Exhibit 1.1
EXECUTION COPY
Union
Electric Company
Senior
Secured Debt Securities
Underwriting
Agreement
April 1, 2008
Goldman,
Sachs & Co.
J.P. Morgan Securities Inc.
As Representatives of the
several Underwriters
c/o
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities
Inc.
270 Park Avenue
New York, New York 10017
Ladies and
Gentlemen:
From time to time,
Union Electric Company, d/b/a AmerenUE, a Missouri corporation (the
“Company”), proposes to enter into one or more Pricing
Agreements (each, a “Pricing Agreement”) in the form of
Annex I hereto, with such additions and deletions as the parties
thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms
constituting the “Underwriters” with respect to such
Pricing Agreement and the securities specified therein) certain of
its senior secured debt securities (the “Securities”)
specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the “Designated
Securities”). The Designated Securities will be secured
by a series of the Company’s First Mortgage Bonds specified
in Schedule II to the applicable Pricing Agreement (with respect to
such Pricing Agreement, the “First Mortgage Bonds”), in
the same aggregate principal amount and having the same stated
interest rate and maturity date and other terms as the Designated
Securities to which they relate.
The terms and
rights of any particular issuance of Designated Securities
(including the First Mortgage Bonds securing such Designated
Securities) shall be as specified in the Pricing Agreement relating
thereto and in or pursuant to the Indenture dated as of
August 15, 2002 (as it may be supplemented or amended, the
“Indenture”) between the Company and The Bank of New
York, as trustee (the “Trustee”). The First
Mortgage Bonds will be issued under and pursuant to the
Company’s Indenture of Mortgage and Deed of Trust, dated
June 15, 1937, executed by the Company to The Bank of New
York, as successor trustee (the “Mortgage Trustee” and,
together with the Trustee, the “Trustees”), as
heretofore amended and supplemented by various supplemental
indentures, and as to be further amended and supplemented by a
supplemental
indenture relating to
the particular series of First Mortgage Bonds specified in Schedule
II to the applicable Pricing Agreement (with respect to such
Pricing Agreement, the “Supplemental Indenture”).
The term “Mortgage,” as used herein, shall be deemed to
refer to such Indenture of Mortgage and Deed of Trust as so amended
and supplemented.
1.
Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such
Securities in this Agreement or the Pricing Agreement relating
thereto will act as representatives (the
“Representatives”). The term
“Representatives” also refers to a single firm acting
as sole representative of the Underwriters or to an Underwriter or
Underwriters who act without any firm being designated as its or
their representatives. This Underwriting Agreement shall not
be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall
specify the title and aggregate principal amount of such Designated
Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such
Designated Securities, the series of First Mortgage Bonds securing
such Designated Securities, the Supplemental Indenture relating to
such First Mortgage Bonds, the Time of Sale (as defined herein)
with respect to such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the
Representatives of such Underwriters, if any, and the principal
amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set
forth in or pursuant to the Indenture and the registration
statement, preliminary prospectus and prospectus with respect
thereto) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be
in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device
designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this
Underwriting Agreement and each Pricing Agreement shall be several
and not joint.
2.
The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a)
The Company meets the requirements for the use of a registration
statement on Form S-3 under the Securities Act of 1933, as
amended (the “Act”), and a registration statement on
Form S-3 (File Nos. 333-128517 and 333-128517-01) in respect
of the Securities has been filed with the Securities and Exchange
Commission (the “Commission”); such registration
statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives
for each of the other Underwriters, and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus contained therein, have been declared
effective by the Commission in such form; if applicable, a
registration statement increasing the size of the offering (a
“Rule 462(b) Registration Statement”), has
been filed with the Commission pursuant to
Rule 462(b) under the Act, and such
Rule 462(b) Registration Statement became effective upon
filing; and no stop order suspending the effectiveness of such
registration statement, any
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post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose or pursuant to
Section 8A of the Act against the Company or relating to the
offering of the Designated Securities has been initiated or
threatened by the Commission (any preliminary prospectus included
in such registration statement before it became effective, any
preliminary prospectus included in such registration statement at
the time it became effective that omits Rule 430 Information
(as defined herein) or any preliminary prospectus supplement
(together with the accompanying prospectus) used in connection with
the offering and sale of Designated Securities that is deemed to be
part of and included in such registration statement pursuant to
Rule 430B(e) under the Act, is hereinafter called a
“Preliminary Prospectus”; the various parts of such
registration statement, any pre-effective amendment thereto, any
post-effective amendment thereto and the
Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement at the time
such part of such registration statement became effective but
excluding any Form T-1, each as amended at the time such part
of such registration statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, and including any information omitted
from such registration statement at the time such part of such
registration statement became effective but that is deemed to be
part of such registration statement pursuant to Rule 430A,
Rule 430B or Rule 430C under the Act at the time set
forth therein (“Rule 430 Information”) are
hereinafter collectively called the “Registration
Statement”; the prospectus and prospectus supplement in the
form first used (or made available upon request of purchasers
pursuant to Rule 173 under the Act) in connection with
confirmation of sales of the Designated Securities is hereinafter
called the “Prospectus”; any reference herein to the
Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of
such Prospectus, as the case may be; any reference to any amendment
or supplement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the effective date of the
Registration Statement or the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and the
rules and regulations of the Commission thereunder, and
incorporated by reference in such Registration Statement,
Preliminary Prospectus or Prospectus, as the case may be; at the
time set forth in the Pricing Agreement relating to the applicable
Designated Securities (the “Time of Sale”), the Company
had prepared the following information (collectively, the
“Time of Sale Information”): a Preliminary Prospectus
dated April 1, 2008, as amended or supplemented immediately
prior to the Time of Sale (including the documents incorporated
therein by reference as of the Time of Sale), as supplemented by
the final term sheet prepared and filed pursuant to
Section 5(a) hereof;
(b)
The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none
of such documents contained 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; and any
further documents so filed and incorporated by reference in the
Registration Statement, the
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Prospectus or the Time of Sale Information or
any further amendment or supplement thereto, when such documents
become effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(c)
The Registration Statement, the Preliminary Prospectus and the
Prospectus conform, and any further amendments or supplements to
the Registration Statement, the Preliminary Prospectus or the
Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), and the
rules and regulations of the Commission thereunder and do not
and will not, as of the latest date as of which any part of the
Registration Statement relating to the Designated Securities
became, or is deemed to have become, effective under the Act in
accordance with the rules and regulations of the Commission
thereunder as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to the Preliminary
Prospectus and the Prospectus and any amendment or supplement
thereto, respectively, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
an Underwriter of Designated Securities through the Representatives
expressly for use in the Registration Statement, the Preliminary
Prospectus or the Prospectus;
(d)
The financial statements of the Company filed as part of or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus fairly present the financial
condition of the Company as of the dates indicated and the results
of its operations and cash flows for the periods therein specified
and have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise indicated
therein;
(e)
The Company has not sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Time of Sale Information and the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Time of Sale Information
and the Prospectus; and, since the respective dates as of which
information is given in the Time of Sale Information, (i) the
Company has not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company, and
(ii) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company,
in each case, otherwise than as set forth or contemplated in the
Time of Sale Information;
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(f)
The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Time of
Sale Information and the Prospectus; the Company is duly qualified
to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
reasonably be expected to have a Material Adverse Effect (as
defined herein); and the Company has no significant subsidiaries
(within the meaning of Rule 1-02(w) of Regulation S-X
under the Act);
(g)
The Company has an authorized capitalization as set forth in the
Time of Sale Information and the Prospectus, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and
non-assessable;
(h)
The Securities have been duly authorized by the Company, and, when
Designated Securities are issued and delivered pursuant to this
Underwriting Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company
entitled to the security afforded by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company
and duly qualified under the Trust Indenture Act and, at the Time
of Delivery (as defined in Section 4 hereof), the Indenture
will be duly executed and delivered by the Company and will be a
valid and legally binding instrument, enforceable against the
Company in accordance with its terms, except as may be limited by
(i) bankruptcy, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors’ rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law)
and (iii) requirements of reasonableness, good faith and fair
dealing (collectively, the “Exceptions”); and the
Indenture conforms, and the Designated Securities will conform, to
the descriptions thereof contained in the Time of Sale Information
and the Prospectus;
(i)
The First Mortgage Bonds have been duly authorized by the Company,
and, when the First Mortgage Bonds have been issued and delivered
pursuant to the Mortgage and the Indenture, such First Mortgage
Bonds will have been duly executed, authenticated, issued and
delivered, will constitute valid and legally binding obligations of
the Company entitled to the security afforded by the Mortgage,
which will be substantially in the form filed as an exhibit to the
Registration Statement, and will be owned and held by the Trustee,
in trust, for the benefit of the holders of the related Designated
Securities; the Mortgage has been duly authorized by the Company
and duly qualified under the Trust Indenture Act and, at the Time
of Delivery for the related Designated Securities, the Mortgage (as
supplemented and amended by the Supplemental Indenture relating to
the First Mortgage Bonds) will be duly executed and delivered by
the Company and will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject to the laws of the States of Missouri, Illinois and
Iowa affecting the remedies for the enforcement of the security
provided for therein and except as may be limited by the
Exceptions; and the Mortgage conforms, and the First Mortgage Bonds
will conform, to the descriptions thereof contained in the Time of
Sale Information and the Prospectus;
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(j)
Substantially all of the permanent, fixed properties of the Company
are owned in fee simple or are held under valid leases, in each
case subject only to the liens of current mortgages (including the
lien of the Mortgage) and “permitted liens” and
“judgment liens” as defined in the Mortgage; such minor
imperfections of title and encumbrances, if any, which are not
substantial in amount, do not materially detract from the value or
marketability of the properties subject thereto and do not
materially impair the title of the Company to its properties or its
right to use its properties in connection with its business as
presently conducted; and, based on the Company’s balance
sheet as of December 31, 2007, 8.14% of the Company’s
physical property and plant was located in the States of Illinois
and Iowa;
(k)
This Underwriting Agreement has been, and the Pricing Agreement
applicable to any Designated Securities, at the date thereof, will
be, duly authorized, executed and delivered by the
Company;
(l)
PricewaterhouseCoopers LLP, who has audited certain financial
statements of the Company incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, is an independent registered public accounting firm
with respect to the Company as required by the Act and the
rules and regulations of the Commission thereunder and the
Public Company Accounting Oversight Board (United
States);
(m)
The issue of the First Mortgage Bonds and the issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture, the First Mortgage
Bonds, the Mortgage, this Underwriting Agreement and any Pricing
Agreement, and the consummation of the transactions herein and
therein contemplated, will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Restated Articles
of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
properties; the Missouri Public Service Commission has issued, or
as of the date of the Pricing Agreement applicable to any
Designated Securities, will have issued, its final orders (the
“MPSC Orders”) authorizing the issuance and sale of the
Designated Securities by the Company and the issuance of the First
Mortgage Bonds by the Company; the MPSC Orders are, or as of the
date of the Pricing Agreement applicable to any Designated
Securities, will be, in full force and effect and not subject to
appeal or rehearing and is, or as of the date of the Pricing
Agreement applicable to any Designated Securities, will be,
sufficient to authorize the transactions contemplated by this
Underwriting Agreement; the Company will apply the net proceeds from
the issuance and sale of the Securities, as set forth under
“Use of Proceeds” in the Time of Sale Information and
Prospectus, in a manner consistent with the MPSC Orders;
the Designated Securities
and the First Mortgage Bonds issued pursuant to the MPSC Orders
shall be valid and binding in accordance with their respective
terms and the terms and limitations specified in the MPSC Orders;
and no other consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or
body, including, without limitation, any regulatory body of the
State of Iowa and the State of Illinois, is required for the issue
and sale of the Securities and the issue of the First Mortgage
Bonds by the Company, or the consummation by the Company of the
transactions contemplated
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by
this Underwriting Agreement or any Pricing Agreement or the
Indenture or the Mortgage, except such as have been, or will have
been prior to the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters;
(n)
The statements set forth in the Preliminary Prospectus dated
April 1, 2008 (together with the information set forth in the
Time of Sale Information) and the Prospectus under the captions
“Description of Senior Secured Notes,”
“Description of Senior Secured Debt Securities” and
“Description of First Mortgage Bonds”, insofar as they
purport to constitute a summary of the terms of the Securities, the
Indenture, the Mortgage and the First Mortgage Bonds, and under the
captions “Plan of Distribution” and
“Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(o)
The Company is not (i) in violation of its Restated Articles
of Incorporation or By-laws, (ii) to the best knowledge of the
Company, after due inquiry, in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company, the violation of which would reasonably be expected
to have a material adverse effect on the general affairs,
management, financial position, stockholders’ equity or
results of operations of the Company (a “Material Adverse
Effect”), or of any decree of any court or governmental
agency or body having jurisdiction over the Company, or
(iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound, which default would reasonably
be expected to have a Material Adverse Effect;
(p)
Other than as set forth in the Time of Sale Information and the
Prospectus, there are no legal or governmental proceedings pending
to which the Company is a party or of which any property of the
Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a Material
Adverse Effect; and, to the Company’s knowledge, no such
proceedings are threatened by governmental authorities or
others;
(q)
The Company is not and, after giving effect to the offering and
sale of the Designated Securities and the application of the
proceeds thereof, will not be an “investment company,”
or an entity “controlled” by an investment company, as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(r)
Except as set forth in the Time of Sale Information and the
Prospectus, the Company (i) is in compliance with any and all
applicable federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) has received all
permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and
(iii) is in compliance with all terms and conditions of any
such permit, license or approval, except as to clauses (i) and
(iii) where such non-compliance with Environmental Laws or
failure to receive or comply with the terms and conditions of
required
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permits, licenses or other approvals would not,
singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(s)
The Time of Sale Information, at the Time of Sale did not, and at
the Time of Delivery will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in such Time of Sale Information. No
statement of material fact that will be included in the Prospectus
has been omitted from the Time of Sale Information and no statement
of material fact included in the Time of Sale Information that is
required to be included in the Prospectus will be omitted
therefrom;
(t)
Other than the Registration Statement, any Preliminary Prospectus
and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not made, used, prepared, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Designated Securities (each
such communication by the Company or its agents and representatives
(other than a communication referred to in clause (i) below),
an “Issuer Free Writing Prospectus”) other than
(i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Act or Rule 134 under the
Act or (ii) the documents listed on Annex III hereto and other
written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus
complied in all material respects with the Act, has been filed in
accordance with the Act (to the extent required thereby) and, when
taken together with any Preliminary Prospectus filed prior to the
first use of such Issuer Free Writing Prospectus, did not, and at
the Time of Delivery will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in any
Issuer Free Writing Prospectus. Each Issuer Free Writing
Prospectus listed on Part B of Annex III hereto does not
conflict with the information contained in the Registration
Statement, the Time of Sale Information or the
Prospectus;
(u)
The Company is not an ineligible issuer and is a well-known
seasoned issuer, in each case as defined under the Act, in each
case at the times specified in the Act in connection with the
offering of the Designated Securities;
(v)
The Company maintains a system of internal control over financial
reporting (as such term is defined in
Rule 13a-15(f) under the Exchange Act) that complies with
the requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision to provide reasonable assurance
regarding the reliability of financial reporting and the
preparation of financial
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statements for external purposes in accordance
with generally accepted accounting principles. Except as
disclosed in the Time of Sale Information and the Prospectus, the
Company’s internal control over financial reporting as of
December 31, 2007 was effective and the Company is not aware
of any material weaknesses in its internal control over financial
reporting;
(w)
Except as disclosed in the Time of Sale Information and the
Prospectus, since the date of the latest audited financial
statements included or incorporated by reference in the Time of
Sale Information and the Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting; and
(x)
The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that
comply with the requirements of the Exchange Act; such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company is made known to the
Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure
controls and procedures as of December 31, 2007 were
effective.
3.
Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of
the release of such Designated Securities, the several Underwriters
propose to offer such Designated Securities for sale upon the terms
and conditions set forth in the Time of Sale Information and the
Prospectus.
4.
Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and
registered in such names as the Representatives may request, shall
be delivered by or on behalf of the Company to the Representatives
for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to the account specified by
the Company to the Representatives at least forty-eight hours in
advance or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such
time and date being herein called the “Time of
Delivery” for such Designated Securities.
5.
The Company agrees with each of the Underwriters of any Designated
Securities:
(a)
To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) and
Rule 430A, Rule 430B or Rule 430C under the Act not
later than the Commission’s close of business on the second
business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by
Rule 424(b); to prepare a final term sheet, containing solely
a description of the Designated Securities, in a form approved by
the Representatives and to file such final term sheet pursuant to
Rule 433(d) under the Act within the time required by
such Rule; to file all other material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under
the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus after the date of the
Pricing Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Designated Securities which shall
be disapproved by the Representatives for such
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Designated Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement or any amendment or supplement to any
Issuer Free Writing Prospectus after such Time of Delivery and
furnish the Representatives with copies thereof; before preparing,
using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus, to furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus for review and not to prepare, use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus
disapproved by the Representatives; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for
so long as the delivery of a prospectus is required (but for
Rule 172 under the Act) in connection with the offering or
sale of the Designated Securities, and during such same period to
advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus
relating to the Designated Securities, of the suspension of the
qualification of such Designated Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose or pursuant to Section 8A of
the Act against the Company or relating to the offering of the
Designated Securities, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any such stop order or of any such order preventing or
suspending the use of any prospectus relating to the Designated
Securities or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such
order;
(b)
Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Designated
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of such Designated Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c)
Prior to 10:00 a.m., New York City time, on the New York
Business Day (as defined in Section 15 hereof) next succeeding
the date of this Underwriting Agreement and from time to time,
including the New York Business Day next succeeding the date of any
Pricing Agreement, to furnish the Underwriters with written and
electronic copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered), as amended or
supplemented, in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time (but for Rule 172 under the
Act) in connection with the offering or sale of the Designated
Securities and if at such time any event shall have occurred as a
result of which the Prospectus, the Time of Sale Information or any
Issuer Free Writing Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such Prospectus, such Time of Sale Information or such
Issuer Free Writing Prospectus as then amended or supplemented is
delivered, not misleading, or, if for any other reason it shall
be
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necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such
document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and
electronic copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, or, if at any time prior to the Time of Delivery
(i) any event shall occur or condition shall exist as a result
of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare
and, subject to Section 5(a) above, file with the
Commission (to the extent required) and furnish to the Underwriters
and to such dealers as the Representatives may designate, such
amendments or supplements to the Time of Sale Information as may be
necessary so that the statements in the Time of Sale Information as
so amended or supplemented will not, in the light of the
circumstances, be misleading or so that the Time of Sale
Information will comply with law;
(d)
To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earning statement of the
Company (which need not be audited) complying with
Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
(e)
During the period beginning from the date of the Pricing Agreement
for any Designated Securities and continuing to and including the
later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the
Representatives, and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f)
If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by
10:00 P.M., Washington, D.C. time, on the date of this
Underwriting Agreement or the date of the applicable Pricing
Agreement, as applicable, and the Company shall at the time of
filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to
Rule 111(b) under the Act;
(g)
The Company will apply the net proceeds from the sale of any
Designated Securities for the purposes set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus; and
(h)
The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with
Rule 433 under the Act.
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6.
The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the
Company’s counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses
in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus
and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers;
(ii) the cost of printing or producing any Agreement among
Underwriters, this Underwriting Agreement, any Pricing Agreement,
the Indenture, the Mortgage, any blue sky surveys, closing
documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale
under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements
of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky surveys;
(iv) any fees charged by securities rating services for rating
the Securities; (v) any filing fees incident to, and the fees
and disbursements of counsel for the Underwriters in connection
with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities and the First
Mortgage Bonds; (vii) the fees and expenses of the Trustees
and any agent of the Trustees and the fees and disbursements of
counsel for the Trustees in connection with the Indenture, the
Securities, the Mortgage and the First Mortgage Bonds; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 6. It is
understood, however, that, except as provided in this
Section 6, and Sections 9 and 12 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of
their counsel and transfer taxes on resale of any of the Securities
by them.
7.
Each Underwriter hereby represents and agrees that, except for one
or more term sheets containing the information set forth in
Schedule III to the applicable Pricing Agreement, it has not and
will not use, authorize use of, refer to, or participate in the use
of, any “free writing prospectus”, as defined in
Rule 405 under the Act (which term includes use of any written
information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any
press release issued by the Company) other than (i) one or
more term sheets relating to the Designated Securities which are
not Issuer Free Writing Prospectuses and which contain preliminary
terms of the Designated Securities and related customary
information not inconsistent with the final term sheet filed by the
Company pursuant to Section 5(a) hereof,
(ii) a free writing prospectus that contains no “issuer
information” (as defined in Rule 433(h)(2) under
the Act) that was not included (including through incorporation by
reference) in the Preliminary Prospectus or a previously filed
Issuer Free Writing Prospectus, (iii) any Bloomberg L.P. or
other electronic communication regarding comparable bond prices,
(iv) any Issuer Free Writing Prospectus listed on Annex III
hereto or prepared pursuant to Section 2(t) or
Section 5(a) hereof, or (v) any free writing
prospectus prepared by such Underwriter and approved by the Company
in advance in writing.
8.
The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the
condition that all representations and warranties and other
statements of the Company in or incorporated by reference in the
Pricing Agreement relating to such
12
Designated Securities are, at and as of the
Time of Sale and the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall
have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a)
The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) and Rule 430A, Rule 430B or
Rule 430C within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; each Issuer Free
Writing Prospectus shall have been timely filed with the Commission
under the Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Act); if the Company
has elected to rely upon Rule 462(b), t
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