EXHIBIT 1
CENTRAL ILLINOIS LIGHT COMPANY
$65,000,000
FIRST MORTGAGE BONDS, MEDIUM-TERM NOTE A SERIES
DISTRIBUTION AGREEMENT
December 1, 1994
New York, New York
National Westminster Bank Plc,
New York Branch
175 Water Street, 20th Floor
New York, New York 10038
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Dear Sirs:
Central Illinois Light Company, an Illinois corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $65,000,000 aggregate principal amount of its First
Mortgage Bonds, Medium-Term Note A Series (the "Notes"). The Company
proposes to issue the Notes in one or more separate series under the
Indenture of Mortgage and Deed of Trust, dated as of April 1, 1933, between
Illinois Power Company and Bankers Trust Company, as Trustee (the "Trustee"),
as amended and supplemented by various supplemental Indentures thereto and
assumed by the Company and as it has been further supplemented by a
supplemental Indenture, dated as of November 1, 1994, providing for the
issuance of the Notes (the "Supplemental Indenture"). As used herein,
"Mortgage" shall mean such Indenture of Mortgage and Deed of Trust as
heretofore supplemented, including the Supplemental Indenture.
The Notes will be issued in minimum denominations of $1,000 and integral
multiples thereof (unless otherwise specified by the Company), will be issued
only in fully registered form and will have the annual interest rates,
maturities and, if appropriate, other terms set forth in a supplement or
supplements to the Prospectus referred to below. The Notes will be issued,
and the terms thereof established, in accordance with the Mortgage, and, in
the case of Notes sold pursuant to Section 2(a), the Administrative
Procedures for the Notes, attached hereto as Exhibit A (the "Procedures").
The Procedures may only be amended by written agreement of the Company and
you after notice to, and with the approval of, the Trustee. For the purposes
of this Agreement, the term "Agent" shall refer to either National
Westminster Bank Plc, New York Branch ("National Westminster Bank") or
PaineWebber Incorporated ("PaineWebber") acting solely in the capacity as
agent for the Company pursuant to Section 2(a) and not as principal
(together, the "Agents," and individually, an "Agent"), and the term
"Purchaser" shall refer to either Natwest Capital Markets Limited ("Natwest
Capital"), an affiliate of National Westminster Bank or PaineWebber acting
solely as principal pursuant to Section 2(b) and not as agent. References
herein to the term "you" shall refer to you (and, in the case of National
Westminster Bank, Natwest Capital) together at any time any of you is acting
in both such capacities or in either such capacity.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number: 33-56311), including a basic
prospectus, which has become effective, for the registration under the
Act of $65,000,000 aggregate principal amount of the Company s First
Mortgage Bonds (the "First Mortgage Bonds"), including the Notes. Such
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act
and complies in all other material respects with said Rule. The Company
has included in such registration statement, or has filed or will file
with the Commission pursuant to the applicable paragraph of Rule 424
under the Act, a supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of
distribution thereof (such supplement being hereinafter called the
"Prospectus Supplement"). In connection with the sale of the Notes, the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424 under the Act further supplements to the
Prospectus Supplement providing for the specification of the interest
rates, if any, maturity dates, issuance prices, redemption terms and
prices, if any, and, if appropriate, other terms of the Notes sold
pursuant hereto or the offering thereof (any such supplement being
hereinafter called a "Pricing Supplement").
(b) At each of the following times: (i) as of the Execution Time,
(ii) on the Effective Date, (iii) when any supplement to the Prospectus
is filed with the Commission, (iv) as of the date of any Terms Agreement
(as defined by Section 2(b)) and (v) at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date") (1) the
Registration Statement, as amended as of any such time, and the
Prospectus, as supplemented as of any such time, and the Mortgage, as
amended or supplemented as of any such time, complied or will comply in
all material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the respective rules thereunder; (2) the Registration Statement, as
amended as of any such time, did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; and (3) the Prospectus, as supplemented as of
any such time, will not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (A) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(B) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by any of you specifically for use in connection with the preparation of
the Registration Statement or the Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean the
later of (i) each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective or (ii) the time and date of the filing of the Company's most
recent Annual Report on Form 10-K. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the form of basic prospectus
relating to the First Mortgage Bonds contained in the Registration
Statement at the Effective Date (unless such basic prospectus has been
amended by the Company subsequent to the Effective Date, in which case
"Basic Prospectus" shall mean the form of basic prospectus as so
amended). "Prospectus" shall mean the Basic Prospectus as supplemented
by the Prospectus Supplement and as it may be further amended or
supplemented at the particular time referred to. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including all incorporated documents, exhibits and
financial statements, as it may be amended at the particular time
referred to. "Rule 415" and "Rule 424" refer to such rules under the
Act. Any reference herein to the Registration Statement, the Basic
Prospectus, the Prospectus Supplement or the Prospectus shall be deemed
to refer to and include the documents deemed to be incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be; and any reference
herein to the terms "amend," "amended," "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has been no
material adverse change in the condition (financial or other), earnings,
business or properties of the Company or any of its subsidiaries (the
"Subsidiaries"), taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Registration Statement and the Prospectus.
(e) The Illinois Commerce Commission has entered an order, dated
October 5, 1994, as amended by an order dated November 2, 1994,
authorizing the issuance and sale of the Notes by the Company on terms
and conditions not inconsistent with the terms and conditions set forth
in or contemplated by this Agreement. The Notes, when issued and sold
by the Company, will comply in all material respects with the terms,
conditions and limitations set forth in such order. A copy of such
order has been delivered to the Agents. Such order is in full force and
effect and has not been amended, supplemented or otherwise modified
without the consent of the Agents and counsel for the Agents.
(f) The creation, issuance and sale of the Notes have been duly
and validly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Mortgage and
delivered and paid for by the purchasers thereof, the Notes will
constitute valid and legally binding obligations of the Company entitled
to the benefits and security afforded by the Mortgage equally and
ratably with the other First Mortgage Bonds outstanding thereunder; the
Mortgage has been duly authorized, executed and delivered by the Company
and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to laws relating
to or affecting generally the enforcement of creditors rights,
including, without limitation, bankruptcy, insolvency and reorganization
laws and to general equitable principles; and the Notes and the Mortgage
conform to the descriptions thereof in the Registration Statement and
the Prospectus.
(g) The issuance and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Mortgage, this
Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or assets of
the Company is subject, nor will such action result in any violation of
the provisions of the Company s Articles of Incorporation, as amended,
or the Bylaws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its property or assets; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required for
the issuance and sale of the Notes or the consummation by the Company of
the other transactions contemplated by this Agreement or any Terms
Agreement or the Mortgage except such as have been obtained prior to the
Execution Time and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the public offering of
the Notes.
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any property
of the Company or any of its Subsidiaries is the subject which, if
determined adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse effect on the
financial position, stockholders equity or results of operations of the
Company and its Subsidiaries taken as a whole; and, to the best of the
Company s knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(i) There are no contracts or documents of the Company or any of
its Subsidiaries that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder that have not been so described or filed.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms and
conditions set forth herein, the Company hereby authorizes, on an exclusive
basis, each of the Agents to act as its agent to solicit offers for the
purchase of all or part of the Notes from the Company. On the basis of the
representations and warranties, and subject to the terms and conditions set
forth herein, each of the Agents agrees, as agent of the Company, to use its
reasonable best efforts to solicit offers to purchase the Notes from the
Company upon the terms and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures.
Subject to the Procedures, the Company reserves the right, in its sole
discretion, to reject any offer to purchase Notes, in whole or in part. In
addition, the Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitations of offers
to purchase Notes from the Company until such time as the Company has advised
them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission on the Closing Date
with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent pursuant to this subsection, in an amount
equal to that percentage specified in Schedule I hereto of the aggregate
principal amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
Subject to the provisions of this Section 2 and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for
the Company at such times and in such amounts as such Agent deems advisable.
The Company may from time to time offer Notes for sale otherwise than through
an Agent; provided, however, that so long as this Agreement shall be in
effect, the Company shall not solicit or accept offers to purchase Notes
through any agent other than an Agent.
(b) Subject to the terms and conditions stated herein, whenever the
Company and either of you determine that the Company shall sell Notes
directly to a Purchaser, each such sale of Notes shall be made in accordance
with the terms of this Agreement and, unless otherwise agreed by the Company
and the Purchaser, any supplemental agreement relating thereto between the
Company and the Purchaser. Each such supplemental agreement (which shall be
substantially in the form of Exhibit B hereto) is herein referred to as a
"Terms Agreement." The Purchaser's commitment to purchase Notes pursuant to
any Terms Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto
and specify, among other things, the principal amount of such Notes, the
price to be paid to the Company for such Notes, the rate at which interest
will be paid on the Notes, the Closing Date for such Notes, the place of
delivery of the Notes and payment therefor, the method of payment and any
modification of the requirements for the delivery of the opinions of counsel,
the certificates from the Company or its officers, and the letter from the
Company s independent public accountants, pursuant to Section 6(b). Such
Terms Agreement shall also specify the period of time referred to in Section
4(m).
Delivery of the certificates for Notes sold to the Purchaser pursuant to
any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the respective Terms Agreement, not later than the
Closing Date set forth in such Terms Agreement, against payment of funds to
the Company in the net amount due to the Company for such Notes by the method
and in the form set forth in the respective Terms Agreement.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes, the
Company will not file any amendment to the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act, (ii) a Pricing Supplement or (iii) a
supplement relating to an offering of First Mortgage Bonds other than
the Notes) unless the Company has furnished each of you and counsel for
the Agents a copy for your review prior to filing and given each of you
and counsel for the Agents a reasonable opportunity to comment on any
such proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause each supplement to the Prospectus to be
filed with the Commission pursuant to the applicable paragraph of Rule
424 within the time period prescribed. The Company will promptly advise
each of you (i) when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424, (ii) when,
prior to the termination of the offering of the Notes, any amendment of
the Registration Statement shall have been filed or becomes effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the institution or threatening of any proceeding for that purpose and
(v) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it shall
be necessary to amend the Registration Statement or to supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) notify each of you to
suspend solicitation of offers to purchase Notes (and, if so notified by
the Company, each of you shall forthwith suspend such solicitation and
cease using the Prospectus as then supplemented), (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of
this Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance and (iii) supply any
supplemented Prospectus to each of you in such quantities as you may
reasonably request; provided, however, that should any such event relate
solely to activities of you, then you shall assume the expense of
preparing and furnishing any such amendment or supplement. If such
amendment or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraph (g) of this Section 4 in
connection with the preparation of filing of such amendment or
supplement are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon the
effectiveness of an amendment to the Registration Statement, if such an
amendment is required, resume your obligation to solicit offers to
purchase Notes hereunder.
(c) During the term of this Agreement, the Company will timely
file all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act. In addition, on
the date on which the Company (or as soon as practicable thereafter)
makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which
the Company proposes to describe, in a document filed pursuant to the
Exchange Act, the Company will furnish to each of you and counsel for
the Agents the information contained in such announcement. The Company
will notify each of you of any downgrading in the rating of the Notes or
any other debt securities of the Company, or any public announcement of
placement of the Notes or any other debt securities of the Company on
what is commonly termed a watch list for possible downgrading, by any
nationally recognized statistical rating organization (as defined for
purposes of Rule 436(g) under the Act), promptly after the Company
learns of any such downgrading or public announcement.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(e) The Company will furnish to each of you and your counsel,
without charge (except as otherwise provided herein), a reasonable
number of copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by the
Act, as many copies of the Prospectus and any supplement thereto as you
may reasonably request.
(f) The Company will cooperate with the Agents in arranging for
the qualification of the Notes for sale under the laws of such
jurisdictions as any of you may designate, will maintain such
qualifications in effect so long as required for the distribution of the
Notes and, upon your request, will arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction or to comply with any other requirement reasonably deemed
by the Company to be unduly burdensome.
(g) During the term of this Agreement, the Company shall furnish
to each of you and counsel for the Agents (i) copies of all annual,
quarterly and other reports furnished to stockholders, (ii) copies of
all annual, quarterly and current reports (without exhibits but
including documents incorporated by reference therein) of the Company
filed with the Commission under the Exchange Act and (iii) such other
information concerning the Company as you may reasonably request from
time to time.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements
of its accountants and counsel, the cost of printing or other production
and delivery of the Registration Statement, the Prospectus, all
amendments thereof and supplements thereto, the Mortgage, this Agreement
and all other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred pursuant to Section
4(f), the fees and disbursements of the Trustee and the fees of any
ratings agency that rates the Notes, (ii) reimburse each of you on a
monthly basis for all reasonable out-of-pocket expenses authorized by
the Company in advance and incurred by you in connection with this
Agreement (including, but not limited to, advertising expenses) and
(iii) pay the reasonable fees and expenses of Chapman and Cutler,
counsel for the Agents, incurred in connection with the implementation
of the program for the offer and sale of the Notes as contemplated by
this Agreement, not exceeding in the aggregate $31,000 (inclusive of the
fees and expenses incurred pursuant to Section 4(f)).
(i) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be a new making to you of the representations and
warranties of the Company in Section 1 (except that such representations
and warranties shall be deemed to relate solely to the Registration
Statement as then amended and to the Prospectus as then amended and
supplemented to relate to such Notes).
(j) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement
relating to any offering of First Mortgage Bonds other than the Notes or
(ii) a Pricing Supplement) the Company will deliver or cause to be
delivered promptly to each of you a certificate of the Company, signed
by its Chairman of the Board, President or any Vice President and by its
principal financial or accounting officer, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(e) but modified to relate to
the last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of
the effectiveness of such amendment or the filing of such supplement.
(k) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement
relating to any offering of First Mortgage Bonds other than the Notes or
(ii) a Pricing Supplement), the Company shall furnish or cause to be
furnished promptly to each of you a written opinion of Timothy W. Kirk,
Esq., Director-General Counsel of the Company, satisfactory to each of
you, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form satisfactory to each of you,
of the same tenor as the opinion referred to in Section 5(b), but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement or, in lieu of such opinion,
such counsel may furnish each of you with a letter to the effect that
you may rely on such counsel s last opinion to the same extent as though
it were dated the date of such letter authorizing reliance (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement).
(l) Except as otherwise provided in subsection (n) of this Section
4, each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by (i) an amendment or supplement
relating to any offering of First Mortgage Bonds other than the Notes or
(ii) a Pricing Supplement) to set forth amended or supplemental
financial information (derived from the accounting records of the
Company subject to the internal controls of the Company's accounting
system or derived directly from such records by computation), the
Company shall cause its independent public accountants promptly to
furnish each of you a letter, dated the date of the effectiveness of
such amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the letter referred to
in Section 5(f) with such changes as may be necessary to reflect the
amended and supplemental financial information included or incorporated
by reference in the Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter; provided, however,
that if the Registration Statement and the Prospectus are amended or
supplemented solely to include financial information as of and for a
fiscal quarter, Arthur Andersen LLP may limit the scope of such letter
to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature that, in
the reasonable judgment of either Agent, such letter should cover such
other information.
(m) During the period, if any, specified in any Terms Agreement,
the Company shall not, without the prior consent of the Purchaser
thereunder, issue or announce the proposed issuance of any of its First
Mortgage Bonds, including the Notes, with maturities or other terms
substantially similar to the Notes being purchased pursuant to such
Terms Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (j), (k) and (1) of this Section 4 during any
period (which may occur from time to time during the term of this
Agreement) for which the Company has instructed the Agents to suspend
the solicitation of offers to purchase Notes; provided that, during any
such period, any Purchaser does not then hold any Notes purchased
pursuant to a Terms Agreement. Whenever the Company has instructed the
Agents to suspend the solicitation of offers to purchase Notes for any
such period, however, prior to instructing the Agents to resume the
solicitation of offers to purchase Notes or prior to entering into any
Terms Agreement, the Company shall be required to comply with the
provisions of subsections (j), (k) and (1) of this Section 4, but only
to the extent of delivering or causing to be delivered the most recent
certificate, opinion or letter, as the case may be, which would have
otherwise been required under each such subsection unless the Agents
otherwise reasonably request that such documents in respect of prior
periods be delivered.
(o) As soon as practicable after the Execution Time, and from time
to time thereafter, if required, the Company will make all recordings,
registrations and filings necessary to perfect and preserve the lien of
the Mortgage and the rights created under the Supplemental Indenture.
5. Conditions to the Obligations of the Agents. The obligations of
each Agent to solicit offers to purchase the Notes shall be subject to (i)
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, on the Effective Date and when any
supplement to the Prospectus is filed with the Commission, (ii) the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, (iii) the performance by the Company of its obligations
hereunder and (iv) the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424, the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required
by Rule 424; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to each Agent the opinion of
Timothy W. Kirk, Esq., Director-General Counsel of the Company, dated
the Execution Time, to the effect that:
(i) The Company is a validly organized and existing
corporation in good standing under the laws of the State of
Illinois.
(ii) The Company is a public utility duly authorized by its
Articles of Incorporation, as amended, to carry on the business in
which it is engaged, as set forth in the Prospectus, and to own and
operate the properties owned and used by it in such business; and
the Company has the legal right to function and operate as an
electric and gas utility in the State of Illinois.
(iii) Except as to property acquired subsequent to the
execution and delivery of the Supplemental Indenture, the Company has
good and sufficient title to all the property described or referred to
in and purported to be conveyed by the Mortgage (except such property
as may have been disposed of and released from the lien thereof in
accordance with the terms thereof), subject only to the lien of the
Mortgage, to exceptions and reservations specifically set forth
therein, to permissible encumbrances as therein defined and to
matters specified in the Prospectus; the description in the Mortgage
of such property is adequate to constitute the Mortgage a lien
thereon; the Mortgage, subject only to exceptions and reservations
specifically set forth therein, to permissible encumbrances as
therein defined and to matters specified in the Prospectus as
aforesaid, constitutes a valid direct first mortgage lien on such
property, which includes substantially all of the fixed property of
the Company, and on the franchises and permits of the Company
pertaining to the operation of such property; all fixed property,
and all franchises and permits pertaining to the operation thereof,
acquired by the Company after the date of delivery of the
Supplemental Indenture will, upon such acquisition, become subject
to the lien of the Mortgage to the extent provided therein,
subject, however, to permissible encumbrances as therein defined,
to liens, defects and limitations, if any, existing or placed
thereon at the time of acquisition thereof by the Company and to
any rights or equities of others attaching under local law, except
as provisions of the Bankruptcy Reform Act of 1978 may affect the
validity of the lien thereof with respect to property acquired or
proceeds realized by the Company after the commencement of
bankruptcy proceedings with respect to the Company; and the
Mortgage is enforceable in accordance with its terms for the
benefit of the holders of the Notes and other First Mortgage Bonds
outstanding thereunder from time to time, except as such
enforcement may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors' rights generally, except as
affected by the aforesaid provisions of the Bankruptcy Reform Act
of 1978, and except as enforcement is subject to general principles
of equity.
(iv) The Mortgage has been qualified under the Trust Indenture
Act and the Mortgage (except for the Supplemental Indenture) has
been duly filed for recordation and otherwise filed, indexed or
cross-indexed, and appropriate financing statements with respect
thereto have been filed under the Uniform Commercial Code of
Illinois, all in such manner and in such places as are required by
law in order to give constructive notice of, establish, preserve
and protect the lien of the Mortgage on all properties of the
Company of every kind described in and conveyed by the Mortgage.
(v) The Mortgage is in due and proper form, has been duly and
validly authorized by the necessary corporate action, has been duly
and validly executed and delivered and is a valid instrument
legally binding on the Company.
(vi) The creation, issuance and sale of the Notes by the
Company have been duly and validly authorized by the necessary
corporate action and, when issued within the limitations set forth
in the order from the Illinois Commerce Commission referred to in
paragraph (vii) below and executed and authenticated in accordance
with the provisions of the Mortgage and delivered to and paid for
by the purchasers thereof in accordance with this Agreement, the
Notes will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally
and except as enforcement is subject to general principles of
equity, and will be secured by the lien of and entitled to the
benefits provided by the Mortgage (subject to the exceptions stated
above); and the Notes and the Mortgage conform as to legal matters
with the statements concerning them made in the Prospectus, and
such statements accurately set forth the matters respecting the
Notes and the Mortgage required to be set forth in the Prospectus.
(vii) The order of the Illinois Commerce Commission
authorizing the issuance and sale of the Notes by the Company has been
duly entered and, to the best knowledge of such counsel, is still in
force and effect; and no further approval, authorization, consent,
certificate or order of any state or federal commission or regulatory
authority is necessary with respect to the execution and delivery of
the Mortgage or the issuance and sale of the Notes, except that the
sale of the Notes in certain jurisdictions may be subject to the
securities or "Blue Sky" laws thereof as to which such counsel need
express no opinion.
(viii) The Registration Statement has become effective
under the Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for such purpose have been instituted or
threatened; and although such counsel assumes no responsibility for
the accuracy, completeness or fairness of statements contained in the
Registration Statement, or any amendment thereto, or the
Prospectus, or any amendment thereto or supplement thereof, except
as expressly stated in such counsel's opinion pursuant to the
requirements of this paragraph (b), such counsel has no reason to
believe that the Registration Statement, at the Effective Date
(other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion), contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus, at the date it was filed (or
transmitted for filing) with the Commission pursuant to Rule 424 or
at the date of such opinion (other than the financial statements
and other financial and statistical information contained therein,
as to which such counsel need express no opinion), included any
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, in the light of the circumstances under which
they were made, not misleading.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(x) Neither the issuance and sale of the Notes nor the
consummation of any of the other transactions herein contemplated
will conflict with, result in a breach of or constitute a default
under the Articles of Incorporation, as amended, or Bylaws of the
Company.
(xi) The statements contained in the Registration Statement
and the Prospectus which are expressed therein to have been made on
the authority of such counsel have been reviewed by such counsel
and, as to matters of law and legal conclusions, are correct.
(xii) Except as disclosed in the Prospectus as then
amended or supplemented, there are no actions, suits, investigations
or proceedings at law or in equity or before or by any court, public
board or body pending or, to the best knowledge of such counsel,
threatened against the Company or any Subsidiary wherein an
unfavorable decision, ruling or finding would have a material adverse
effect on the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus or on the validity or
enforceability against the Company of this Agreement, the Mortgage or
the Notes.
(xiii) Neither the issuance and sale of the Notes nor
the consummation of any of the other transactions herein contemplated
will conflict with, result in a breach of or constitute a default
under the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any Subsidiary is a
party or by which the Company or any Subsidiary or any of their
respective properties is bound.
(xiv) To the best knowledge of such counsel: (A) the
descriptions included in the Registration Statement and the Prospectus
of statutes, legal and other governmental proceedings and of
franchises, contracts and other documents are accurate and fairly
present the information required to be shown and (B) there is no
material legal or governmental proceeding and no franchise, contract
or other document of a character required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit to the Registration Statement, which is not described or
filed as required.
(c) The Company shall have furnished to the Agents the opinion,
dated the Execution Time, of Winthrop, Stimson, Putnam & Roberts,
special counsel for the Company, to the effect set forth in clauses (i),
(v), (vi), (vii), (viii), (ix) and (x) of paragraph (b) of this Section
5 and to the further effect that (i) the Registration Statement, at the
Effective Date, and the Prospectus, at the date it was filed (or
transmitted for filing) with the Commission pursuant to Rule 424 (other
than the financial statements and other financial and statistical
information contained therein, as to which such counsel need express no
opinion), complied as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder and the
documents or portions thereof filed with the Commission pursuant to the
Exchange Act and deemed to be incorporated by reference in the
Registration Statement and the Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion), at the time
they were filed with the Commission, complied as to form in all material
respects with the applicable requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, and (ii)
the Mortgage has been qualified under the Trust Indenture Act. In
rendering such opinion, Winthrop, Stimson, Putnam & Roberts may rely
upon the opinion of Timothy W. Kirk, Esq., Director-General Counsel of
the Company, as to matters governed by Illinois law and, as to matters
of fact, upon certificates of officers of the Company and public
officials.
(d) The Agents shall have received from Chapman and Cutler,
counsel for the Agents, an opinion, dated the Execution Time, with
respect to the issuance and sale of the Notes, the Mortgage, the
Registration Statement, the Prospectus, each amendment thereto or
supplement thereof, if any, and other related matters as the Agents may
reasonably require, and the Company will have furnished to such counsel
such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(e) The Company will have furnished to each Agent a certificate,
dated the Execution Time, of the Company, signed by its Chairman of the
Board, President or any Vice President and by its principal financial or
accounting officer, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct in all material
respects, and the Company has in all material respects complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied hereunder as a condition to the
obligation of the Agents to solicit offers to purchase the Notes.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's best knowledge,
threatened.
(iii) Since the date of the most recent financial
statements included in the Prospectus, there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Company or any Subsidiary, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth or contemplated in the Prospectus.
(f) At the Execution Time, Arthur Andersen LLP shall have
furnished to each Agent a letter, dated as of the Execution Time, in
form and substance reasonably satisfactory to the Agents, confirming
that they are independent accountants within the meaning of the Act and
the Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) In their opinion the audited consolidated financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement and the
Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of
the Exchange Act and the published rules and regulations
thereunder.
(ii) On the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company,
the carrying out of certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter,
a reading of the minutes of the meetings of the Board of Directors,
the Executive Committee of the Board of Directors and the Audit
Committee of the Board of Directors of the Company and the
Subsidiaries and of the Sole Stockholder of the Company and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and the Subsidiaries as to transactions and events subsequent to
the date of the most recent audited consolidated financial
statements included or incorporated by reference in the Prospectus,
nothing came to their attention which caused them to believe that:
(A) any unaudited consolidated financial statements
included or incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations
thereunder; or such unaudited consolidated financial
statements are not prepared on a basis substantially
consistent with that of the audited consolidated financial
statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(B) with respect to the interim period subsequent to the
date of the most recent consolidated financial statements
(other than any capsule information), audited or unaudited,
included or incorporated by reference in the Registration
Statement and the Prospectus, there were any changes at a
specified date (not more than five business days prior to the
date of such letter) in the long-term debt or capital stock of
the Company as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated by
reference in the Registration Statement and the Prospectus, or
for the period from the date of such most recent consolidated
financial statements to such specified date, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated operating revenues,
consolidated operating income, consolidated net income or net
income available for common stock; except in all instances for
changes or decreases which the Registration Statement and the
Prospectus disclose have occurred or may occur or which are
set forth in such letter; and
(C) they have compared certain dollar amounts (or
percentages derived from such dollar amounts) and other
financial information specified by the Agents (1) which appear
in the Prospectus under the caption "Ratio of Earnings to
Fixed Charges," (2) which appear or are incorporated by
reference in the Company s Annual Report on Form 10-K
incorporated by reference in the Registration Statement and
the Prospectus under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations" or
(3) which appear in any of the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Registration
Statement and the Prospectus under the captions "Management s
Discussion and Analysis of Financial Condition and Results of
Operations" and "Ratio of Earnings to Fixed Charges" (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the accounting
records of the Company subject to the internal controls of the
Company s accounting system or are derived directly from such
records by computation) to the accounting records of the
Company or schedules prepared from data in such records and
have found such dollar amounts, percentages and other
financial information to be in agreement.
References to the Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
(g) There shall be in full force and effect the order
of the Illinois Commerce Commission referred to in Section
1(e).
(h) Each Agent shall have received a copy of the
Letter of Representations between the Company, the Trustee
and The Depository Trust Company, satisfactory to each of
you, and summarizing its agreement to hold, safekeep and
effect book-entry transfers of the Notes.
(i) On and as of each Closing Date with respect to the
sale by the Company of Notes, counsel for the Agents shall
have received copies of all documents required to be
delivered to the Trustee under the Mortgage by the Company
in connection with the issuance of Notes on such date.
(j) Prior to the Execution Time, the Company shall
have furnished to each Agent such further information,
documents, certificates and opinions of counsel as the
Agents may reasonably request.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this
Agreement and all obligations of any Agent hereunder may be
canceled at any time by the Agents. Notice of such cancellation
shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 5 at
the Execution Time shall be delivered at the office of Winthrop,
Stimson, Putnam & Roberts, One Battery Park Plaza, New York, New
York 10004.
6. Conditions to the Obligations of the Purchaser. The
obligations of the Purchaser to purchase any Notes will be
subject to the accuracy of the representations and warranties on
the part of the Company herein as of the date of any related
Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or
threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms Agreement, the
Purchaser shall have received, appropriately updated, (i) a
certificate of the Company, dated as of the Closing Date, to
the effect set forth in Section 5(e), (ii) the opinion of
Timothy W. Kirk, Director-General Counsel to the Company,
dated as of the Closing Date, substantially to the effect
set forth in Section 5(b), (iii) the opinion of Winthrop,
Stimson, Putnam & Roberts, special counsel for the Company,
dated as of the Closing Date, substantially to the effect
set forth in Section 5(c), (iv) the opinion of Chapman and
Cutler, counsel for the Purchaser, substantially to the
effect set forth in Section 5(d) and (v) the letter of
Arthur Andersen LLP, independent public accountants for the
Company, dated as of the Closing Date, substantially to the
effect set forth in Section 5(f); provided, however, that
references to the Registration Statement and the Prospectus
in such certificate, opinions and letter shall be to the
Registration Statement and the Prospectus as then amended
and supplemented.
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information,
certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as
provided in this Agreement and any Terms Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in
this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance
to the Purchaser and counsel to the Purchaser, such Terms
Agreement and all obligations of the Purchaser thereunder and
with respect to the Notes subject thereto may be canceled at, or
any time prior to, the respective Closing Date by the Purchaser.
Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. The Company agrees that any person who has agreed to
purchase and pay for any Note, including a Purchaser and any
person who purchases pursuant to a solicitation by any of the
Agents, shall have the right to refuse to purchase such Note if,
at the Closing Date therefor, either (a) any condition set forth
in Section 5 or 6, as applicable, shall not be satisfied or (b)
subsequent to the agreement to purchase such Note, there shall
have occurred (i) any change in or affecting the business or
properties of the Company and its Subsidiaries, considered as one
enterprise, the effect of which, in the reasonable judgment of
such person, has a material adverse effect on the investment
quality of such Note or (ii) any event described in paragraphs
(ii), (iii), (iv) or (v) of Section 9(b).
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Agent and each person
who controls either Agent within the meaning of the Act or the
Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which it or any of them may
become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions, suits or proceedings in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement as
originally filed, or in any amendment thereto, covering the
registration of the Notes, or in the Basic Prospectus, the
Prospectus or in any prospectus relating to the Notes, or in any
amendment thereto or supplement thereof, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, and agrees to reimburse
each such indemnified person for any legal or other expenses
reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability, action, suit
or proceeding as such expenses are incurred; provided, however,
that (i) that Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by either Agent specifically for use
therein, or arises out of or is based upon the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) such indemnity with
respect to the Basic Prospectus or any preliminary Prospectus
shall not inure to the benefit of either Agent (or any person
controlling such Agent) from or through whom the person asserting
any such loss, claim, damage or liability purchased the Notes
which are the subject thereof if such person was not sent or
given a copy of the Prospectus, excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale
of such Notes to such person in any case where such delivery is
required by the Act and the untrue statement or the omission of a
material fact contained in the Basic Prospectus or any
preliminary Prospectus was corrected in the Prospectus; provided
that the Company shall have delivered such Prospectus in a timely
manner and in sufficient quantities to permit such delivery by
the Agents. This agreement of indemnity will be in addition to
any liability which the Company may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signed the Registration Statement and each person who
controls the Company within the meaning of the Act or the
Exchange Act to the same extent as the foregoing indemnity from
the Company to each Agent, but only with reference to written
information furnished to the Company by such Agent specifically
for use in connection with the preparation of the documents
referred to in such foregoing indemnity. This agreement of
indemnity will be in addition to any liability which either Agent
may otherwise have.
(c) Promptly after receipt by any person indemnified under
this Section 8 of notice of the commencement of any action, suit
or proceeding, such person will, if a claim in respect thereof is
to be made against an indemnifying party under this Section 8,
notify such indemnifying party in writing of the commencement
thereof; but the omission so to notify such indemnifying party
will not relieve it from any liability which it may have to any
indemnified person otherwise than under this Section 8. In case
any such action, suit or proceeding is brought against any person
indemnified under this Section 8 and such indemnified person
notifies an indemnifying party of the commencement thereof, such
indemnifying party will be entitled to participate therein and,
to the extent that it may elect by written notice delivered to
such indemnified person promptly after receiving the aforesaid
notice from such indemnified person, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
person; provided, however, that if the defendants in any such
action, suit or proceeding include both such indemnified person
and such indemnifying party and such indemnified person shall
have reasonably concluded that there may be legal defenses
available to it and/or other indemnified persons which are
different from or in addition to the defenses available to such
indemnifying party, the indemnified person or persons shall have
the right to be represented by separate counsel in the defense of
such action, suit or proceeding on behalf of such indemnified
person or person. Upon receipt of notice from such indemnifying
party to such indemnified person of the former's election so to
assume the defense of such action, suit or proceeding and
approval by such indemnified person of counsel, such indemnifying
party will not be liable to such indemnified person under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified person in connection with the defense thereof
unless (i) such indemnified person shall have employed separate
counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that such indemnifying
party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel), approved by
the Agents in the case of indemnification under paragraph (a) of
this Section 8), (ii) such indemnifying party shall not have
employed counsel reasonably satisfactory to such indemnified
person to represent such indemnified person within a reasonable
time after notice of commencement of such action, suit or
proceeding or (iii) such indemnifying party shall have authorized
the employment of counsel for such indemnified person at the
expense of such indemnifying party; provided that if clause (i)
or (iii) above is applicable, the liability of such indemnifying
party shall be only in respect of the counsel specifically
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under paragraph (a) or (b) of this Section 8 in respect of
any losses, claims, damages or liabilities referred to in this
Section 8, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
such losses, claims, damages or liabilities, in such proportion
as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Agent or Agents, as the case
may be, on the other hand from the offering of the Notes to which
such losses, claims, damages and liabilities relate. If,
however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Agent
or Agents, as the case may be, on the other hand in connection
with the statements or omissions which resulted in such losses,
claims, considerations. The relative benefits received by the
Company on the one hand and the Agent or Agents, as the case may
be, on the other hand in connection with the offering of the
Notes shall be deemed to be in the same proportion as the total
net proceeds from the offering of such Notes (before deducting
expenses) received by the Company bear to the total commissions
and discounts, if any, received by such Agent or Agents, as the
case may be, in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged omission to state a material fact required to
be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the
Company on the one hand or by the Agent or Agents, as the case
may be, on the other hand and the parties relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Agent
agree that it would not be just and equitable if contribution
pursuant to this paragraph (d) were determined by per capita
allocation (even if both Agents 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 paragraph (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to above in this paragraph (d) shall be deemed to
include any legal or other expenses reasonable incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
paragraph (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total sales price
received by the Company for Notes purchased by or through it
exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls
an Agent within the meaning of Section 15 of the Act shall have
the same rights to contribution as such Agent, and each director
of the Company and each person, if any, who controls the Company
within the meaning of Section 15 of the Act shall have the same
rights to contribution as the Company. The obligations of each
of the Agents under this paragraph (d) to contribute are several
and are not joint. Any person entitled to contribution shall,
promptly after receipt of notice of the commencement of any
action, suit or proceeding against such person in respect of
which a claim for contribution may be made against a party or
parties under this paragraph (d), notify such party or parties
from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve such party or
parties from any other obligation it or they may have otherwise
than under this paragraph (d).
(e) The indemnification and contribution provisions
contained in this Section 8 shall be applicable to each Purchaser
which agrees to purchase Notes pursuant to a Terms Agreement. In
each such event, each reference to "Agent" contained in this
Section 8 shall be deemed to include such Purchaser with respect
to the offering and sale of such Notes.
9. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 9. This
Agreement may be terminated by either the Company as to any of
you or any of you insofar as this Agreement relates to such of
you, by giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so
terminate at the close of business on the first business day
following the receipt of such notice by the party to whom such
notice is given. In the event of such termination, no party
shall have any liability to the other party hereto, except as
provided in the third paragraph of Section 2(a), Section 4(h),
Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company prior to delivery of any payment for Notes to be
purchased thereunder, if prior to such time (i) the Purchaser
shall exercise its right to refuse to purchase the Notes which
are the subject of such Terms Agreement in accordance with the
provisions of Section 7, or (ii) there shall have occurred any
outbreak or material escalation of hostilities or other national
or international calamity or crisis, the effect of which on the
financial markets of the United States is such as to make it, in
the reasonable judgment of the Purchaser, impractical to market
the Notes or enforce contracts for the sale of the Notes on the
terms and in the manner contemplated in the Prospectus, or (iii)
trading in any CILCORP, Inc.'s common stock shall have been
suspended by the Commission or the New York Stock Exchange or
trading generally on the New York Stock Exchange shall have been
suspended or limited, or minimum prices for trading shall have
been established on such Exchange, or (iv) a banking moratorium
shall have been declared by either Federal or New York
authorities, or (v) if the rating assigned by any nationally
recognized statistical rating organization (as defined for
purposes of Rule 436(g) under the Act) to the Notes or any other
First Mortgage Bonds of the Company as of the date of the
applicable Terms Agreement shall have been lowered since that
date or if any such rating agency shall have publicly announced
that it has placed the Notes or any other First Mortgage Bonds of
the Company on what is commonly termed a watch list for
possible downgrading, or (vi) the subject matter of any amendment
or supplement to the Registration Statement or the Prospectus
prepared and issued by the Company, or the exceptions set forth
in any letter of Arthur Andersen LLP furnished pursuant to
Section 5(f), shall have made it, in the reasonable judgment of
the Purchaser, impracticable or inadvisable to market the Notes
or enforce contracts for the sale of the Notes.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of you
set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or
on behalf of you or the Company or any of the officers, directors
or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
the third paragraph of Section 2(a) and Sections 4(h) and 8
hereof shall survive the termination or cancellation of this
Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of
you, will be mailed, delivered or telegraphed and confirmed to
such of you, at the address specified in Schedule I hereto; or,
if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 300 Liberty Street, Peoria, Illinois
61602, Attention: William R. Dodds.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State
of New York.
14. Counterparts. This Agreement may be executed in
counterparts, which together shall constitute one and the same
instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof shall
have been executed and delivered on behalf of each party hereto.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and you.
Very truly yours,
CENTRAL ILLINOIS LIGHT COMPANY
By:_______________________________
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
hereof.
NATIONAL WESTMINSTER BANK PLC,
NEW YORK BRANCH
By:_______________________________
Title:
PAINEWEBBER INCORPORATED
By:_______________________________
Title:
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal
to the following percentage of the principal amount of each Note
sold by such Agent:
TERM COMMISSION RATE
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years up to and including 30 years .750%
Address for Notice to You:
Notices to National Westminster Bank Plc, New York
Branch shall be directed to it at 175 Water Street, 21st Floor,
New York, New York 10038, attention of Manager-Medium-Term Note
Desk.
Notices to PaineWebber Incorporated shall be directed
to it at 1285 Avenue of the Americas, New York, New York 10019,
attention of Peter Abramenko MTN Desk.
Exhibit A
CENTRAL ILLINOIS LIGHT COMPANY
FIRST MORTGAGE BONDS, MEDIUM-TERM NOTE A SERIES
ADMINISTRATIVE PROCEDURES
First Mortgage Bonds, Medium-Term Note A Series (the Notes ), are to be
offered on a continuing basis by Central Illinois Light Company (the
"Company"). National Westminster Bank Plc, New York Branch and PaineWebber
Incorporated, as agents (each an "Agent" and collectively the "Agents"), have
agreed to use their reasonable best efforts to solicit offers to purchase the
Notes. The Notes are being sold pursuant to a Distribution Agreement between
the Company and the Agents dated December 1, 1994 (the "Distribution
Agreement") to which these administrative procedures are attached as an
exhibit. Capitalized terms used herein and not otherwise defined herein
shall have the meaning ascribed to them in the Distribution Agreement.
The Notes will be issued in one or more separate series under the
Mortgage as it has been supplemented by the Supplemental Indenture providing
for the issuance of the Notes. Bankers Trust Company ("Bankers Trust") will
act as the paying agent (the "Paying Agent") for the payment of principal of
and premium, if any, and interest on the Notes and will perform, as the
Paying Agent, unless otherwise specified, the other duties specified herein.
The Notes will rank equally and ratably with all other bonds outstanding
or hereafter issued under the Mortgage. The Notes have been registered with
the Securities and Exchange Commission (the "Commission") and, unless
otherwise specified in the applicable Pricing Supplement for such Notes, will
bear interest at fixed rates. If the applicable Pricing Supplement specifies
that any Note will bear interest at a variable rate, the administrative
procedures set forth below will be amended in accordance with the provisions
of the Distribution Agreement to include procedures relating to such Notes.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Bankers Trust as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained by DTC (a
"Book-Entry Note") or a certificate delivered to the holder thereof or a
person designated by such holder (a "Certificated Note"). Except as set
forth in the Prospectus, (i) each Note will be initially issued as a
Book-Entry Note and (ii) an owner of a Book-Entry Note will not be entitled
to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of offers by the Agents and the sale as a result thereof by the
Company are explained below. Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part II hereof. Administrative procedures applicable
to both Book-Entry Notes and Certificated Notes are set forth in Part III
hereof. Administrative responsibilities, document control and record-keeping
functions will be handled for the Company by its Secretary. The Company will
advise the Agents and the Trustee in writing of those persons handling
administrative responsibilities with whom the Agents and the Trustee are to
communicate regarding offers to purchase Notes and the details of their
delivery.
To the extent the procedures set forth below conflict with the
provisions of the Notes, the Mortgage or the Distribution Agreement, the
relevant provisions of the Notes, the Mortgage and the Distribution Agreement
shall control. "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies
in New York, New York, or any other location specified as a place of payment
under the Mortgage or the Notes, are generally authorized or required by law,
regulation or executive order to remain closed.
Part I: Administrative Procedures for Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Bankers Trust will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations to be delivered from the Company and Bankers Trust to DTC
and a Medium-Term Note Certificate Agreement between Bankers Trust and DTC,
dated as of October 21, 1988 (the "MTN Certificate Agreement"), and its
obligations as a participant in DTC, including DTC s Same-Day Funds
Settlement System ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the Company will issue a
single global security in fully registered
form without coupons (a "Global Security")
representing up to $150,000,000 principal
amount of all such Notes that have the
same interest rate, interest payment
dates, date of maturity ("Maturity Date"),
redemption provisions, if any, and other
terms and provisions (collectively, the
"Terms"). Each Global Security shall be
authenticated on the settlement date
therefor and will be dated and issued as
of the date of such authentication by the
Trustee. No Global Security will
represent any Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor s
Corporation (the "CUSIP Service Bureau")
for the reservation of one series of CUSIP
numbers (including tranche numbers), which
series consists of approximately 900 CUSIP
numbers and relates to Global Securities
representing the Book-Entry Notes. The
Company has obtained from the CUSIP
Service Bureau a written list of such
series of reserved CUSIP numbers and has
delivered to DTC and the Trustee a written
list of 900 CUSIP numbers of such series.
The Company will assign CUSIP numbers to
Global Securities as described below under
Settlement Procedure "B". It is expected
that DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers
that the Company has assigned to Global
Securities. At any time when fewer than
100 of the reserved CUSIP numbers of the
series remain unassigned to Global
Securities, the Trustee shall so advise
the Company and, if it deems necessary,
the Company will reserve additional CUSIP
numbers for assignment to Global
Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP
numbers, the Company shall deliver a list
of such additional CUSIP numbers to the
Trustee and DTC.
Registration: Each Global Security will be registered in
the name of Cede & Co., as nominee for
DTC, on the security register maintained
under the Mortgage. It is expected that
the beneficial owner of a Book-Entry Note
(or one or more indirect participants in
DTC designated by such owner) will
designate one or more participants in DTC
(with respect to such Note, the
"Participants") to act as agent or agents
for such owner in connection with the
book-entry system maintained by DTC, and
it is expected that DTC will record in
book-entry form, in accordance with
instructions provided by such
Participants, a credit balance with
respect to such beneficial owner in such
Note in the account of such Participants.
The ownership interest of such beneficial
owner in such Note will be recorded
through the records of such Participants
or through the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC
and, in turn by Participants (and in
certain cases, one or more indirect
participants in DTC) acting on behalf of
beneficial transferees and transferors of
such Note.
Consolidations: Upon receipt of instructions from the
Company, Bankers Trust may deliver to DTC
and the CUSIP Service Bureau at any time a
written notice of consolidation (a copy of
which shall be attached to the resulting
Global Security) specifying (i) the CUSIP
numbers of two or more Outstanding Global
Securities that represent Book-Entry Notes
having the same Terms and for which
interest has been paid to the same date,
(ii) a date, occurring at least thirty
days after such written notice is
delivered and at least thirty days before
the next Interest Payment Date (as defined
below) for such Book-Entry Notes, on which
such Global Securities shall be exchanged
for a single replacement Global Security
and (iii) a new CUSIP number to be
assigned to such replacement Global
Security. Upon receipt of such a notice,
it is expected that DTC will send to its
participants (including Bankers Trust) a
written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, Bankers Trust will deliver
to the CUSIP Service Bureau a written
notice setting forth such exchange date
and the new CUSIP number and stating that,
as of such exchange date, the CUSIP
numbers of the Global Securities to be
exchanged will no longer be valid. On the
specified exchange date, Bankers Trust
will exchange such Global Securities for a
single Global Security bearing the new
CUSIP number, and the CUSIP numbers of the
exchanged Global Securities will, in
accordance with CUSIP Service Bureau
procedures, be cancelled and not
reassigned until the Book-Entry Notes
represented by such exchanged Global
Securities have matured or been redeemed.
Maturities: Each Book-Entry Note will mature on a date
not less than one year nor more than 30
years after the date of settlement for
such Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of $1,000 or any amount
in excess thereof which is an integral
multiple of $1,000. Global Securities
will be denominated in principal amounts
not in excess of $150,000,000.
Interest: General. Interest on each Book-Entry Note
will accrue from and including the
original issue date of, or the last date
to which interest has been paid on, the
Global Security representing such Note.
Each payment of interest on a Book-Entry
Note will include interest accrued to but
excluding the Interest Payment Date
(defined below) or the Maturity Date or,
upon earlier redemption, the date of such
redemption (the "Redemption Date"), as the
case may be. Interest payable on the
Maturity Date or the Redemption Date of a
Book-Entry Note will be payable to the
person to whom the principal of such Note
is payable. Standard & Poor s Corporation
will use the information received in the
pending deposit message described under
Settlement Procedure "C" below in order to
include the amount of any interest payable
and certain other information regarding
the related Global Security in the
appropriate weekly bond report published
by Standard & Poor s Corporation.
Record Dates. The record date with respect
to any Interest Payment Date with respect
to any Book-Entry Note shall be the date
specified in the applicable Pricing
Supplement for such Note (typically,
fifteen calendar days preceding such
Interest Payment Date) (whether or not a
Business Day) immediately preceding such
Interest Payment Date (each, a "Regular
Record Date").
Interest Payment Dates. Interest payments
on any Book-Entry Note will be made
semi-annually on dates of each year
specified in the applicable Pricing
Supplement for such Note (each, an
"Interest Payment Date") and on the
Maturity Date or the Redemption Date.
Payments of Principal
and Interest: Payment of Interest Only. Promptly after
each Regular Record Date, the Paying Agent
will deliver to the Company and DTC a
written notice specifying by CUSIP number
the amount of interest to be paid on each
Global Security on the following Interest
Payment Date (other than an Interest
Payment Date coinciding with the Maturity
Date) and the total of such amounts. It
is expected that DTC will confirm the
amount payable on each Global Security on
such Interest Payment Date by reference to
the appropriate (daily or weekly) bond
reports published by Standard & Poor s
Corporation. The Company will pay to the
Paying Agent the total amount of interest
due on such Interest Payment Date (other
than on the Maturity Date), and the Paying
Agent will pay such amount to DTC at the
times and in the manner set forth under
"Manner of Payment" below. If any
Interest Payment Date for a Book-Entry
Note is not a Business Day, the payment
due on such day shall be made on the next
succeeding Business Day and no interest
shall accrue on such payment for the
period from and after such Interest
Payment Date.
Payments on Maturity Date, Etc. On or
about the first Business Day of each month,
the Paying Agent will deliver to the
Company and DTC a written list of principal
and interest to be paid on each Global
Security maturing either on the Maturity
Date or the Redemption Date in the
following month. The Company and DTC will
confirm with the Paying Agent the amounts
of such principal and interest payments
with respect to each such Global Security
on or about the fifth Business Day
preceding the Maturity Date or the
Redemption Date, as the case may be,
of such Global Security. The Company will
pay to the Paying Agent the principal
amount of such Global Security, together
with interest due on such Maturity Date or
Redemption Date. The Paying Agent will
pay such amounts to DTC at the times and
in the manner set forth below under" Manner
of Payment." If the Maturity Date or the
Redemption Date of a Global Security
representing Book-Entry Notes is not a
Business Day, the payment due on such day
shall be made on the next succeeding
Business Day and no interest shall accrue
on such payment for the period from and
after such Maturity Date or the Redemption
Date. Promptly after payment to DTC of
the principal and interest due at the
Maturity Date or the Redemption Date of
such Global Security, the Paying Agent
will cancel such Global Security in
accordance with the terms of the Mortgage.
Manner of Payment. The total amount of
any principal and interest due on Global
Securities on any Interest Payment Date or
on the Maturity Date or the Redemption
Date shall be paid by the Company to the
Paying Agent in immediately available
funds for use by the Paying Agent no
later than 9:30 A.M. (New York City time)
on such date. The Company will make such
payment on such Global Securities by wire
transfer to the Paying Agent or by the
Paying Agent s debiting the account of the
Company maintained with the Paying Agent.
The Company will confirm such instructions
in writing to the Paying Agent. Prior to
10:00 A.M. (New York City time) on each
Maturity Date or Redemption Date or as
soon as possible thereafter, the Paying
Agent will pay by separate wire transfer
(using Fedwire message entry instructions
in a form previously agreed to with DTC)
to an account at the Federal Reserve Bank
of New York previously agreed to with DTC,
in funds available for immediate use by
DTC, each payment of principal (together
with interest thereon) due on Global
Securities on any Maturity Date or
Redemption Date. On each Interest
Payment Date, interest payments shall be
made to DTC in same day funds in
accordance with existing arrangements
between the Paying Agent and DTC.
Thereafter, on each such date, it is
expected that DTC will pay, in accordance
with its SDFS operating procedures then in
effect, such amounts in funds available
for immediate use to the respective
Participants in whose names the Book-Entry
Notes represented by such Global
Securities are recorded in the book-entry
system maintained by DTC. Neither the
Company nor the Paying Agent shall have
any responsibility or liability for the
payment by DTC to such Participants of
the principal of and interest on the
Book-Entry Notes.
Withholding Taxes. The amount of any
taxes required under applicable
law to be withheld from any interest
payment on a Book-Entry Note will
be determined and withheld by the
Participant, indirect participant in
DTC or other person responsible for
forwarding payments and materials
directly to the beneficial owner of
such Note.
Settlement: The receipt by the Company of immediately
available funds in payment for a
Book-Entry Note and the authentication and
issuance of the Global Security
representing such Note shall constitute
"settlement" with respect to such Note.
All orders accepted by the Company will be
settled on the fifth Business Day
following the date of sale of a Book-Entry
Note unless the Company, the Trustee and
the purchaser agree to settlement on
another day that shall be no earlier than
the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note sold by the Company
through an Agent, as agent, shall be as
follows:
A. Such Agent will advise the Company by
telephone, followed by facsimile
transmission, of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. Interest rate.
4. Interest Payment Dates.
5. Redemption provisions, if any.
6. Settlement date/Issue date.
7. Issue price.
8. Agent s commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
9. Any other terms not inconsistent
with the provisions of the Mortgage.
B. The Company will assign a CUSIP number
to such Book-Entry Note and will advise
Bankers Trust by facsimile transmission
or other mutually acceptable means of the
information set forth in Settlement
Procedure "A" above and the name of such
Agent and the CUSIP number assigned to
such Book-Entry Note. The Company will
notify the Agent of such CUSIP number by
telephone as soon as practicable. Each
such communication by the Company shall
constitute a representation and warranty
by the Company to Bankers Trust and each
Agent that (i) such Note is then, and at
the time of issuance and sale thereof will
be, duly authorized for issuance and sale
by the Company, (ii) the Global Security
representing such Note will conform with
the terms of the Mortgage pursuant to
which such Note and Global Security
are issued and comply with the terms and
limitations contained in the order of the
Illinois Commerce Commission referred to
in Section 1(e) of the Distribution
Agreement and (iii) upon authentication
and delivery of such Global Security, the
aggregate principal amount of all Notes
initially offered issued under the
Mortgage together will not exceed
$65,000,000 (except for Global Securities
or Notes represented by and authenticated
and delivered in exchange for or in lieu
of Notes in accordance with the Mortgage).
C. Bankers Trust will enter a pending
deposit message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, which shall
route such information to such Agent and
Standard & Poor s Corporation:
1. The information set forth in
Settlement Procedure "A"
2. CUSIP number of the Global Security
representing such Note.
3. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. The Trustee will complete and
authenticate the Global Security
representing such Note.
E. It is expected that DTC will credit
such Note to Bankers Trust s participant
account at DTC.
F. Bankers Trust will enter an SDFS
deliver order through DTC s Participant
Terminal System instructing DTC
to (i) debit such Note to Bankers Trust's
participant account and credit
such Note to such Agent's participant
account and (ii) debit such
Agent's settlement account and credit
Bankers Trust s settlement account
for an amount equal to the price of such
Note less such Agent's commission. The
entry of such a deliver order shall
constitute a representation and warranty
by Bankers Trust to DTC that (a) the
Global Security representing such
Book-Entry Note has been issued and
authenticated and (b) Bankers Trust is
holding such Global Security
pursuant to the MTN Certificate Agreement.
G. Such Agent will enter an SDFS deliver
order through DTC s Participant Terminal
System instructing DTC (i) to
debit such Note to such Agent's
participant account and credit such Note
to the participant accounts of the
Participants with respect to such
Note and (ii) to debit the settlement
accounts of such Participants and
credit the settlement account of such
Agent for an amount equal to the
price of such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures "F" and "G" will
be settled in accordance with SDFS
operating procedures in effect on the
settlement date.
I. Bankers Trust will, upon confirming
receipt of such funds from the Agent, wire transfer to the account of
the Company maintained at Bankers Trust Company (for credit to Central
Illinois Light Company, Account No. 50015147) in immediately available
funds in the amount transferred to Bankers Trust in accordance with
Settlement Procedure "F".
J. Such Agent will confirm the purchase
of such Note to the purchaser either by transmitting to the Participants
with respect to such Note a confirmation order or orders through DTC's
institutional delivery system or by mailing a written confirmation to
such purchaser
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited
by an Agent, as agent, and accepted by the
Company for settlement on the first
Business Day after the sale date,
Settlement Procedures "A" through "J" set
forth above shall be completed as soon as
possible but not later than the respective
times (New York City time) set forth
below:
SETTLEMENT
PROCEDURE TIME
A 11:00 A.M. on the sale date
B 4:00 P.M. on the sale date
C 5:00 P.M. on the sale date
D 9:00 A.M. on the settlement date
E 10:00 A.M. on the settlement date
F-G 3:00 P.M. on the settlement date
H 4:45 P.M. on the settlement date
I-J 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business Day after the sale
date, Settlement Procedures "A," "B" and "C" shall be completed as soon
as practicable but no later than 11:00 A.M. and 4:00 P.M. on the first
Business Day after the sale date with respect to Settlement Procedures
"A" and "B," respectively, and no later than 5:00 P.M. on the first
Business Day after the sale date, with respect to Settlement Procedure
"C." Settlement Procedures "H" and "I" are subject to extension in
accordance with any extension of Fedwire closing deadlines and in the
other events specified in the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Company will instruct Bankers Trust to deliver to DTC a cancellation
message to such effect by no later than 12:00 Noon on the Business Day
immediately preceding the scheduled settlement date and Bankers Trust
will enter such message no later than 2:00 P.M. through DTC's
Participation Terminal System.
Monthly Reports: Monthly, the Trustee will send to the
Company a statement setting forth the
principal amount of Notes outstanding as
of that date under the Mortgage and
setting forth a brief description of any
sales of which the Company has advised
the Trustee but which have not yet been
settled.
Failure to Settle: If Bankers Trust or the Agent fails to
enter an SDFS deliver order with respect
to a Book-Entry Note pursuant to
Settlement Procedure "F" or "G," Bankers
Trust may upon the approval of the
Company deliver to DTC, through DTC s
Participant Terminal System, as soon as
practicable, a withdrawal message
instructing DTC to debit such Note to
Bankers Trust s participant account,
provided that Bankers Trust s participant
account contains a principal amount of
the Global Security representing such
Note that is at least equal to the
principal amount to be debited. If a
withdrawal message is processed with
respect to all the Book-Entry Notes
represented by a Global Security, Bankers
Trust will mark such Global Security
cancelled, make appropriate entries in
Bankers Trust s records and send such
cancelled Global Security to the Company.
The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP
Service Bureau procedures, be cancelled
and not reassigned until the Book-Entry
Notes represented by such Global Security
have matured or been redeemed. If a
withdrawal message is processed with
respect to one or more, but not all, of
the Book-Entry Notes represented by a
Global Security, Bankers Trust will
exchange such Global Security for another
Global Security, which shall represent
the Book-Entry Notes previously
represented by the surrendered Global
Security with respect to which a
withdrawal message has not been processed
and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid to the
Participants with respect to such Note by the beneficial purchaser
thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants and, in turn, the Agent
for such Note may enter SDFS deliver orders through DTC s Participant
Terminal System reversing the orders entered pursuant to Settlement
Procedures "G" and "F," respectively. Thereafter, Bankers Trust will
deliver the withdrawal message and take the related actions described in
the preceding paragraph. If such failure shall have occurred for any
reason other than a default by the Agent in the performance of its
obligations hereunder or under the Distribution Agreement, then the
Company will reimburse such Agent or Bankers Trust as applicable on an
equitable basis for the loss of the use of funds during the period when
they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Notes
to have been represented by a Global Security, the Trustee will provide,
in accordance with Settlement Procedure "D," for the authentication and
issuance of a Global Security representing the other Book-Entry Notes to
have been represented by such Global Security and will make appropriate
entries in its records.
Part II: Administrative Procedures for Certificated Notes
Bankers Trust will serve as registrar in connection with the
Certificated Notes.
Maturities: Each Certificated Note will mature on a
date not less than one year and not more
than 30 years after the date of delivery
by the Company of such Note.
Price to Public: Each Certificated Note will be issued at
the percentage of principal amount
specified in the Prospectus or, if
applicable, the Pricing Supplement
relating to such Note.
Denominations: The denomination of any Certificated Note
will be a minimum of $1,000 or any amount
in excess thereof which is an integral
multiple of $1,000.
Registration: Certificated Notes will be issued only in
fully registered form.
Interest: General. Interest on each Certificated
Note will accrue from and including the
original issue date of, or the last date
to which interest has been paid on, such
Note. Each payment of interest on a
Certificated Note will include interest
accrued to but excluding the Interest
Payment Date or the Maturity Date or, upon
earlier redemption, the Redemption Date,
as the case may be. Interest payable on
the Maturity Date or the Redemption Date
of a Certificated Note will be payable to
the person to whom the principal of such
Note is payable.
Record Dates. The record dates with respect to the Interest Payment
Dates shall be the Regular Record Dates.
Interest Payment Dates. Interest payments on Certificated Notes will be
made semi-annually on each Interest Payment Date and on the Maturity
Date or the Redemption Date.
Payments of Principal
and Interest: Interest will be payable to the person in
whose name a Certificated Note is
registered at the close of business on the
Regular Record Date next preceding an
Interest Payment Date. Unless other
arrangements are made acceptable to the
Company, all interest payments (excluding
interest payments made on the Maturity
Date or the Redemption Date) on a
Certificated Note will be made by check
mailed to the person entitled thereto as
provided above.
Bankers Trust will pay the principal amount of each Certificated Note on
the Maturity Date upon presentation of such Certificated Note to Bankers
Trust. Such payment, together with payment of interest due on the
Maturity Date, will be made from funds deposited with Bankers Trust by
the Company.
Bankers Trust will be responsible for withholding taxes on interest paid
on Certificated Notes as required by applicable law.
Within 10 days following each Regular Record Date, the Trustee will
inform the Company of the total amount of the interest payments to be
made by the Company on the next succeeding Interest Payment Date. The
Trustee will provide monthly to the Company a list of the principal and
interest to be paid on Certificated Notes maturing in the next
succeeding month.
Settlement: The settlement date with respect to any
offer to purchase Certificated Notes
accepted by the Company will be a date on
or before the fifth Business Day next
succeeding the date of acceptance unless
otherwise agreed by the purchaser, the
Trustee and the Company and shall be
specified upon acceptance of such offer.
The Company will instruct the Trustee to
effect delivery of each Certificated Note
no later than 1:00 P.M. (New York City
time) on the settlement date to the
Presenting Agent (as defined under
"Preparation of Pricing Supplement" in
Part III below) for delivery to the
purchaser.
Settlement Procedures: For each offer to purchase a Certificated
Note that is accepted by the Company, the
Presenting Agent will provide (unless
provided by the purchaser directly to the
Company) by telephone and facsimile
transmission or other mutually acceptable
means the following information to the
Company:
1. Name in which such Note is to be
registered (the "Registered Owner").
2. Address of the Registered Owner and,
if different, address for payment of
principal and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount.
5. Maturity Date.
6. Interest rate.
7. Interest Payment Dates.
8. Redemption provisions, if any.
9. Settlement date/Issue date.
10. Issue price.
11. Agent's commission, determined as
provided in Section 2(a) of the
Distribution Agreement.
12. Any other terms not inconsistent
with the provisions of the Mortgage.
The Presenting Agent will advise the Company of the foregoing
information (unless provided by the purchaser directly to the Company)
for each offer to purchase a Certificated Note solicited by such Agent
and accepted by the Company in time for the Trustee to prepare and
authenticate the required Certificated Note. Before accepting any offer
to purchase a Certificated Note to be settled in less than three
Business Days, the Company shall verify that the Trustee will have
adequate time to prepare and authenticate such Note. After receiving
from the Presenting Agent the details for each offer to purchase a
Certificated Note that has been accepted by the Company the Company
will, after recording the details and any necessary calculations,
provide appropriate documentation to the Trustee, including the
information provided by the Presenting Agent necessary for the
preparation and authentication of such Note.
Note Deliveries and
Cash Payment: Upon receipt of appropriate documentation
and instructions, the Company will cause
the Trustee to prepare and authenticate
the pre-printed 4-ply Certificated Note
packet containing the following documents
in forms approved by the Company, the
Presenting Agent and the Trustee:
1. Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on the settlement date
therefor. The Trustee (upon receipt of appropriate documentation from
the Company) will authenticate each Certificated Note and deliver it
(with the confirmation) to the Presenting Agent (and deliver the stubs
as indicated above), all in accordance with written or electronic
instructions (or oral instructions confirmed in writing (which may be
given by facsimile transmission) on the next Business Day) from the
Company. Delivery by the Trustee of each Certificated Note will be made
in accordance with said instructions against receipts therefor and in
connection with contemporaneous receipt by the Company from the
Presenting Agent on the settlement date in immediately available funds
of an amount equal to the issue price of such Note less the Presenting
Agent s commission.
Upon verification ("Verification") by the Presenting Agent that a
Certificated Note has been prepared and authenticated by the Trustee and
registered in the name of the purchaser in the proper principal amount
and other terms in accordance with the aforementioned confirmation,
payment will be made to the Company by the Presenting Agent the same day
as the Presenting Agent s receipt of the Certificated Note in
immediately available funds. Such payment shall be made by the
Presenting Agent only upon prior receipt by the Presenting Agent of
immediately available funds from or on behalf of the purchaser unless
the Presenting Agent decides, at its option, to advance its own funds
for such payment against subsequent receipt of funds from the purchaser.
Upon delivery of a Certificated Note to the Presenting Agent,
Verification by the Presenting Agent and the giving of instructions for
payment, the Presenting Agent shall promptly deliver such Note to the
purchaser.
In the event any Certificated Note is incorrectly prepared, the Trustee,
upon return of the incorrectly prepared Note for exchange, shall
promptly prepare and authenticate a replacement Certificated Note in
exchange for such incorrectly prepared Note.
Failure to Settle: If the Presenting Agent, at its own
option, has advanced its own funds for
payment against subsequent receipt of
funds from the purchaser, and if the
purchaser shall fail to make payment for
the Certificated Note on the settlement
date therefor, the Presenting Agent will
promptly notify the Trustee and the
Company by telephone, promptly confirmed
in writing (but no later than the next
Business Day). In such event, the Company
shall promptly provide the Trustee with
appropriate documentation and instructions
consistent with these procedures for the
return of the Certificated Note to the
Trustee and the Presenting Agent will
promptly return the Certificated Note to
the Trustee. Upon (i) confirmation from
the Trustee in writing (which may be given
by facsimile transmission) that the
Trustee has received the Certificated Note
and upon (ii) confirmation from the
Presenting Agent in writing (which may be
given by facsimile transmission) that the
Presenting Agent has not received payment
from the purchaser (the matters referred
to in clauses (i) and (ii) are referred to
hereinafter as the Confirmations ), the
Company will promptly pay to the
Presenting Agent an amount in immediately
available funds equal to the amount
previously paid by the Presenting Agent in
respect of such Note. Assuming receipt of
the Certificated Note by the Trustee and
of the Confirmations by the Company, such
payment will be made on the settlement
date, if reasonably practical, and in any
event not later than the Business Day
following the date of receipt of the
Certificated Note and Confirmations. If a
purchaser shall fail to make payment for
the Certificated Note for any reason other
than the failure of the Presenting Agent
to provide the necessary information to
the Company as described above for
settlement or to provide a confirmation to
the purchaser within a reasonable period
of time as described above or otherwise to
satisfy its obligation hereunder or in the
Distribution Agreement, and if the
Presenting Agent shall have otherwise
complied with its obligations hereunder
and in the Distribution Agreement, the
Company will reimburse the Presenting
Agent on an equitable basis for its loss
of the use of funds during the period when
they were credited to the account of the
Company.
Immediately upon receipt of the Certificated Note in respect of which
the failure occurred, the Trustee will void such Note, make appropriate
entries in its records and send such cancelled Note to the Company; and
upon such action, the Certificated Note will be deemed not to have been
issued, authenticated and delivered.
Part III: Administrative Procedures Applicable To Both Book-Entry Notes And
Certificated Notes
Calculation of
Interest: Interest on Notes (including interest for
partial periods) will be calculated on the
basis of a 360-day year of twelve
thirty-day months. (Examples of interest
calculations are as follows: The period
from August 15, 1993 to February 15, 1994
equals 6 months and 0 days, or 180 days;
the interest payable equals 180/360 times
the annual rate of interest times the
principal amount of the Note. The period
from September 17, 1993 to February 15,
1994 equals 4 months and 28 days, or 148
days; the interest payable equals 148/360
times the annual rate of interest times
the principal amount of the Note.)
Procedure for Rate
Setting and Posting: The Company and the Agents will discuss
from time to time the aggregate amount of,
the issuance price of, and the interest
rates to be borne by, Notes that may be
sold as a result of the solicitation of
offers by the Agents. If the Company
decides to set prices of, and rates borne
by, any Notes in respect of which the
Agents are to solicit offers (the setting
of such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates
previously posted by it, it will promptly
advise the Agents of the prices and rates
to be posted.
Acceptance of Offers: If the Company posts prices and rates as
provided above, each Agent as agent for
and on behalf of the Company, shall
promptly accept offers received by such
Agent to purchase Notes at the prices and
rates so posted, subject to (i) any
instructions from the Company received by
such Agent concerning the aggregate
principal amount of such Notes to be sold
at the prices and rates so posted or the
period during which such posted prices and
rates are to be in effect, (ii) any
instructions from the Company received by
such Agent changing or revoking any posted
prices and rates, (iii) compliance with
the securities laws of the United States
and all other jurisdictions and (iv) such
Agent s right to reject any such offer as
provided below.
If the Company does not post prices and rates and an Agent receives an
offer to purchase Notes or, if while posted prices and rates are in
effect, an Agent receives an offer to purchase Notes on terms other than
those posted by the Company, such Agent will promptly advise the Company
of each such offer other than offers rejected by such Agent as provided
below. The Company will have the sole right to accept any such offer to
purchase Notes. The Company may reject any such offer in whole or in
part.
Each Agent may, in its discretion reasonably exercised, reject any offer
to purchase Notes received by it in whole or in part.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company with
the approval of the Agent that presented
such offer (the "Presenting Agent"), will
prepare a Pricing Supplement reflecting
the terms of such Note and will arrange to
have ten copies filed with the Commission
in accordance with the applicable
paragraph of Rule 424 under the Act and
will supply at least 10 copies thereof (or
additional copies if requested) to the
Presenting Agent and one copy thereof to
the Trustee. The Presenting Agent will
cause a Prospectus and Pricing Supplement
to be delivered to the purchaser of such
Note.
In each instance that a Pricing Supplement is prepared, the Agents will
affix the Pricing Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements (other than those retained for files) will
be destroyed.
Suspension of Solicitation;
Amendment or Supplement
of Prospectus: The Company may instruct the Agents to
suspend at any time, for any period of
time or permanently, the solicitation of
offers to purchase Notes. Upon receipt of
such instructions from the Company, the
Agents will forthwith suspend solicitation
of offers to purchase Notes from the
Company until such time as the Company has
advised them that such solicitation may be
resumed.
If the Company decides to amend or supplement the Registration Statement
or the Prospectus (except for a supplement relating to an offering of
securities other than the Notes), it will promptly advise the Agents and
the Trustee and will furnish the Agents with the proposed amendment or
supplement in accordance with the terms of, and its obligations under,
the Distribution Agreement. The Company will, consistent with such
obligations, promptly advise each Agent and the Trustee whether orders
outstanding at the time each Agent suspends solicitation may be settled
and whether copies of such Prospectus as in effect at the time of the
suspension, together with the appropriate Pricing Supplement, may be
delivered in connection with the settlement of such orders. The Company
will have the sole responsibility for such decision and for any
arrangements that may be made in the event that the Company determines
that such orders may not be settled or that copies of such Prospectus
and Pricing Supplement may not be so delivered.
The Company will file with the Commission any supplement to the
Prospectus relating to the Notes, provide the Agents with copies of any
such supplement, and confirm to the Agents that such supplement has been
filed with the Commission pursuant to the applicable paragraph of Rule
424.
Confirmation: For each offer to purchase a Note
solicited by an Agent and accepted by or
on behalf of the Company, the Presenting
Agent will issue a confirmation to the
purchaser, with a copy to the Company,
setting forth the details set forth above
and delivery and payment instructions.
Paying Agent Not
to Risk Funds: Nothing herein shall be deemed to require
the Trustee to risk or expend its own
funds in connection with any payment to
the Company, DTC, the Agents or the
purchaser or a holder, it being understood
by all parties that payments made by the
Trustee to the Company, DTC, the Agents or
a holder shall be made only to the extent
that funds are provided to the Trustee for
such purpose.
Authenticity
of Signatures: The Agents will have no obligation or
liability to the Company or the Trustee in
respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on any
Note.
Payment of Expenses: Each Agent shall forward to the Company,
on a monthly basis, a statement of the
reasonable out-of-pocket expenses incurred
by such Agent during that month which are
reimbursable to it pursuant to the terms
of the Distribution Agreement. The
Company will remit payment to the Agents
currently on a monthly basis.
Delivery of
Prospectus: A copy of the Prospectus and Pricing
Supplement relating to a Note must
accompany or precede the earliest of any
written offer of such Note, confirmation
of the purchase of such Note or payment
for such Note by its purchaser. If notice
of a change in the terms of the Notes is
received by an Agent between the time an
order for a Note is placed and the time
written confirmation thereof is sent by
such Agent to a customer or his agent,
such confirmation shall be accompanied by
a Prospectus and Pricing Supplement
setting forth the terms in effect when the
order was placed. Subject to "Suspension
of Solicitation; Amendment or Supplement
of Prospectus" above, each Agent will
deliver a Prospectus and Pricing
Supplement as herein described with
respect to each Note sold by it.
Exhibit B
TERMS AGREEMENT
Central Illinois Light Company
300 Liberty Street
Peoria, Illinois 61602
Attention:
Subject in all respects to the terms and conditions of the Distribution
Agreement (the "Distribution Agreement"), dated December 1, 1994, among
National Westminster Bank Plc, New York Branch and PaineWebber Incorporated
and Central Illinois Light Company (the "Company"), the undersigned agrees to
purchase the following principal amount of the Company s First Mortgage
Bonds, Medium-Term Note A Series (the "Notes") (capitalized terms used herein
and not otherwise defined herein shall have the meaning ascribed to them in
the Distribution Agreement and the Exhibit A thereto):
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions, if any:
Other Terms:
Purchase Price: % of Principal Amount
[plus accrued interest from
_____________, 199__]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor
Method of Payment:
Modification, if
any, in the
requirements to
deliver the
documents specified
in Section 6(b) of
the Distribution
Agreement:
Period during which
First Mortgage
Bonds, including
Notes, may not be
sold pursuant to
Section 4(m) of the
Distribution
Agreement:
Book-Entry Notes
or Certificated
Notes:
This Agreement shall be governed by and construed in
accordance with the laws of New York.
[Insert name of Purchaser[s]]
By
----------------------------
Title:
Accepted: __________________ 19__
Central Illinois Light Company
By
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Title: