Indenture and the Underwritten
Securities.
(25) Environmental Laws. Except as otherwise disclosed in the
Registration Statement and the Prospectus and except as could not, singly
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation
of any federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries possess all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or, to the Company's knowledge, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the Company's knowledge, there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(26) Maintenance of Controls and Procedures. The Company has
established and maintains "disclosure controls and procedures" (as such
term is defined in Rules 13a-14 and 15d-14 under the 1934 Act (as of August
14, 2003, such term shall be defined in Rule 13a-15 and 15d-15 under the
1934 Act)) that (A) are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made
known to the Company's Chief Executive Officer and its Chief Financial
Officer by others within those entities, particularly during the periods in
which the filings made by the Company with the Commission which it may make
under Section 13(a), 13(c), 14 or 15(d) of the 1934 Act are being prepared,
(B) have been evaluated for effectiveness as of a date within 90 days prior
to the filing of the Company's most recent annual report filed with the
Commission and (C) are effective to perform the functions for which they
were established. The Company's accountants and the audit committee of the
board of directors of the Company have been advised of (x) any significant
deficiencies in the design or operation of internal controls which could
adversely affect the Company's ability to record, process, summarize, and
report financial data and (y) any fraud, whether or not material, that
involves management or other employees who have a role in the Company's
internal controls. Any material weaknesses in internal controls have been
identified for the Company's accountants. Since the date of the most recent
evaluation of
11
such disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company, any Guarantor or any of their respective subsidiaries and delivered to
any Underwriter or to counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company or such Guarantor to each Underwriter as to the matters
covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the aggregate principal amount of the Option Underwritten Securities set
forth therein at a price equal to the percentage of the aggregate principal
amount of the Initial Underwritten Securities representing the purchase price,
plus accrued interest or amortized original issue discount, as the case may be,
from the original issue date of the Initial Underwritten Securities. Such
option, if granted, will expire 30 days after the date of such Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Underwritten Securities upon notice by the
Representatives to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor in any event prior to the
Closing Time, unless otherwise agreed upon by the Representatives and the
Company. If the option is exercised as to all or any portion of the Option
Underwritten Securities, each of the Underwriters, severally and not jointly,
will purchase that proportion of the total aggregate principal amount of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial Underwritten
Securities, subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases of Option Underwritten
Securities in an amount other than whole dollars.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be agreed upon by
12
the Representatives and the Company, at 9:00 A.M. (Eastern time) on the third
business day after the date of the applicable Terms Agreement (unless postponed
in accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-mentioned
offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp, or at such other place as shall be
agreed upon by the Representatives and the Company, on the relevant Date of
Delivery as specified in the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. The
Representatives may for themselves and not as representatives of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Underwritten Securities to be purchased by any Underwriter whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, shall be in such
denominations and registered in such names as the Representatives may request in
writing at least two full business days prior to the Closing Time or the
relevant Date of Delivery, as the case may be. The Underwritten Securities or
certificates for the Underwritten Securities, as applicable, will be made
available for examination and packaging by the Representatives in The City of
New York, or at such other place as shall be agreed upon by the Representatives
and the Company, not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Guarantors. Each of the
Company and the Guarantors covenants with the Representatives and with each
Underwriter named in the applicable Terms Agreement, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of
13
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424 and will
take such steps as it deems necessary to ascertain promptly whether any
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company and the Guarantors will use their best efforts to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as practicable.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations) or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed or conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed or conformed copies of all consents and
certificates of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the Underwriters.
Copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required under the 1933 Act or the 1934 Act to be delivered to
investors in connection with sales of the Securities, such number of copies of
the Prospectus as such Underwriter may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. Each of the Company and the
Guarantors will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Underwriting
Agreement and the applicable Terms Agreement and in the Registration Statement
and the Prospectus. If at any time when the Prospectus is required under the
1933 Act or the 1934 Act to be delivered to investors in connection with sales
of the Securities any event shall occur or condition shall exist as a result of
which it is necessary,
14
in the reasonable opinion of counsel for the Underwriters or for the Company and
the Guarantors, to amend the Registration Statement in order that the
Registration Statement 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 or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company and the Guarantors will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company and the Guarantors will furnish to the
Underwriters, without charge, such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. Each of the Company and the Guarantors will
use its best efforts, in cooperation with the Underwriters, to qualify the
Underwritten Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and to maintain such qualifications in effect as
long as may be necessary to complete the distribution of the Underwritten
Securities; provided, however, that neither the Company nor any Guarantor shall
be obligated to file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so qualified, each
of the Company and the Guarantors will file such statements and reports as may
be required by the laws of such jurisdiction.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Listing. The Company will use commercially reasonable efforts to
effect the listing of the Underwritten Securities, prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of the
Representatives, directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, any
15
debt securities with a maturity in excess of nine months other than borrowings
under the Company's revolving credit facility.
(k) Reporting Requirements. The Company and the Guarantors, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
(l) Additional Guarantors. In the event that a subsidiary of the Company
becomes a Guarantor under the Indenture after the date of this Underwriting
Agreement, the Company will cause such subsidiary to execute each subsequent
Terms Agreement acknowledging the representations, warranties and agreements of
such subsidiary as Guarantor under this Underwriting Agreement.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Guarantors will pay all expenses
incident to the performance of their obligations under this Underwriting
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indenture
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities, any
certificates for the Underwritten Securities, as applicable, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustee and its
counsel, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky and Legal Investment Surveys, and any
amendment thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus, any Term Sheet, and the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Underwritten
Securities, (viii) the fees and expenses incurred with respect to the listing of
the Underwritten Securities, if applicable, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of the sale of the Underwritten
Securities, and (x) the fees and expenses of any Underwriter acting in the
capacity of a "qualified independent underwriter" (as defined in Rule 2720 of
the Conduct Rules of the NASD), if applicable. It is understood, however, that
except as provided in this Section 4, and in Sections 5(n), 6 or 7 hereof, the
Underwriters will be responsible for all of their own costs and expenses,
including the fees of their counsel, any transfer taxes on the Underwritten
Securities upon resale by them and all other expenses incurred
16
by them in connection with any offering of the Underwritten Securities made by
the Underwriters.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representatives in accordance with the provisions of Section 5
or Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all
of their out-of-pocket expenses reasonably incurred by the Underwriters in
connection with preparations for the purchase, sale and delivery of the
Underwritten Securities pursuant to the applicable Terms Agreement, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company and the Guarantors contained in Section 1 hereof
and in certificates of any officer of the Company, any of the Guarantors or any
of their respective subsidiaries delivered pursuant to the provisions hereof, to
the performance by the Company and the Guarantors of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities, the specific method of distribution
and similar matters shall have been filed with the Commission in accordance with
Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any required
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A), or, if the
Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term
Sheet including the Rule 434 Information shall have been filed with the
Commission in accordance with Rule 424(b)(7).
(b) Opinion of General Counsel of the Company. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company, in form and
substance satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, substantially to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(c) Opinion of Counsel for Company and the Guarantors. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company and the
Guarantors, in form and substance satisfactory to the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, substantially to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the Underwriters may reasonably request
(including opinions of local counsel with respect to Vectren Energy Delivery of
Ohio, Inc. and Indiana Gas Company, Inc., ▇▇▇▇▇ & ▇▇▇▇▇
17
LLP, federal regulatory counsel with respect to the exemption of the Company and
VUHI from the 1935 Act and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Nurick LLC with respect to Ohio
regulatory matters).
(d) Opinion of Counsel for Underwriters. At the Closing Time, the
Underwriters shall have received an opinion, dated as of the Closing Time, of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
in form and substance satisfactory to the Underwriters.
(e) Officers' Certificate. At the Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Underwriters shall have received a certificate of the Chief Executive Officer,
President or Executive Vice President of the Company and of each Guarantor and
of the Chief Financial Officer or Chief Accounting Officer of the Company and of
each Guarantor, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties in
Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company or such
Guarantor, as the case may be, has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Underwriters shall have received from Deloitte &
Touche llp a letter dated such date, in form and substance satisfactory to the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, the Underwriters shall
have received from Deloitte & Touche llp a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Ratings. At the Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in
the applicable Terms Agreement, and the Company shall have delivered to the
Underwriters a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Underwriters, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned
18
to the Underwritten Securities or any of the Company's other securities by any
nationally recognized statistical rating organization, and no such rating
organization shall have publicly announced that it has under surveillance or
review its rating of the Underwritten Securities or any of the Company's other
securities.
(i) Approval of Listing. At the Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(j) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. On the date of the applicable Terms Agreement, the
Underwriters shall have received, in form and substance satisfactory to it, each
lock-up agreement, if any, specified in such Terms Agreement as being required
to be delivered by the persons listed therein.
(l) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company or any of its subsidiaries hereunder shall be true and correct as of
each Date of Delivery, and, at the relevant Date of Delivery, the Underwriters
shall have received:
(1) A certificate, dated such Date of Delivery, of the Chief
Executive Officer, President or Executive Vice President of the Company and
the Chief Financial Officer or Chief Accounting Officer of the Company,
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(e) hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of
the Company and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company and the
Guarantors, each in form and substance satisfactory to the Underwriters,
dated such Date of Delivery, relating to the Option Underwritten Securities
and otherwise to the same effect as the opinions required by Sections 5(b)
and 5(c) hereof.
(3) The favorable opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(4) A letter from Deloitte & Touche llp, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(f) hereof,
19
except that the "specified date" on the letter furnished pursuant to this
paragraph shall be a date not more than three business days prior to such
Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's other securities by
any nationally recognized statistical rating organization, and no such
rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of
the Company's other securities.
(m) Additional Documents. At the Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company or the Guarantors in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(n) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery may be terminated by the Representatives by notice to the Company at
any time at or prior to the Closing Time or such Date of Delivery, as
applicable, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the
Guarantors, jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable, or
the omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
20
(2) against any and all losses, liabilities, claims, damages and
expenses whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(3) against any and all expenses whatsoever, as incurred (including
the fees and disbursements of outside counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company or a
Guarantor by any Underwriter through the Representatives expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto); and, provided, further, that this indemnity agreement,
insofar as it relates to any preliminary prospectus, shall not inure to the
benefit of any Underwriter (or to the benefit of any person who controls such
Underwriter) on account of any loss, liability, claim, damage or expense arising
out of the sale of any of the Underwritten Securities by such Underwriter to any
person if it shall be established that a copy of the Prospectus (excluding any
documents incorporated by reference), as supplemented or amended, if the Company
shall have made any supplements or amendments which have been furnished to the
Representative, shall not have been sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Underwritten Securities to such person in any case where such delivery is
required by the 1933 Act and the Company satisfied its obligations pursuant to
Section 3(b) hereof, if the misstatement or omission leading to such loss,
claim, damage or liability was corrected in the Prospectus (excluding any
documents incorporated by reference) as amended or supplemented, such correction
would have cured the defect giving rise to such loss, liability, claim, damage,
or expense and the Prospectus (excluding any documents incorporated by
reference) was delivered to such Underwriter a reasonable amount of time in
advance of such Underwriter's delivery of the written confirmation to such
person.
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, each Guarantor,
their respective directors, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Company or any Guarantor
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all losses, liabilities, claims, damages and expenses described
in the indemnity contained in Section 6(a), as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration
21
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
22
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Guarantors, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Guarantors, on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Underwritten Securities (before deducting
expenses) received by the Company and the Guarantors and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of such Underwritten
Securities as set forth on such cover.
The relative fault of the Company and the Guarantors, on the one hand, and
the Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company, the Guarantors or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Guarantors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 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 Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
23
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company or any Guarantor, each officer of the Company or
any Guarantor who signed the Registration Statement, and each person, if any,
who controls the Company or any Guarantor within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the aggregate principal amount of Initial
Underwritten Securities set forth opposite their respective names in the
applicable Terms Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company, any Guarantor or any of their respective subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any Guarantor, and
shall survive delivery of and payment for the Underwritten Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by the Representatives upon the giving of prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. The Representatives may terminate the applicable
Terms Agreement, by notice to the Company, at any time at or prior to the
Closing Time or any relevant Date of Delivery, if (i) there has been, since the
time of execution of such Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, or any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
Vectren Corporation, the Company or any Guarantor has been suspended or
materially limited by the Commission, the New York Stock Exchange or the
American Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) there has occurred a material disruption in
securities settlement or
24
clearance services in the United States, or (v) a banking moratorium has been
declared by either Federal or New York authorities.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on such
date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations under such Terms
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal amount, as
the case may be, of Underwritten Securities to be purchased on such date
pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the purchase
of Option Underwritten Securities on a Date of Delivery after the Closing Time,
the obligations of the Underwriters to purchase, and the Company to sell, such
Option Underwritten Securities on such Date of Delivery) shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either the Representatives or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard
25
form of telecommunication. Notices to the Underwriters shall be directed to ABN
AMRO Incorporated at ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention of o and
Banc One Capital Markets, Inc. at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, attention of Structuring and Execution, and notices to the Company shall
be directed to it at ▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Guarantors, the Representatives and, upon execution of such Terms Agreement,
any other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms 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 and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
SECTION 16. Tax Disclosure. The Company is authorized, subject to
applicable law, to disclose any and all aspects of this potential transaction
that are necessary to support any U.S. federal income tax benefits expected to
be claimed with respect to such transaction, and all materials of any kind
(including tax opinions and other tax analyses) related to those benefits,
without the Underwriters imposing any limitation of any kind.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement among the Representatives, the Company and the Initial Guarantors in
accordance with its terms.
Very truly yours,
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
INDIANA GAS COMPANY, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
SOUTHERN INDIANA GAS AND ELECTRIC
COMPANY, as Guarantor
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, Controller
VECTREN ENERGY DELIVERY OF OHIO,
INC.,as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive
Officer
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
By: ABN AMRO INCORPORATED
By: /s/ ▇▇▇▇▇ ▇'▇▇▇▇▇▇
---------------------------------
Authorized Signatory
By: BANC ONE CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Authorized Signatory
As Representatives of the other named Underwriters.
28
EXHIBIT A
VECTREN UTILITY HOLDINGS, INC.
(an Indiana corporation)
AND THE GUARANTORS NAMED HEREIN
Senior Debt Securities
TERMS AGREEMENT
---------------
.,2003
To: Vectren Utility Holdings, Inc.
▇▇ ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Vectren Utility Holdings, Inc., an Indiana corporation
(the "Company"), proposes to issue and sell $. aggregate principal amount of its
[senior] [subordinated] debt securities (the "Initial Underwritten Securities").
Subject to the terms of the Indenture, the Initial Underwritten Securities will
be fully and unconditionally guaranteed as to payment of principal, premium (if
any) and interest (the "Guarantees") by the Initial Guarantors [and ________].
Subject to the terms and conditions set forth or incorporated by reference
herein, we, the underwriters named below (the "Underwriters"), offer to purchase
from the Company, and the Company agrees to sell to the Underwriters, severally
and not jointly, the principal amount of Initial Underwritten Securities
opposite the names of the Underwriters set forth below at the purchase price set
forth below.
A-1
Principal Amount
Underwriter of Initial Underwritten Securities
------------------------------------- ----------------------------------------
ABN AMRO Incorporated................ $
Banc One Capital Markets, Inc........
-------------
Total $.
=============
The Initial Underwritten Securities
shall have the following terms:
Title: [.%] [Floating Rate] [Senior]
[Subordinated] Notes due .
Rank: Unsecured [senior] [subordinated]
indebtedness
Guarantees: Guaranteed by Indiana Gas Company, Inc.,
Southern Indiana Gas and Electric
Company [and][,] Vectren Energy
Delivery of Ohio, Inc. [and ______]
Ratings: ["Baa1"] by ▇▇▇▇▇'▇ Investors Service,
Inc.
["A-"] by Standard & Poor's Ratings
Services
Aggregate principal amount: $.
Denominations: $1,000 and integral multiples thereof
Currency of payment:
Interest rate or formula: [.% per annum] [Formula]
Interest payment dates: . of each year, commencing .
Regular record dates: The . calendar day of the month
immediately preceding the month in which
each Interest Payment Date falls
Stated maturity date: .
Redemption provisions: [The Notes are redeemable at any time at
the option of the Company in whole or in
part,
A-2
upon not less than 30 calendar days and
not more than 60 calendar days prior
written notice at a price equal to the
greater of (1) 100% of the principal
amount to be redeemed and (2) the sum of
the present values of the remaining
scheduled payments of principal and
interest on the Notes, discounted to the
redemption date on a . basis at the
Treasury Rate plus . basis points, plus
in each case unpaid interest accrued to
the redemption date.]
Sinking fund requirements: [The Notes will not have the benefit of,
or be subject to, any sinking fund.]
Defeasance provisions: The Notes are subject to defeasance and
covenant defeasance as provided in
Article 8 of the Indenture.
Fixed or Variable Price Offering:
If Fixed Price Offering: .% of the principal amount, plus accrued interest
, if any, from ..
Purchase price: .% of the principal amount, plus accrued interest, if any,
from ..
Over-allotment option:
Form: [Book-entry] [Certificated]
Listing:
Lock-Up Agreements:
Other terms and conditions: [________ is hereby added as a Guarantor
under, and subject to, all of the
provisions of the Underwriting Agreement
referred to below]
Closing date and location: . at Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ llp, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
All of the provisions contained in the document attached as Annex I hereto
entitled "Vectren Utility Holdings, Inc.-- Debt Securities--Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-3
Please accept this offer on . by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
By: ABN AMRO INCORPORATED
By:
-------------------------------------
Authorized Signatory
By: BANC ONE CAPITAL MARKETS, INC.
By:
-------------------------------------
Authorized Signatory
As Representatives of the other named
Underwriters.
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Accepted:
VECTREN UTILITY HOLDINGS, INC.,
as Issuer
By:
--------------------------------------
Name:
Title:
INDIANA GAS COMPANY, INC.,
as Guarantor
By:
--------------------------------------
Name:
Title:
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY
as Guarantor
By:
--------------------------------------
Name:
Title:
VECTREN ENERGY DELIVERY OF OHIO, INC.,
as Guarantor
By:
--------------------------------------
Name:
Title:
[Other Guarantors]
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EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The information in the Company's [list all relevant 1934 Act reports
and text in the prospectus supplement] under the caption "Legal Proceedings", to
the extent that it constitutes matters of law, summaries of legal matters or the
Company's charter, bylaws or legal proceedings, or legal conclusions, has been
reviewed by me and is correct in all material respects.
2. To the best of my knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement, except for defaults which individually or in the
aggregate would not have a Material Adverse Effect.
3. To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
4. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
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EXHIBIT C
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Indiana.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, the Underwriting Agreement, the applicable Terms Agreement,
the Indenture and the Underwritten Securities.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
4. The authorized, issued and outstanding shares of capital stock of the
Company are as set forth in the column entitled "Actual" under the caption
"Capitalization" in the Prospectus (except for subsequent issuances thereof, if
any, contemplated under the Underwriting Agreement). All of the issued and
outstanding shares of capital stock of the Company have been duly authorized and
validly issued by the Company and are fully paid and non-assessable, and none of
such shares were issued in violation of preemptive or other similar rights of
any securityholder of the Company.
5. Each Guarantor has been duly incorporated and is validly existing as a
corporation, and where applicable, in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under, or as
contemplated under, this Underwriting Agreement, the applicable Terms Agreement
and its Guarantee and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect. All of the
issued and outstanding capital stock of each Guarantor has been duly authorized
and is validly issued, fully paid and non-assessable and, to the best of our
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity [identify any exceptions]. None of the outstanding shares of capital
stock of any Guarantor was issued in violation of preemptive or other similar
rights of any securityholder of such Guarantor.
6. The Underwritten Securities have been duly authorized by the Company
for issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the
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Indenture and delivered against payment of the consideration therefor specified
in such Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to
any Underwritten Securities payable in a foreign currency (or a foreign currency
judgment in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. The Underwritten Securities are in the form
contemplated by, and each registered holder thereof is entitled to the benefits
of, the Indenture.
7. The Guarantees have been duly authorized by the Guarantors and, when
the Underwritten Securities are issued and authenticated in accordance with the
terms of the Indenture and delivered against payment of the consideration
therefor specified in the applicable Terms Agreement, will constitute valid and
binding obligations of the respective Guarantors, enforceable against the
related Guarantor in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or at law), and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Guarantee payable in
a foreign currency (or a foreign currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
8. The Indenture has been duly authorized, executed and delivered by the
Company and each Guarantor and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and binding agreement of
the Company and each Guarantor, enforceable against the Company and each
Guarantor in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof may
be limited by requirements that a claim with respect to any Debt Securities
payable in a foreign currency (or a foreign currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States.
9. The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by each of the Company and the
Guarantors.
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10. The Underwritten Securities and the Guarantees, when issued and
delivered in accordance with their terms, will conform in all material respects
to the statements relating thereto contained in the Prospectus and are in
substantially the form filed or incorporated by reference, as the case may be,
as an exhibit to the Registration Statement.
11. The Indenture conforms in all material respects to the statements
relating thereto contained in the Prospectus and is in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
12. The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of our knowledge, no stop
order suspending the effectiveness of the Registration Statement (including any
Rule 462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
13. The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements, notes and supporting schedules
included therein or omitted therefrom and the Trustee's Statement of Eligibility
on Form T-1 (the "Form T-1"), as to which we express no opinion), complied as to
form in all material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the ▇▇▇▇ ▇▇▇.
14. The documents incorporated by reference in the Prospectus (other than
the financial statements, notes and supporting schedules therein or omitted
therefrom, as to which we express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations.
15. To the best of our knowledge, except as otherwise disclosed in the
Registration Statement and Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its subsidiaries thereof is a party or to which the assets, properties or
operations of the Company or any of its subsidiaries thereof is subject, before
or by any court or governmental agency or body, domestic or foreign, which could
reasonably be expected to result in a Material Adverse Effect or which could
reasonably be expected to materially and adversely affect the assets, properties
or operations thereof or the consummation of the transactions contemplated under
the Underwriting Agreement, the applicable Terms Agreement or the Indenture or
the performance by the Company of its obligations thereunder.
16. The information in the Prospectus under "Description of Debt
Securities" and "Description of Notes," and in the Registration Statement under
Item 15, to the extent that it constitutes matters of law, summaries of legal
matters or the Company's charter, bylaws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material respects.
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17. All descriptions in the Registration Statement and the Prospectus of
contracts and other documents to which the Company or any of its subsidiaries
are a party are accurate in all material respects.
18. To the best of our knowledge, neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws. Based solely on
inquiries we have made of the Company's Executive Vice President/Chief Financial
Officer, Executive Vice President/Secretary, General Counsel/Assistant
Secretary, Vice President/Treasurer and Vice President/Controller, and on an
officer's certificate no default by the Company or any of its subsidiaries
exists in the due performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described or
referred to in the Registration Statement or the Prospectus or filed or
incorporated by reference as an exhibit to the Registration Statement, except
for defaults which individually or in the aggregate would not have a Material
Adverse Effect.
19. The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the Indenture and any other agreement or
instrument entered into or issued or to be entered into or issued by the Company
and the Guarantors in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company and the Guarantors with their respective
obligations thereunder do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the assets, properties or operations of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations.
20. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company or the Guarantors of the Underwriting
Agreement, the applicable Terms Agreement, the Indenture, the Underwritten
Securities or the Guarantees or for the performance by the Company or the
Guarantors of their obligations under the Underwriting Agreement, such Terms
Agreement, the Indenture, the Underwritten Securities or the Guarantees, other
than under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have already been made, obtained or rendered, as applicable.
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21. The Indenture has been duly qualified under the 1939 Act.
22. Neither the Company nor any Guarantor is, or upon the issuance and
sale of the Underwritten Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will be, an
"investment company" within the meaning of the 1940 Act.
23. The Company is a "holding company" (within the meaning of the Public
Utility Holding Company Act of 1935, as amended (the "PUHC Act")) which is
exempt from being required to seek approval to perform its obligations under the
Underwriting Agreement, the applicable Terms Agreement, the Indenture or the
Underwritten Securities pursuant to Rule 2 of the rules and regulations
promulgated pursuant to the PUHC Act.
Further, although we are not passing upon and do not assume any
responsibility for, the accuracy and completeness of the statements (except as
covered by (4), (10), (11), (16) and (17)) contained in the Registration
Statement, Prospectus, or any amendment or supplement thereto, including the
Rule 430A Information and Rule 434 Information (if applicable), we advise you,
on the basis of the discussions and inquiries concerning various legal and
related subjects and reviews of and reports on certain corporate records,
documents and proceedings and conferences with representatives of the Company at
which certain portions of the Registration Statement and the Prospectus were
discussed (relying as to certain factual matters upon representations of the
Company), nothing has come to our attention that would lead us to believe that
the Registration Statement (including any Rule 462(b) Registration Statement) or
any post-effective amendment thereto (except for financial statements (including
statistical information included in such financial statements), notes and
supporting schedules thereto and other financial data included therein or
omitted therefrom and for the Form T-1, as to which we make no statement), at
the time the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (including the filing of the
Company's Annual Report on Form 10-K with the Commission) became effective or at
the date of the applicable Terms Agreement, 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
Prospectus or any amendment or supplement thereto (except for financial
statements (including statistical information included in such financial
statements), notes and supporting schedules thereto and other financial data
included therein or omitted therefrom, as to which we make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, 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.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Guarantors and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
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