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EX 1.1
ILLINOVA CORPORATION
(an Illinois corporation)
Senior Debt Securities
UNDERWRITING AGREEMENT
January [__], 1997
Ladies and Gentlemen:
Illinova Corporation, an Illinois corporation (the "Company"),
proposes to issue and sell up to $300,000,000 aggregate initial public offering
price of its senior debt securities (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
general unsecured obligations of the Company under an indenture, dated as of
[_______] [__], 1997 (the "Indenture"), between the Company and First National
Bank of Chicago, as trustee (the "Trustee"). 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 Debt
Securities through __________________, or through an underwriting syndicate
managed by __________________, the Company will enter into an agreement (each,
a "Terms Agreement") providing for the sale of such Debt Securities to, and the
purchase and offering thereof by, __________________ and such
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other underwriters, if any, selected by __________________ (the "Underwriters",
which term shall include __________________, whether acting as sole Underwriter
or as a member of an underwriting syndicate, as well as any Underwriter
substituted pursuant to Section 10 hereof). The Terms Agreement relating to
the offering of Debt Securities shall specify the number or aggregate principal
amount, as the case may be, of Debt Securities to be initially issued (the
"Initial Underwritten Debt 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 __________________ acting
as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Debt 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 Debt
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Debt Securities and
any other material variable terms of the Initial Underwritten Debt 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 Debt Securities to cover over-allotments, if any, and the number or
aggregate principal amount, as the case may be, of Debt Securities subject to
such option (the "Option Underwritten Debt Securities"). As used herein, the
term "Underwritten Debt Securities" shall include the Initial Underwritten Debt
Securities and all or any portion of any Option Underwritten Debt 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 __________________, acting for itself
and, if applicable, as representative of any other Underwriters. Each offering
of Underwritten Debt Securities through __________________ as sole Underwriter
or through an underwriting syndicate managed by __________________ will be
governed by this Underwriting Agreement, as supplemented by the applicable
Terms Agreement.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-[_______________]) for the registration of the Debt Securities under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in
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accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) 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"). 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
prospectus supplement relating to the offering of the Underwritten Debt
Securities, in the form first furnished to the Underwriters by the Company for
use in connection with the offering of the Underwritten Debt Securities, are
collectively referred to herein as the "Prospectus"; provided, however, that
all references to the "Registration Statement" and the "Prospectus" shall be
deemed to include all documents incorporated therein by reference pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of the applicable Terms Agreement; provided, further, that if the
Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462 Registration Statement"),
then, after the filing, all references to "Registration Statement" shall be
deemed to include the Rule 462 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 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 form first furnished to the
Underwriters by the Company in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
registration statement became effective and 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, that was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of
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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 the 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"
or "stated" (or other references of like import) in the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and include all
such financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be; and all references in this
Underwriting Agreement to amendments or supplements to the Registration
Statement, Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The
Company represents and warrants to __________________, 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. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and 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 any Rule
462(b) Registration Statement has been issued under the 1933 Act and
no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, 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.
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At the respective times the Registration Statement, 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 with the Commission (the "Annual Report on Form
10-K") became effective and at each Representation Date, the
Registration Statement, any Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respect 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,
the Prospectus and any amendments and supplements thereto 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. 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 statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through __________________
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, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
the offering of Underwritten Debt Securities will, at the time of such
delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
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(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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(3) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included
in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The financial statements of
the Company included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly the financial position of the Company and its
consolidated subsidiaries, or such other entity, as the case may be,
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Company and its consolidated
subsidiaries, or such other entity, as the case may be, 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 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. In
addition, any pro forma financial statements of the Company and its
subsidiaries and the related notes thereto
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included in the Registration Statement and the Prospectus present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to
give effect to the transactions and circumstances referred to therein.
(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 (a "Material Adverse Effect"), whether or not arising in
the ordinary course of business, (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) except for regular quarterly dividends on the
Company's common stock, in amounts per share that are consistent with
past practice, 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 organized and is validly existing as a corporation in good
standing under the laws of the State of Illinois and 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 and the applicable Terms Agreement. 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 would not result in a
Material Adverse Effect.
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(7) Good Standing of Subsidiaries. Each
"significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the ▇▇▇▇ ▇▇▇)
(each, a "Subsidiary" and, collectively, the "Subsidiaries"), if any,
has been duly organized and is validly existing as a corporation 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 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. Except as otherwise stated in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized
and is validly issued, fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of the
Subsidiaries was issued in violation of preemptive or other similar
rights arising by operation of law, under the charter or by-laws of
any subsidiary or under any agreement to which the Company or any
subsidiary is a party, or otherwise.
(8) 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 the Company.
(9) Authorization of Debt Securities. The
Underwritten Debt Securities have been, or as of the date of
such 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 Debt 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 legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement
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thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Debt Securities denominated other than in
U.S. dollars (or a foreign or composite 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 (B)
governmental authority to limit, delay or prohibit the making of
payments outside the United States. Such Underwritten Debt Securities
will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(10) Authorization of the Indenture. The Indenture has been,
or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by the Company and, upon
such authorization, execution and delivery, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally or by general equitable principles.
(11) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
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 any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary
is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not 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 in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and
the Prospectus and the
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consummation of the transactions contemplated herein and in the
Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Debt Securities and the use of the proceeds
from the sale of the Underwritten Debt Securities as described under
the caption "Use of Proceeds") and compliance by the Company with its
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 subsidiary pursuant to any Agreements and Instruments,
except for such conflicts, breaches, defaults, events or liens,
charges or encumbrances that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any subsidiary 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
subsidiary or any of their 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 subsidiary.
(12) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or 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 subsidiary thereof which is required to be disclosed in
the Registration Statement and the Prospectus (other than as stated
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations
thereof or the consummation of this Underwriting Agreement, the
applicable Terms Agreement, the Indenture or the transactions
contemplated herein or therein. The aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary
thereof
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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.
(13) Accuracy of Exhibits. There are no contracts or
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/or filed as required.
(14) 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 is necessary or required for the performance by the Company of
its obligations under this Underwriting Agreement or the applicable
Terms Agreement or in connection with the transactions contemplated
under this Underwriting Agreement, such Terms Agreement or the
Indenture, except such as have been already obtained or as may be
required under state securities laws.
(15) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them. 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 would not, singly or in the aggregate, result in a
Material Adverse Effect. 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 would not result in a Material Adverse
Effect. 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, would
result in a Material Adverse Effect.
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(16) Investment Company Act. The Company is not, and upon
the issuance and sale of the Underwritten Debt Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act").
(17) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except such violations
as would not, singly or in the aggregate, 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 and 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 have 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 threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notice of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) 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 any Hazardous Materials or the
violation of any Environmental Laws.
(18) Compliance With Cuba Act. The Company has complied
with, and will be in compliance with, the
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provisions of that certain Florida act relating to disclosure of doing
business with Cuba, codified as Section 517.075 of the Florida
statutes, and the rules and regulations thereunder or is exempt
therefrom.
(b) Officers' Certificates. Any certificate signed by
any officer of the Company or any subsidiary and delivered to any Underwriter
or to counsel for the Underwriters in connection with the offering of the
Underwritten Debt Securities shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby on the date
of such certificate and, unless subsequently amended or supplemented, at each
Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Debt Securities. The several
commitments of the Underwriters to purchase the Underwritten Debt Securities
pursuant to the applicable Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
(b) Option Underwritten Debt Securities. In addition,
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 number or aggregate principal
amount, as the case may be, of the Option Underwritten Debt Securities set
forth therein at a price per Option Underwritten Debt Security equal to the
price per Initial Underwritten Debt Security. 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 Debt Securities upon notice by
__________________ to the Company setting forth the number or aggregate
principal amount, as the case may be, of Option Underwritten Debt 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 Debt
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by __________________, but shall not be later
than seven full business days after the exercise of said option, nor in any
event
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prior to the Closing Time, unless otherwise agreed upon by __________________
and the Company. If the option is exercised as to all or any portion of the
Option Underwritten Debt Securities, each of the Underwriters, severally and
not jointly, will purchase that proportion of the total number or aggregate
principal amount, as the case may be, of Option Underwritten Debt Securities
then being purchased which the number or aggregate principal amount, as the
case may be, of Initial Underwritten Debt Securities each such Underwriter has
severally agreed to purchase as set forth in such Terms Agreements bears to the
total number or aggregate principal amount, as the case may be, of Initial
Underwritten Debt Securities, subject to such adjustments as __________________
in its discretion shall make to eliminate any sales or purchases of a
fractional number or aggregate principal amount, as the case may be, of Option
Underwritten Debt Securities.
(c) Payment. Payment of the purchase price for, and
delivery of, the Initial Underwritten Securities shall be made at the offices
of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as shall be agreed upon by
__________________ and the Company, at 10:00 A.M. (Eastern time) on the third
business day after the date hereof (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 __________________ and
the Company (such time and date of payment and delivery being herein called
"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 Debt Securities, payment of the purchase price for, and delivery
of such Option Underwritten Debt Securities shall be made at the above
mentioned offices of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, or at such other
place as shall be agreed upon by __________________ and the Company.
Payment shall be made to the Company by certified or official
bank check or checks drawn in New York Clearing House funds or similar next day
funds payable to the order of the Company, against delivery to
__________________ for the respective accounts of the Underwriters of the
Underwritten Debt Securities to be purchased by them. It is understood that
each Underwriter has authorized __________________, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Debt Securities which it has
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severally agreed to purchase. __________________, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Debt Securities to be
purchased by any Underwriter whose check has 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 Debt
Securities shall be in such denominations and registered in such names as
__________________ may request in writing at least one full business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be. The
Underwritten Debt Securities will be made available for examination and
packaging by __________________ in the City of New York 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. The Company covenants
with __________________ and with each Underwriter participating in the offering
of Underwritten Debt Securities 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) immediately, 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 Debt Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly
effect the filings
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necessary pursuant to Rule 424 and will take such steps as it deems
necessary to ascertain promptly whether the 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 will make every reasonable effort to prevent the issuance
of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give
__________________ 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), any Terms Agreement 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 __________________ 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 __________________ or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to __________________ and counsel for the
Underwriters, without charge, signed 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 copies of all consents and certificates of
experts, and will also deliver to __________________, without charge,
a conformed copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits) for each of the
Underwriters. If applicable, the 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
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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 to be delivered under the 1933 act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably
request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriter 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. The Company
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 Debt 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 by the 1933 Act or the 1934
Act to be delivered in connection with sales of the Debt Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for
the Company, 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 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 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 will furnish to the Underwriters, without charge,
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such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Underwritten Debt Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions
(domestic or foreign) as __________________ may designate and to
maintain such qualifications in effect for a period of not less than
one year from the date of the applicable Terms Agreement; provided,
however, that the Company shall not 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 Debt Securities have
been so qualified, the Company will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from
the date of such Terms Agreement.
(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 security holders 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 Debt Securities in
the manner specified in the Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect
the listing of the Underwritten Debt 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 Debt Securities. Between the date
of the applicable Terms Agreement and the Closing Time or such other
date specified in such Terms Agreement,
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the Company will not, without the prior written consent of
__________________, directly or indirectly, issue, sell, offer to
sell, grant any option for the sale of, or otherwise dispose of, the
Debt Securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, 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.
SECTION 4. Payment of Expenses. (a) Expenses. The Company
will pay all expenses incident to the performance of its 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 and delivery of the Underwritten
Debt Securities, (iii) the preparation, issuance and delivery of the
Underwritten Debt Securities and any certificates for the Underwritten Debt
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 Debt 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 Survey and any Legal
Investment Survey, 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 statistical rating organizations for the rating of the
Underwritten Debt Securities, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Debt Securities, (ix) the filing
fees incident to, and the reasonable fees and disbursements of counsel for the
Underwriters in
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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 Debt Securities and (x) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent
underwriter" (as defined in Section 2(1) of Schedule E of the by-laws
of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms
Agreement is terminated by __________________ 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, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligation of the Underwriters to purchase and pay for the Underwritten Debt
Securities pursuant to the applicable Terms Agreement are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company 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 or proceedings therefor initiated 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 Debt 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 bene 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).
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(b) Opinion of Counsel for Company. At Closing Time,
__________________ shall have received the favorable opinion, dated as
of Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, 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 Underwriters. At Closing Time,
__________________ shall have received the favorable opinion, dated as
of Closing Time, of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters with respect to the matters
set forth in (1), (6), (7) to (14), as applicable, (15), (16) (solely
as to the information in the Prospectus under "Description of the
Underwritten Securities" and "Description of the Underlying
Securities", if any, or any caption purporting to describe any such
Securities), (22), (23) and the penultimate paragraph of Exhibit B
hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to __________________ (which, in the case of the
law of Illinois, shall include ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇). Such counsel
may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of
public officials.
(d) Officers' Certificate. At 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
__________________ shall have received a certificate of the President
or a Vice President of the Company and of the chief financial officer
or chief accounting officer of the
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Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the Closing Time, (iii)
the Company 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 initiated or threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the
execution of the applicable Terms Agreement, __________________ shall
have received from Price Waterhouse LLP a letter dated such date, in
form and substance satisfactory to __________________, 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.
(f) Bring-down Comfort Letter. At Closing Time,
__________________ shall have received from Price Waterhouse LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) 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.
(g) Ratings. At Closing Time and at any relevant Date of
Delivery, the Underwritten Debt 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
__________________ a letter, dated as of such date, from each such
rating organization, or other evidence satisfactory to
__________________, confirming that the Underwritten Debt Securities
have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in the rating
assigned to the Underwritten Debt Securities or
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any of the Company's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of the Underwritten Debt Securities or any of the Company's
other securities.
(h) Approval of Listing. At Closing Time, the Underwritten
Debt Securities shall have been approved for listing, subject only to
official notice of issuance, if and as specified in the applicable
Terms Agreement.
(i) No Objection. If the Registration Statement or an
offering of Underwritten Debt 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.
(j) Lock-up Agreements. On the date of the applicable
Terms Agreement, __________________ 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.
(k) 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 Debt
Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished to
the Company hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, __________________
shall have received:
(1) A certificate, dated such Date of Delivery,
of the President or a 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(d) hereof remains true and
correct as of such Date of Delivery.
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(2) The favorable opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Underwritten
Debt Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of Winthrop, Stimson,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Underwritten Debt
Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Price Waterhouse LLP, in form
and substance satisfactory to __________________ and dated
such Date of Delivery, substantially in the same form and
substance as the letter furnished to __________________
pursuant to Section 5(f) hereof, 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.
(l) Additional Documents. At Closing Time and at each
Date of Delivery, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Underwritten Debt 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 in connection with the issuance and
sale of the Underwritten Debt Securities as herein contemplated shall
be satisfactory in form and substance to __________________ and
counsel for the Underwriters.
(m) 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 Debt Securities on a
Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Debt Securities on
such
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Date of Delivery) may be terminated by __________________ 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 and 7 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company 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 loss, liability, claim, damage
and expense 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;
(2) against any and all loss, liability, claim, damage and
expense 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 of 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 expense whatsoever, as incurred
(including the fees and disbursements of counsel
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chosen by __________________), 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 (i) or
(ii) 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 by any
Underwriter through __________________ expressly for use in the Registration
Statement (or any amendment thereto), including the 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers.
Each Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, each of its officers who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made 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) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through
__________________ 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
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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
__________________, 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)(ii) 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
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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 incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Debt 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, on the one hand, and of 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, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Underwritten Debt 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 Debt Securities (before
deducting expenses) received by the Company 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
Debt Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
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The Company 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
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 Debt Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
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, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act of 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 number or aggregate principal amount, as the
case may be, of Initial Underwritten Debt Securities set forth opposite their
respective names in the applicable Terms Agreement, and not joint.
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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 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, and shall survive delivery of and payment for
the Underwritten Debt 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 __________________ upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) Terms Agreement. __________________ 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 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 __________________, impracticable to
market the Underwritten Debt Securities or to enforce contracts for the sale of
the Underwritten Debt Securities, or (iii) trading in any securities of the
Company has been suspended or limited by the Commission, the New York Stock
Exchange or the Chicago Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange or in the over-the-counter market
has been suspended or 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
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Commission, the NASD or any other governmental authority or (iv) 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 and 7
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 Debt
Securities which it or they are obligated to purchase under the applicable
Terms Agreement (the "Defaulted Securities"), then __________________ 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,
__________________ 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
Debt 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 Debt
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
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Underwritten Debt 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 Debt 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
Debt Securities, as the case may be, either __________________ 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 form of telecommunication. Notices to
the Underwriters shall be directed to ___________________________; and notices
to the Company shall be directed to it at Illinova Corporation, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, __________________ 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 Underwriters and the Company 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
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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 Debt 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 are for convenience only and shall not affect the construction
hereof.
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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 between __________________ and the Company in accordance
with its terms.
Very truly yours,
ILLINOVA CORPORATION
By:______________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above
written
By:_____________________________
Authorized Signatory
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Exhibit A
ILLINOVA CORPORATION
(an Illinois Corporation)
Debt Securities
TERMS AGREEMENT
To: Illinova Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We understand that Illinova Corporation, an Illinois
corporation (the "Company"), proposes to issue and sell $[____________]
aggregate principal amount of its senior debt securities (the "Debt
Securities") (such securities also being hereinafter referred to as the
"Initial Underwritten Debt Securities"). Subject to the terms and conditions
set forth or incorporated by reference herein, we the underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
principal amount of Underwritten Debt Securities opposite our names set forth
below at the purchase price set forth below, and a proportionate share of
Option Underwritten Debt Securities set forth below, to the extent any are
purchased.
Principal Amount of Initial
Underwriter Underwritten Debt Securities
___________________________ $[______________]
[_____________________] $[______________]
Total $[______________]
The Underwritten Debt Securities shall have the following
terms:
Title: Senior Debt Securities
Rank: Senior unsecured indebtedness of the Company
Ratings:
Aggregate principal amount:
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Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: [____] % of
the principal amount, plus accrued interest [amortized original issue
discount], if any, from [_________].
Purchase price per share: [___] % of principal amount, plus accrued interest
[amortized original issue discount], if any, from [___________] (payable in
next day funds).
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as
Annex I hereto entitled "ILLINOVA CORPORATION -- Senior 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.
Please accept this offer no later than [___] o'clock P.M. (New
York City time) on [_______] [__], 199[_] by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
Very truly yours,
__________________
By___________________________
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Authorized Signatory
Acting on behalf of itself and the other named Underwriters.
Accepted:
By______________________
Name:
Title:
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Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Illinois.
(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 and the applicable Terms
Agreement.
(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) Each Subsidiary has been duly incorporated and is validly
existing as a corporation 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 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. Except as otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and is
validly issued, fully paid and non-assessable and, to the best of our knowledge
and information, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock of the
Subsidiaries was issued in violation of preemptive or other similar rights.
(5) The Underwriting Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by the Company.
39
(6) The Underwritten Debt Securities have been duly
authorized by the Company for issuance and sale pursuant to the Underwriting
Agreement and the applicable Terms Agreement. The Underwritten Debt
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 legally 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,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, [and except
further as enforcement thereof may be limited by (A) requirements that a claim
with respect to any Debt Securities denominated other than in U.S. dollars (or
a foreign or composite 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 (B) governmental authority to limit, delay or
prohibit the making of payments outside the United States.] The Underwritten
Debt Securities are in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(7) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(8) The Underwritten Debt Securities being sold pursuant
to the applicable Terms Agreement and the Indenture 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.
(9) The information in the Prospectus under "Description
of Senior Debt Securities" and "______________" has been reviewed by us and is
correct in all material respects.
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(10) 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 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 Debt Securities and the use of the
proceeds from the sale of the Underwritten Debt Securities as described under
the caption "Use of Proceeds") and compliance by the Company with its
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 property or assets of the Company or
any subsidiary 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 subsidiary 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 subsidiary is subject, except for such
conflicts, breaches, defaults, events or liens, charges or encumbrances that
would not result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any
subsidiary 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
subsidiary or any of their assets, properties or operations.
(11) To the best of our knowledge and information, there
is no action, suit, proceeding, inquiry or investigation before or by any
court or governmental agency or body, domestic or foreign, now pending or
threatened, against or affecting the Company or any subsidiary thereof which
is required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the assets, properties or operations thereof
or the consummation of the Underwriting Agreement, the applicable Terms
Agreement or the Indenture or the transactions contemplated therein.
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(12) All descriptions in the Prospectus of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects. To the best of our knowledge and
information, 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 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.
(13) To the best of our knowledge and information, there
are no statutes or regulations that are required to be described in the
Prospectus that are not described as required.
(14) The 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 and information, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission.
(15) The Registration Statement, the Rule 430A Information,
the Rule 434 Information and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein and each
Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as to which
no opinion need be rendered) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(16) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules therein, as to
which no opinion need be rendered), when they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
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(17) No filing with, or authorization, approval, consent,
license, order registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance
by the Company of its obligations under the Underwriting Agreement or the
applicable Terms Agreement or in connection with the transactions contemplated
under the Underwriting Agreement, such Terms Agreement or the Indenture other
than under the 1933 Act the 1933 Act Regulations, the 1939 Act and the 1939 Act
Regulations, which have been obtained, or as may be required under state
securities or blue sky laws.
(18) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to our attention that would lead us to
believe that the Registration Statement (except for financial statements and
schedules and other financial data included therein and for the Form T-1s, as
to which we make no statement), at the time the 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 and schedules
and other financial data included therein 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 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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