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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): July 22, 1999
DYNEGY INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-11156 94-3248415
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification Number)
1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 507-6400
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ITEM 5. OTHER EVENTS
On July 22, 1999, Dynegy Inc., a Delaware corporation (the "Company"),
entered into an Underwriting Agreement, attached as Exhibit 1.1 hereto, with the
Underwriters named therein with respect to the issue and sale by the Company of
$200,000,000 aggregate principal amount of 6.875% Senior Notes due July 15, 2002
and $200,000,000 aggregate principal amount of 7.450% Senior Notes due July 15,
2006 (collectively, the "Senior Notes") in an underwritten public offering. The
Senior Notes were registered under the Securities Act of 1933, as amended,
pursuant to the Company's shelf registration statement on Form S-3 (File No.
333-60253). The closing respecting the Senior Notes occurred on July 27, 1999.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c)
Exhibit No. Description of Exhibit
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1.1 Underwriting Agreement dated July 22, 1999, among the Company and
the Underwriters named therein relating to the sale of the Senior
Notes.
4.1 Form of 6.875% Senior Note due 2002.
4.2 Form of 7.450% Senior Note due 2006.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: July 30, 1999
DYNEGY INC.
By: /s/ Kenneth E. Randolph
--------------------------------
Name: Kenneth E. Randolph
Title: Senior Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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1.1 Underwriting Agreement dated July 22, 1999, among the Company and
the Underwriters named therein relating to the sale of the Senior
Notes.
4.1 Form of 6.875% Senior Note due 2002.
4.2 Form of 7.450% Senior Note due 2006.
4
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Exhibit 1.1
$400,000,000
DYNEGY INC.
$200,000,000 6.875% SENIOR NOTES DUE 2002
$200,000,000 7.450% SENIOR NOTES DUE 2006
UNDERWRITING AGREEMENT
July 22, 1999
LEHMAN BROTHERS INC
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
C/O LEHMAN BROTHERS INC
Three Wold Financial Center
New York, New York 10285
Dear Sirs:
Dynegy Inc., a Delaware corporation (the "Company"), proposes to issue and
sell (a) $200,000,000 aggregate principal amount of its 6.875% Senior Notes due
2002 (the "6.875% Notes") and (b) $200,000,000 aggregate principal amount of its
7.450% Senior Notes due 2006 (the "7.450% Notes"and collectively with the 6.875%
Notes, the "Notes") to you (the "Underwriters"). The Notes will be issued
pursuant to an Indenture dated as of September 26, 1996 and amended and restated
as of March 23, 1998 (the "Indenture") between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee"). This agreement (this
"Agreement") is to confirm the agreement concerning the purchase of the Notes
from the Company by the Underwriters.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-60253) with respect
to the Notes (i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder, (ii) has been filed with
the Commission under the Securities Act and (iii) either has become effective
under the Securities Act and is not proposed to be amended or is proposed to be
amended by amendment or post-effective amendment. If the Company does not
propose to amend such Registration Statement and if any post-effective amendment
to such registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment has
been declared effective by the Commission. Copies of such registration statement
as amended to date have been delivered by the Company to you. For purposes of
this Agreement, "Effective
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Time" means the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was declared effective
by the Commission; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such registration
statement, or amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company with
the consent of the Underwriters pursuant to Rule 424(a) of the Rules and
Regulations prior to the filing of the Prospectus; "Registration Statement"
means such registration statement, as amended at the Effective Time, including
any documents incorporated by reference therein and, if the Effective Date is on
or before the date of this Agreement, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)") in accordance with Section 4(a) hereof and deemed to
be a part thereof as of the Effective Time pursuant to paragraph (b) of Rule
430A of the Rules and Regulations; "Prospectus" means the form of prospectus
relating to the Notes (including the prospectus supplement), as first used to
confirm sales of the Notes; and "described in the Prospectus" or "disclosed in
the Prospectus" means described or disclosed, as applicable, in the Prospectus
or any document incorporated by reference therein. If it is contemplated, at the
time this Agreement is executed, that a registration statement will be filed
pursuant to Rule 462(b) under the Securities Act before the offering of the
Notes may commence, the term "Registration Statement" as used in this Agreement
includes such registration statement, as the same may be amended from time to
time. Reference made herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents incorporated by reference
therein as of the date of such Preliminary Prospectus or Prospectus, as the case
may be, and any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of such Preliminary Prospectus or Prospectus, as
the case may be, and incorporated by reference in such Preliminary Prospectus or
Prospectus. For purposes of this Section l, all references to the Registration
Statement, any post-effective amendments thereto and the Prospectus shall be
deemed to include, without limitation, any electronically transmitted copies
thereof, including, without limitation, any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis, and Retrieval system
("EDGAR"). The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus.
(b) If the Effective Date is on or before the date of this Agreement, (i)
the Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
when they become effective or are first used to confirm sales of the Notes, as
the case may be, conform to the requirements of the Securities Act and the Rules
and Regulations, (ii) the Registration Statement and any amendment thereto does
not and will not, as of the applicable effective date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus and any amendment or supplement thereto will not, as of the
first date of its use to confirm sales of the Notes, 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, in light of
the circumstances under which they were made, not misleading. If the Effective
Date is after the date of this Agreement, (i) the Registration Statement and the
Prospectus and any further amendments or supplements thereto will, when they
become effective or are first used to confirm sales of the Notes, as the case
may be, conform to the requirements of the Securities Act and the Rules and
Regulations, (ii) the Registration Statement and any amendment thereto will not,
as of the applicable effective date, contain any untrue statement of a material
fact or omit to state any
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material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) the Prospectus and any amendment or supplement
thereto will not, as of the date on which the Prospectus and any amendment or
supplement thereto is first used to confirm sales of the Notes, 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, in
light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company makes no representation or warranty
as to information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon, and in conformity with written information
furnished to the Company by you, expressly for inclusion therein. There is no
contract or document required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement or to
a document incorporated by reference into the Registration Statement which is
not described or filed as required.
(c) Arthur Andersen LLP, whose report is included or incorporated by
reference in the Prospectus, are independent certified public accountants with
respect to the Company and its Subsidiaries (as defined in Section 13 hereof),
as required by the Securities Act and the Rules and Regulations. The financial
statements (including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the Prospectus present fairly the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated and conform in all material respects with the
Rules and Regulations, except as otherwise noted therein; and the supporting
schedules included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein.
(d) Each of the Company and its Significant Subsidiaries (as defined in
Exhibit A hereto) has been duly organized or formed and is validly existing in
good standing under the laws of the jurisdiction of its organization or
formation, with full power and authority to own, lease and operate its
properties and conduct its business and to enter into and perform its
obligations under this Agreement and the Indenture; and each of the Company and
its Subsidiaries is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the business conducted by it or the
location of the properties owned, leased or operated by it make such
qualification necessary, except where the failure to so qualify would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole.
(e) All of the outstanding shares of capital stock of each Significant
Subsidiary of the Company that is a corporation have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in the
Prospectus, all of the outstanding shares of capital stock or partnership
interests of each Significant Subsidiary of the Company are owned directly or
indirectly by the Company, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer, preemptive rights or any
other claim of any third party, except such as are described in the Prospectus.
(f) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any material adverse change in, or
adverse development which, individually or in the aggregate, materially affects
or may materially affect, the condition (financial
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or other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole from the respective dates as of which information
is given in the Prospectus.
(g) Neither (i) the execution or delivery hereof by the Company, (ii) the
consummation of the transactions contemplated hereby, (iii) the execution and
delivery of the Indenture and the Notes by the Company nor (iv) compliance by
the Company with all of the provisions of this Agreement, the Indenture, and the
Notes, will result in a breach or violation of, or constitute a default under,
the certificate of incorporation, by-laws, partnership agreement or other
governing documents of the Company or any of its Subsidiaries, or any agreement,
indenture or other instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, or to which any of their properties is
subject, nor will any such action or the performance by the Company of its
obligations hereunder violate any law, rule, administrative regulation or decree
of any court, or any governmental agency or body having jurisdiction over the
Company, its Subsidiaries or any of their respective properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries. Except for permits,
consents, approvals and similar authorizations required under the securities or
"Blue Sky" laws of certain jurisdictions, and except for such permits, consents,
approvals and authorizations which have been obtained, no permit, consent,
approval, authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of the
transactions contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and binding agreement of the Company, and is
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(i) Neither the Company nor any of its Subsidiaries (i) is in violation of
its certificate of incorporation or by-laws or other governing documents, (ii)
is in default and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any agreement, indenture or other
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, except for any such defaults that would not, individually
or in the aggregate, have a material adverse effect on the condition (financial
or other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole, or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property may be
subject, except for any such violations that would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or other),
results of operations, business or prospects of the Company and its Subsidiaries
taken as a whole.
(j) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture (i) has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), (ii) complies as to form with the
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requirements of the Trust Indenture Act and (iii) conforms to the description
thereof in the Registration Statement and the Prospectus.
(k) The Notes have been duly and validly authorized by the Company for
issuance and sale to the Underwriters pursuant to this Agreement and, when
executed by the Company and authenticated by the Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
free of any preemptive or similar rights to subscribe to or purchase the same
arising by operation of law or under the charter or by-laws of the Company or
otherwise, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance with
their terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
and the Notes conform, or will conform, to the description thereof in the
Registration Statement and the Prospectus. Neither the filing of the
Registration Statement nor the offering or sale of the Notes as contemplated by
this Agreement gives rise to any rights, other than those which have been duly
waived or satisfied, for or relating to the registration of any securities of
the Company. The capitalization of the Company as of the date of the most recent
balance sheet included in the Prospectus is as set forth in the Prospectus. The
Company has all requisite corporate power and authority to issue, sell, and
deliver the Notes in accordance with and upon the terms and conditions set forth
in this Agreement and in the Registration Statement and Prospectus. All
corporate action required to be taken by the Company for the authorization,
issuance, sale and delivery of the Notes to be sold by the Company hereunder has
been validly and sufficiently taken.
(l) Each contract, agreement or arrangement to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any of its Subsidiaries is
subject, which is material to the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole, has been duly and validly authorized, executed and delivered by the
Company or its Subsidiary, as applicable; none of such contracts, agreements or
arrangements has been assigned by the Company or any of its Subsidiaries to any
non-affiliated party other than in the ordinary course of business, and the
Company knows of no present condition or fact which would prevent compliance by
the Company or any of its Subsidiaries or any other party thereto with the terms
of any such contract, agreement or arrangement in accordance with its terms in
all material respects, except for any such failures to comply that would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole; neither the Company nor any
of its Subsidiaries has any present intention to exercise any right that it may
have to cancel any such contract, agreement or arrangement or otherwise to
terminate its rights and obligations thereunder, and none of them has any
knowledge that any other party to any such contract, agreement or arrangement
has any intention not to render full performance in all material respects as
contemplated by the terms thereof, except for any such cancellations,
terminations or failures to perform that would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole.
(m) There is no litigation or governmental proceeding to which the Company
or any of its Subsidiaries is a party or to which any property of the Company or
any of its Subsidiaries
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is subject or which is pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries that could reasonably be expected
to, individually or in the aggregate, result in a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole or which is required to be
disclosed in the Prospectus and is not disclosed.
(n) Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may be
subject which violation could reasonably be expected to, individually or in the
aggregate with all such violations, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole.
(o) The documents incorporated by reference into each Preliminary
Prospectus and the Prospectus, at the time they were or are filed with the
Commission, conform or will conform, as the case may be, with the requirements
of the Securities Act and the Rules and Regulations and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and did not or will
not, as the case may be, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(p) Each of the Company and its Subsidiaries owns or possesses, and is
operating in compliance with, all approvals, licenses, permits, certificates,
franchises, easements, consents, orders and other governmental authorizations
and rights necessary to own or lease its properties and conduct its business
(collectively, "Approvals"), except such Approvals as to which the failure to
own, possess or operate in compliance with would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole ("Material Approvals"); all such Material
Approvals are valid and in full force and effect; and the Company has no reason
to believe that any governmental agency or body is considering limiting,
suspending or revoking any such Material Approval.
(q) From the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither the Company nor any of its Subsidiaries has (i) issued,
granted, repurchased, reclassified, or exchanged any of their respective
securities (other than in respect of intercompany transactions or pursuant to
employee stock options, the Company's director and key employee stock purchase
plan, the Company's director compensation plan or the Company's savings plan),
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any material transaction not in the ordinary course
of business or (iv) entered into any material transaction with an affiliate of
the Company, other than a Subsidiary; and the Company has not declared or paid
any dividend on its capital stock other than the regular quarterly dividend on
its Common Stock.
(r) There has been no storage, disposal, generation, transportation,
handling or treatment of hazardous substances or hazardous wastes by the Company
or any of its Subsidiaries (or to the knowledge of the Company, any of its
predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or any of its Subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would
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require remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial action
which would not, individually or in the aggregate with all such violations and
remedial actions, result in a material adverse effect on the condition
(financial or other), results of operations, business or prospects of the
Company and its Subsidiaries taken as a whole; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
onto such property or into the environment surrounding such property of any
hazardous wastes or hazardous substances due to or caused by the Company or any
of its Subsidiaries, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not, individually or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases result in a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole; none of the facilities of the
Company or any of its Subsidiaries is a solid waste facility for purposes of any
applicable environmental law; and the terms "hazardous substances" and
"hazardous wastes" shall have the meanings specified in any applicable local,
state and federal laws or regulations with respect to environmental protection.
(s) The Company has not taken and shall not take, directly or indirectly,
any action designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of the Notes to facilitate the sale or resale of the Notes.
(t) The Notes will be pari passu with all existing and future unsecured
and unsubordinated indebtedness of the Company.
(u) The conditions for the Company's use of Form S-3 for filing the
Registration Statement, as set out in the general instructions to such form,
have been satisfied.
(v) Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"), or is subject to regulation as an "investment company" under
the 1940 Act.
2. Purchase of the Notes by the Underwriters. Subject to the terms and
conditions and upon the basis of the representations and warranties herein set
forth, the Company agrees to issue and sell to the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
(a) at a price equal to 99.440% of the principal amount thereof, plus accrued
interest, if any, from July 27, 1999, the principal amount of 6.875% Notes set
forth opposite such Underwriter's name in Schedule I hereto and (b) at a price
equal to 99.304% of the principal amount thereof, plus accrued interest, if any,
from July 27, 1999, the principal amount of 7.450% Notes set forth opposite such
Underwriter's name in Schedule I hereto. The Underwriters propose to offer the
Notes to the public as set forth in the Prospectus.
3. Delivery of and Payment for Notes. Delivery of the Notes shall be made
at such place or places as mutually may be agreed upon by the Company and the
Underwriters, at 10:00 A.M., New York City time, on July 27, 1999 or on such
later date not more than three Business Days after the foregoing date as shall
be determined by you and the Company (the "Closing Date").
Delivery of the Notes shall be made to you by or on behalf of the
Company against payment of the purchase price therefor by wire transfer of
immediately available funds. Delivery of
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the Notes shall be made through the facilities of The Depository Trust Company
unless you shall otherwise instruct. Time shall be of the essence, and delivery
of the Notes at the time and place specified in this Agreement is a further
condition to the obligations of each Underwriter.
4. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) If the Effective Date is on or before the date of this Agreement, the
Company shall comply with the provisions of and make all requisite filings with
the Commission pursuant to Rule 424(b) not later than the Commission's close of
business on the second Business Day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) of the Rules and Regulations. The Company shall advise you, promptly
after it receives notice thereof, of the time when, if the Effective Date is on
or before the date of this Agreement, 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. The Company shall notify
you promptly of any request by the Commission for any amendment of or supplement
to the Registration Statement or the Prospectus or for additional information;
the Company shall prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration Statement or the
Prospectus which, in your opinion, may be necessary or advisable in connection
with the distribution of the Notes; and the Company shall not file any amendment
or supplement to the Registration Statement or the Prospectus or file any
document under the Exchange Act before the termination of the offering of the
Notes by the Underwriters if such document would be deemed to be incorporated by
reference into the Prospectus, which filing is not consented to by you after
reasonable notice thereof, such consent not to be unreasonably withheld or
delayed. The Company shall advise you promptly of the issuance by the Commission
or any State or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement, suspending or
preventing the use of any Preliminary Prospectus or the Prospectus or suspending
the qualification of the Notes for offering or sale in any jurisdiction, or of
the institution of any proceedings for any such purpose; and the Company shall
use its best efforts to prevent the issuance of any stop order or other such
order and, should a stop order or other such order be issued, to obtain as soon
as possible the lifting thereof.
(b) The Company shall furnish to each of you and to counsel for the
Underwriters such number of conformed copies of the Registration Statement, as
originally filed and each amendment thereto (excluding exhibits other than this
Agreement), the Prospectus and all amendments and supplements to any of such
documents (including any document filed under the Exchange Act and deemed to be
incorporated by reference in the Preliminary Prospectus or Prospectus), in each
case as soon as available and in such quantities as you may from time to time
reasonably request.
(c) Within the time during which the Prospectus relating to the Notes is
required to be delivered under the Securities Act, the Company shall comply with
all requirements imposed upon it by the Securities Act, as now and hereafter
amended, and by the Rules and Regulations, as from time to time in force, so far
as is necessary to permit the continuance of sales of or dealings in the Notes
as contemplated by the provisions hereof and by the Prospectus. If during such
period any event occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during such period it is
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necessary to amend the Registration Statement or supplement the Prospectus or
file any document to comply with the Securities Act, the Company shall promptly
notify you and shall, subject to Section 4(a) above, amend the Registration
Statement or supplement the Prospectus or file any document (at the expense of
the Company) so as to correct such statement or omission or to effect such
compliance.
(d) The Company shall take or cause to be taken all necessary action and
furnish to whomever you may direct such information as may be required in
qualifying the Notes for offering and sale under the laws of such jurisdictions
as you shall designate, and to continue such qualifications in effect for as
long as may be necessary for the distribution of the Notes; except that in no
event shall the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction where it is not currently so subject.
(e) As soon as practicable, the Company shall make generally available to
its security holders (and shall deliver to you) an earnings statement satisfying
the requirements of Section 11(a) of the Securities Act and Rule 158 of the
Rules and Regulations.
(f) Whether or not this Agreement becomes effective or is terminated or
the sale of the Notes to the Underwriters is consummated, the Company shall pay
or cause to be paid (A) all fees and expenses (including, without limitation,
all registration and filing fees and fees and expenses of the Company's
accountants but excluding fees and expenses of counsel for the Underwriters)
incurred in connection with the preparation, printing, filing, delivery and
shipping of the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus,
the Prospectus, the Indenture, the Statement of Eligibility and Qualification of
the Trustee on Form T-1 filed with the Commission (the "Form T-1") and any
amendments or supplements of the foregoing and any documents incorporated by
reference into any of the foregoing and the copying, delivery and shipping of
this Agreement and Blue Sky Memoranda, (B) all fees and expenses incurred in
connection with the preparation and delivery to the Underwriters of the Notes
(including the cost of printing the Notes), (C) all filing fees and fees and
disbursements of counsel to the Underwriters incurred in connection with the
qualification of the Notes under state securities or Blue Sky laws as provided
in Section 4(d) hereof, (D) any fees required to be paid to rating agencies
incurred in connection with the rating of the Notes, (E) the fees, costs and
charges of the Trustee, including the fees and disbursements of counsel for the
Trustee, and (F) all other costs and expenses incident to the performance of its
obligations hereunder for which provision is not otherwise made in this Section.
It is understood, however, that, except as provided in this Section, Section 6
and Section 8 hereof, the Underwriters shall pay all of their own costs and
expenses, including the fees of their counsel and any advertising expenses
incurred in connection with any offers they may make. If the sale of the Notes
provided for herein is not consummated by reason of acts of the Company or
changes in circumstances of the Company pursuant to Section 8 hereof which
prevent this Agreement from becoming effective, or by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed or because any other condition of the Underwriters'
obligations hereunder is not fulfilled or if the Underwriters shall decline to
purchase the Notes for any reason permitted under this Agreement other than by
reason of a default by any of the Underwriters pursuant to Section 7, the
Company shall reimburse the several Underwriters for all reasonable out-of-
pocket disbursements (including fees and disbursements of counsel) incurred by
the Underwriters in connection with any investigation or
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preparation made by them in respect of the marketing of the Notes or in
contemplation of the performance by them of their obligations hereunder.
(g) During the period of one year from the Closing Date, the Company shall
furnish to the Underwriters, copies of all reports or other communications
furnished to stockholders and copies of any reports or financial statements
furnished to or filed with the Commission or the New York Stock Exchange (the
"NYSE") or any other national securities exchange or association on which any
class of securities of the Company is quoted or listed, and the Company shall
furnish to the Underwriters copies of all reports and other communications
furnished to the Noteholders.
(h) Until termination of the offering of the Notes, the Company shall
timely file all documents and amendments to previously filed documents required
to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the Exchange Act.
(i) The Company shall apply the net proceeds from the sale of the Notes as
set forth in the Prospectus.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
the Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a timely
fashion in accordance with Section 4(a) hereof, the Registration Statement and
all post-effective amendments to the Registration Statement shall have become
effective, all filings required by Rule 424 and Rule 430A of the Rules and
Regulations shall have been made and no such filings shall have been made
without the consent of the Underwriters; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto or suspending the qualification of the Notes for offering or sale in any
jurisdiction shall have been issued; no proceedings for the issuance of any such
order shall have been initiated or threatened; and any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been disclosed to you and complied with to
your satisfaction.
(b) No Underwriter shall have been advised by the Company or shall have
discovered and disclosed to the Company that the Registration Statement or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of fact which in your opinion, or in the opinion of counsel to the Underwriters,
is material, or omits to state a fact which, in your opinion, or in the opinion
of counsel to the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) On the Closing Date, you shall have received from Baker & Botts,
L.L.P., counsel for the Underwriters, such opinion or opinions with respect to
the validity of the Notes and other related matters as you may reasonably
request and such counsel shall have received such documents and information as
they request to enable them to pass upon such matters.
(d) On the Closing Date there shall have been furnished to you the opinion
(addressed to the Underwriters) of Vinson & Elkins L.L.P., counsel for the
Company, dated the Closing Date and in form and substance satisfactory to the
Underwriters, to the effect that:
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(i) The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the laws of the jurisdiction of
its incorporation, with full corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Prospectus. To the knowledge of such counsel, the Company is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business conducted by it or the location of the properties
owned, leased or operated by it makes such qualification necessary (except
where the failure to so qualify would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole).
(ii) To the best of such counsel's knowledge, neither the filing of
the Registration Statement nor the offering or sale of the Notes as
contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of
any securities of the Company or any of its Subsidiaries. The authorized
equity capitalization of the Company as of the date of the most recent
balance sheet included or incorporated by reference in the Prospectus is as
set forth in the Prospectus. The Company has all requisite corporate power
and authority to issue, sell and deliver the Notes in accordance with and
upon the terms and conditions set forth in this Agreement and in the
Registration Statement and Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law); and the Indenture has been duly qualified under the Trust
Indenture Act and the rules and regulations thereunder.
(iv) The Notes have been duly authorized and executed by the Company
for issuance and sale to the Underwriters pursuant to this Agreement and,
assuming due authentication of the Notes by the Trustee, upon delivery to
the Underwriters against payment therefor in accordance with the terms of
this Agreement, will have been validly issued and delivered, will be
entitled to the benefits of the Indenture and will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
or judicial decisions relating to or affecting creditors' rights generally
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(v) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, nor will the performance by the
Company of its obligations hereunder violate any law, rule, administrative
regulation or (to the knowledge of such counsel) decree (except that such
counsel need not express an opinion as to federal or state securities or
Blue Sky laws with respect to this subparagraph) of any court or any
governmental agency or body having jurisdiction over the Company, its
Subsidiaries or their respective properties. Except for permits, consents,
approvals and
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similar authorizations required under the securities or Blue Sky laws of
certain jurisdictions and except for such permits, consents, approvals and
authorizations which have been obtained, no permit, consent, approval,
authorization or order of any court, governmental agency or body or
financial institution is required of the Company for the valid
authorization, issuance, sale and delivery of the Notes.
(vi) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the
Company.
(vii) The Registration Statement and all post-effective amendments
thereto have become effective under the Securities Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending before or threatened by the
Commission. To the knowledge of such counsel, no order of the Commission
directed to any document incorporated by reference in the Registration
Statement has been issued, and no challenge by appropriate proceedings has
been made to the accuracy or adequacy of any document incorporated by
reference in the Registration Statement.
(viii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company and the Form T-1, as
of their respective effective or issue dates, complied as to form in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations and the Trust Indenture Act and the rules and
regulations thereunder (except that no opinion need be expressed as to the
financial statements or notes thereto or other financial and statistical
data contained therein or omitted therefrom).
(ix) The Indenture and the Notes conform in all material respects as
to legal matters to the respective statements concerning them contained in
the Registration Statement and Prospectus. There are no legal proceedings
pending or threatened against the Company or any of its Subsidiaries to
which such counsel has given substantive attention or in which such counsel
has been engaged to represent the Company or any of its Subsidiaries that
are required to be disclosed in the Prospectus and are not disclosed.
Such opinion shall also contain a statement that such counsel has no reason
to believe that (i) the Registration Statement, as of the Effective Time, or any
amendment thereto (other than the financial statements and notes thereto and the
other financial and statistical data contained therein, as to which such counsel
need not comment), at the time it became effective, including in each case any
document filed under the Exchange Act and incorporated by reference therein,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (ii) the Prospectus or any supplement or
amendment thereto (other than the financial statements and notes thereto and the
other financial and statistical data contained therein, as to which such counsel
need not comment), including in each case any document filed under the Exchange
Act and incorporated by reference therein, on such Closing Date and at the time
such Prospectus or supplement or amendment thereto was issued contains or
contained any untrue statement of a material fact or omits or omitted to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
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<PAGE>
(e) On the Closing Date there shall have been furnished to you the opinion
(addressed to the Underwriters) of Senior Vice President and General Counsel of
the Company, dated the Closing Date and in form and substance satisfactory to
the Underwriters, to the effect that:
(i) Each of the Company's Significant Subsidiaries has been duly
incorporated or formed as a corporation or partnership, as applicable, and
is validly existing as a corporation, a general partnership or a limited
partnership under the laws of its jurisdiction of incorporation or
formation (and each of the Significant Subsidiaries that is a corporation
or a limited partnership is in good standing under the laws of its
jurisdiction of incorporation or formation), with full corporate or
partnership (as applicable) power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To the knowledge of such counsel, except as disclosed in the
Prospectus, all of the outstanding shares of capital stock or partnership
interests (or such percentage of the partnership interest as is set forth
in the respective partnership agreements) of each Significant Subsidiary
are owned directly or indirectly by the Company, free and clear of any
perfected security interest.
(iii) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation, by-laws, partnership agreement or other governing documents
of the Significant Subsidiaries or any agreement, indenture or other
instrument filed as an exhibit to the Registration Statement or any
document incorporated by reference therein.
(iv) Each document incorporated by reference in the Registration
Statement as filed under the Exchange Act complied when so filed as to form
in all material respects with the applicable requirements of the Exchange
Act and the rules and regulations of the Commission thereunder (except that
no opinion need be expressed as to the financial statements or notes
thereto and other financial and statistical data contained therein).
(v) The descriptions in the Registration Statement and Prospectus
of statutes, regulations, legal or governmental proceedings, to the extent
they constitute matters of law and summaries of legal matters are accurate
in all material respects. To the knowledge of such counsel, there are no
contracts or documents required to be described in the Registration
Statement or Prospectus or to be filed as exhibits thereto which are not
described or filed as required.
(f) There shall have been furnished to you a certificate, dated the
Closing Date and addressed to you, signed by the Chairman of the Board or the
President or any Senior Vice President and by the Chief Financial Officer of the
Company to the effect that: (i) the representations and warranties of the
Company contained in this Agreement are true and correct, as if made at and as
of the Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be complied with or satisfied at or
prior to the Closing Date; (ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceeding for that purpose
has been initiated or, to the best of their knowledge, threatened; (iii) all
filings required by Rule 424(b) and Rule 430A of the Rules and Regulations have
been made; (iv) the
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<PAGE>
signers of said certificate have carefully examined the Registration
Statement and the Prospectus, and any amendments or supplements thereto
(including any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), and such documents contain
all statements and information required to be included therein, and do not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; (v) since the Effective Date there has
occurred no event required to be set forth in an amendment or supplement to
the Registration Statement or the Prospectus which has not been so set
forth and there has been no document required to be filed under the
Exchange Act and the Rules and Regulations that upon such filing would be
deemed to be incorporated by reference into the Prospectus that has not
been so filed and (v) no event contemplated by subsection (g) of this
Section 5 shall have occurred.
(g) Since the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) and in the Prospectus (exclusive
of any supplement thereto), neither the Company nor any of its Subsidiaries
shall have sustained any loss by fire, flood, accident or other calamity, or
shall have become a party to or the subject of any litigation, which is
materially adverse to the Company and its Subsidiaries taken as a whole, nor
shall there have been a material adverse change in the general affairs,
operations, business, prospects, key personnel, capitalization, financial
condition or net worth of the Company and its Subsidiaries taken as a whole,
regardless of whether arising in the ordinary course of business, which loss,
litigation or change, in your judgement, shall render it impractical or
inadvisable to proceed with the payment for and delivery of the Notes.
(h) On the date hereof and the Closing Date you shall have received
letters from Arthur Andersen LLP, dated respectively the date hereof and the
Closing Date and addressed to you, confirming that they are independent
certified public accountants within the meaning of the Securities Act and the
applicable published Rules and Regulations, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given or
incorporated in the Prospectus as of a date not more than five days prior to the
date of such letter, provided that such date shall be after the date of the
Prospectus), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and, with respect to the
letter delivered on the Closing Date, confirming the conclusions and findings
set forth in such prior letter.
(i) You shall have been furnished by the Company such additional documents
and certificates as you or counsel for the Underwriters may reasonably request.
(j) At the time of the Closing, the Notes shall have a rating of at least
Baa2 by Moody's Investors Service and BBB+ by Standard & Poor's Corporation, and
the Company shall have delivered to the Underwriters a letter, dated the Closing
Date, from each such rating agency or other evidence satisfactory to the
Underwriters, confirming such ratings. Since the date hereof, there shall not
have occurred any downgrading with respect to any debt securities of the Company
or any of its Subsidiaries by any "nationally recognized statistical rating
organization" as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading of such rating).
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<PAGE>
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters. The Company shall furnish
to you conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any of the
conditions specified in this Section 5 shall not have been fulfilled when and as
required by this Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date, by you. Any such cancellation shall be without liability of the
Underwriters to the Company. Notice of such cancellation shall be given to the
Company in writing, or by telegraph or telephone and confirmed in writing.
6. Indemnification and Contribution. The Company shall indemnify and hold
harmless each Underwriter from and against any loss, claim, damage or liability
(or any action in respect thereof), joint or several, to which such Underwriter
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage or liability (or action in respect thereof) arises out of or is
based upon (i) any untrue statement or alleged untrue statement made by the
Company in Section 1 hereof, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented, or (iii) the omission or alleged omission
to state in the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented a material fact required to be stated therein or necessary to make
the statements therein not misleading; and shall reimburse each Underwriter
promptly after receipt of invoices from such Underwriter for any legal or other
expenses as reasonably incurred by such Underwriter in connection with
investigating, preparing to defend or defending against or appearing as a third-
party witness in connection with any such loss, claim, damage, liability or
action, notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that the Company shall not be liable under this
paragraph 6(a) in any such case to the extent, but only to the extent, that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriters expressly for use in the preparation of the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented; provided,
further that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any Preliminary Prospectus, which untrue statement
or omission or alleged untrue statement or omission in such Preliminary
Prospectus was corrected in the Prospectus, the indemnity agreement contained in
this paragraph 6(a) shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) to the extent that any such loss, claim,
damage or liability results from the fact that a copy of the Prospectus was not
sent or given to the person asserting any such losses, claims, damages or
liabilities at or prior to the written confirmation of the sale of the Notes
concerned to such person by such Underwriter (provided that the Company shall
have complied with the provisions of Section 4(a) and (c) hereof and such
Underwriter shall have been provided with the number of copies of such
Prospectus requested by such Underwriter in a timely manner) and it is
judicially determined that such delivery was required under the Securities Act
and was not so made.
(b) Each Underwriter severally, but not jointly, shall indemnify and hold
harmless the Company against any loss, claim, damage or liability (or any action
in respect thereof) to which the Company may become subject, under the
Securities Act or otherwise, insofar as such loss, claim,
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damage or liability (or action in respect thereof) arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Registration Statement or Prospectus as amended or
supplemented, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented a material fact
required to be stated therein or necessary to make the statements therein not
misleading and shall reimburse the Company promptly after receipt of invoices
from the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating, preparing to defend or defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action notwithstanding the possibility that payments
for such expenses might later be held to be improper, in which case such
payments shall be promptly refunded; provided, however, that such
indemnification or reimbursement shall be available in each such case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use therein.
(c) Promptly after receipt by any indemnified party under subsection (a) or
(b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to so notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against any indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under subsection (a) or (b) above for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; except that the
Underwriters shall have the right to employ counsel to represent the
Underwriters who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company under
such subsection if (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Underwriters shall have been advised by
counsel that there may be one or more legal defenses available to the
Underwriters which are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Underwriters to employ separate counsel or (iii) the Company has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the Underwriters, in which event the fees and expenses of such separate counsel
shall be paid by the Company. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but
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if settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the first sentence of this
subsection (d). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending against any
action or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint. Each party entitled to contribution agrees that upon
the service of a summons or other initial legal process upon it in any action
instituted against it in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
of any such service shall not relieve the party from whom contribution may be
sought for any obligation it may have hereunder or otherwise (except as
specifically provided in subsection (c) above).
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(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have, and shall extend,
upon the same terms and conditions set forth in this Section 6, to the
respective officers and directors of the Underwriters and each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have, and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. Substitution of Underwriters. If any Underwriter defaults in its
obligation to purchase the principal amount of the Notes which it has agreed to
purchase under this Agreement, the non-defaulting Underwriters shall be
obligated to purchase (in the respective proportions which the principal amount
of the Notes set forth opposite the name of each non-defaulting Underwriter in
Schedule I hereto bears to the total principal amount of the Notes less the
principal amount of the Notes the defaulting Underwriter agreed to purchase set
forth in Schedule I hereto) the principal amount of the Notes which the
defaulting Underwriter agreed but failed to purchase; except that the non-
defaulting Underwriters shall not be obligated to purchase any of the Notes if
the total principal amount of the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceed 9.09% of the total principal
amount of the Notes, and any non-defaulting Underwriters shall not be obligated
to purchase more than 110% of the principal amount of the Notes set forth
opposite its name in Schedule I hereto. If the foregoing maximums are exceeded,
the non-defaulting Underwriters, and any other underwriters satisfactory to you
who so agree, shall have the right, but shall not be obligated, to purchase (in
such proportions as may be agreed upon among them) all of the Notes. If the non-
defaulting Underwriters or the other underwriters satisfactory to the
Underwriters do not elect to purchase the Notes that the defaulting Underwriter
or Underwriters agreed but failed to purchase within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except for the indemnity and
contribution agreements of the Company and the Underwriters contained in Section
6 hereof. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter pursuant to this Section 7.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the non-defaulting
Underwriters or the other underwriters satisfactory to you are obligated or
agree to purchase the Notes of a defaulting Underwriter, either you or the
Company may postpone the Closing Date for up to seven full Business Days in
order to effect any changes that may be necessary in the Registration Statement
or the Prospectus or in any other document or agreement, and to file promptly
any amendments or any supplements to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary.
8. Effective Date and Termination. This Agreement shall become effective
(i) if the Effective Date is on or before the date of this Agreement, at 11:00
A.M., New York City time, on the next Business Day following the date hereof,
(ii) if the Effective Date is after the date of this Agreement, at 11:00 A.M.,
New York City time, on the first full Business Day following the Effective Date
or (iii) at such earlier time after the Registration Statement becomes effective
as you shall first release the Notes for sale to the public. You shall notify
the Company immediately after you have taken any action which causes this
Agreement to become effective. Until this Agreement
-18-
<PAGE>
is effective, it may be terminated by the Company by giving notice as
hereinafter provided to you, or by you by giving notice as hereinafter provided
to the Company except that the provisions of Section 4(f) and Section 6 hereof
shall at all times be effective. For purposes of this Agreement, the release of
the initial public offering of the Notes for sale to the public shall be deemed
to have been made when you release, by telegram or otherwise, firm offers of the
Notes to securities dealers or release for publication a newspaper advertisement
relating to the Notes, whichever occurs first.
(b) Until the Closing Date, this Agreement may be terminated by you by
giving notice as hereinafter provided to the Company if (i) the Company shall
have failed, refused or been unable, at or prior to the Closing Date, to perform
any agreement on its part to be performed hereunder, (ii) any other condition of
the Underwriters' obligation hereunder is not fulfilled, (iii) trading in the
Company's Common Stock shall have been suspended by the Commission or the NYSE
or trading in securities generally on the NYSE shall have been suspended or
minimum prices shall have been established on such exchange by the Commission or
such exchange or other regulatory body or governmental authority having
jurisdiction, (iv) a banking moratorium is declared by either federal or New
York state authorities, (v) the United States becomes engaged in hostilities or
there is an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States which, in the
judgment of a majority in interest of the several Underwriters, make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes or (vi) there shall have been such a material adverse change in general
economic, political or financial conditions, or the effect of international
conditions on the financial markets in the United States shall be such, as to,
in the judgment of a majority in interest of the several Underwriters, make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes. Any termination of this Agreement pursuant to this Section 8 shall be
without liability on the part of the Company or any Underwriter, except as
otherwise provided in Sections 4(f) and 6 hereof.
Any notice referred to above may be given at the address specified in
Section 10 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
9. Survival of Certain Provisions. The agreements contained in Section 6
hereof and the representations, warranties and agreements of the Company
contained in Sections 1 and 4 hereof shall survive the delivery of the Notes to
the Underwriters hereunder and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any indemnified party.
10. Notices. Except as otherwise provided in the Agreement, (a) whenever
notice is required by the provisions of this Agreement to be given to the
Company, such notice shall be in writing or by telegraph addressed to the
Company at 1000 Louisiana, Suite 5800, Houston, Texas 77002, Attention: General
Counsel; (b) whenever notice is required by the provisions of this Agreement to
be given to the several Underwriters, such notice shall be in writing or by
telegraph addressed to you in care of Lehman Brothers Inc., Three World
Financial Center, 200 Vesey Street, New York, New York 10285, Attention: General
Counsel.
11. Information Furnished by Underwriters. The Underwriters severally
confirm that the information appearing in the list of names of, and principal
amount of Notes to be purchased by, each of the Underwriters, under the caption
"Underwriting" in any Preliminary Prospectus and
-19-
<PAGE>
in the Prospectus, and the statements in the second, fourth and sixth paragraphs
and the second and third sentences of the third paragraph next following such
list, constitute the written information furnished by or on behalf of any
Underwriter referred to in paragraph (b) of Section 1 hereof and in paragraphs
(a) and (b) of Section 6 hereof.
12. Parties. This Agreement shall inure to the benefit of and be binding
upon the several Underwriters, the Company and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations, warranties, indemnities
and agreements of the Company contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (b) the
indemnity agreement of the Underwriters contained in Section 6 hereof shall be
deemed to be for the benefit of directors of the Company, officers of the
Company who signed the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement shall be construed to give any person, other than the persons referred
to in this paragraph, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
13. Definition of "Business Day" and "Subsidiary." For purposes of this
Agreement, (a) "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City or Houston, Texas, and
(b) "Subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations and includes both partnerships and corporations.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
-20-
<PAGE>
Please confirm, by signing and returning to us two counterparts of this
Agreement, that you are acting on behalf of yourselves and the several
Underwriters and that the foregoing correctly sets forth the Agreement between
the Company and the several Underwriters.
Very truly yours,
Dynegy Inc.
By: /s/ John U. Clarke
---------------------------
Name: John U. Clarke
Title: Senior Vice President
Confirmed and accepted as of
the date first above mentioned
LEHMAN BROTHERS INC
ABN AMRO INCORPORATED
BANK OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
By: Lehman Brothers Inc
By: /s/ Jeffrey Weiss
---------------------------
Name: Jeffrey Weiss
--------------------
Title: Managing Director
--------------------
-21-
<PAGE>
SCHEDULE I
Underwriting Agreement dated July 22, 1999
Principal Amount of Principal Amount
6.875% Notes to be of 7.450% Notes to
Underwriter Purchased be Purchased
Lehman Brothers Inc $119,999,000 $119,999,000
ABN AMRO Incorporated 26,667,000 26,667,000
Bank of America Securities LLC 26,667,000 26,667,000
Chase Securities Inc. 26,667,000 26,667,000
------------ ------------
Total $200,000,000 $200,000,000
============ ============
-1-
<PAGE>
EXHIBIT A
Underwriting Agreement dated July 22, 1999
As used in the Underwriting Agreement, the "Significant Subsidiaries" of the
Company are as follows:
Dynegy Power Corp.
Dynegy Global Energy, Inc.
Dynegy Holding Company, L.L.C.
DMT Holdings, Inc.
Dynegy GP Inc.
Dynegy Midstream, Inc.
Dynegy Regulated Holdings, Inc.
A-1
<PAGE>
Exhibit 4.1
FORM OF SENIOR NOTE
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DYNEGY INC.
6.875% Senior Notes due July 15, 2002
No. R-003 CUSIP 26816L AA 0
Dynegy Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of $200,000,000 on July 15, 2002 and to pay interest thereon from
July 27, 1999 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually in arrears on January 15 and
July 15 in each year, commencing January 15, 2000, at the rate of 6.875% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 1 or July 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be
<PAGE>
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Security will be made at the
Corporate Trust Office of the Trustee, or such other office or agency of the
Company as may be designated by it for such purpose in such coin or currency of
the United States of America as at the time of payment shall be legal tender for
the payment of public and private debts; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in
its name by its Chairman of the Board, President, Treasurer or Chief Financial
Officer, manually or by a facsimile of his signature, and its corporate seal (or
a facsimile thereof) to be hereunto affixed and the same to be attested by its
Secretary or an Assistant Secretary, all either manually or in facsimile.
Dated: July 27, 1999
DYNEGY INC.
By:
-------------------------------
Attest:
____________________________________
2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:
--------------------------------
Authorized Officer
3
<PAGE>
Reverse of Senior Note
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 26, 1996, and as amended and
restated on March 23, 1998 (herein called the "Indenture"), among the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount of $200,000,000.
The Securities of this series are not subject to any sinking fund.
The Securities of this series are not redeemable prior to maturity.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Company on this Security and (b) certain restrictive
covenants upon compliance by the Company with certain conditions set forth
therein which provisions apply to this Security.
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal hereof may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than
4
<PAGE>
25% in principal amount of the Outstanding Securities of this series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency herein,
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any agent shall be affected by notice to the contrary.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
All terms used in this Security which are defined in the Indenture shall
have the same meanings assigned to them in the Indenture.
5
<PAGE>
Exhibit 4.2
FORM OF SENIOR NOTE
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DYNEGY INC.
7.450% Senior Notes due July 15, 2006
No. R-004 CUSIP 26816L AB 8
Dynegy Inc., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company," which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of $200,000,000 on July 15, 2006 and to pay interest thereon from
July 27, 1999 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually in arrears on January 15 and
July 15 in each year, commencing January 15, 2000, at the rate of 7.450% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the January 1 or July 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is
<PAGE>
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Payment of the
principal of and interest on this Security will be made at the Corporate Trust
Office of the Trustee, or such other office or agency of the Company as may be
designated by it for such purpose in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in
its name by its Chairman of the Board, President, Treasurer or Chief Financial
Officer, manually or by a facsimile of his signature, and its corporate seal (or
a facsimile thereof) to be hereunto affixed and the same to be attested by its
Secretary or an Assistant Secretary, all either manually or in facsimile.
Dated: July 27, 1999
DYNEGY INC.
By:
-------------------------------
Attest:
____________________________________
2
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By:
-------------------------------
Authorized Officer
3
<PAGE>
Reverse of Senior Note
This Senior Note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 26, 1996, and as amended and
restated on March 23, 1998 (herein called the "Indenture"), among the Company
and The First National Bank of Chicago, as Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount of $200,000,000.
The Securities of this series are not subject to any sinking fund.
The Securities of this series shall be redeemable, at the option of the
Company, in whole at any time or in part from time to time, on at least 30 days
but not more than 60 days prior notice mailed to the registered address of each
holder of Securities to be so redeemed, at a redemption price equal to the
greater of (i) 100% of the principal amount of the Securities to be so redeemed
plus accrued interest thereon to the date of redemption, and (ii) the sum of the
present values of the remaining scheduled payments of principal of the
Securities to be so redeemed and interest thereon discounted to the date of
redemption, on a semiannual basis (assuming 360-day year consisting of twelve
30-day months), at the Treasury Rate (as defined below) plus 25 basis points
plus accrued interest thereon to the date of redemption.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Securities.
"Independent Investment Banker" means the Reference Treasury Dealer.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if
4
<PAGE>
such release (or any successor release) is not published or does not contain
such prices on such business day, the average of the Reference Treasury Dealer
Quotations for such redemption date. "Reference Treasury Dealer Quotations"
means, with respect to the Reference Treasury Dealer and any redemption date,
the average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by the Reference Treasury
Dealer at 5:00 p.m. on the third business day preceding such redemption date.
"Reference Treasury Dealer" means Lehman Brothers Inc and its successors;
provided however, that if Lehman Brothers Inc shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of the Company on this Security and (b) certain restrictive
covenants upon compliance by the Company with certain conditions set forth
therein which provisions apply to this Security.
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal hereof may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder
of any Security of this series will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series shall have made
written request, and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed
5
<PAGE>
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency herein,
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and none of the Company, the
Trustee or any agent shall be affected by notice to the contrary.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
All terms used in this Security which are defined in the Indenture shall
have the same meanings assigned to them in the Indenture.
6
