Exhibit 1.1
PSEG POWER LLC
(a Delaware limited liability company)
Senior Debt Securities
UNDERWRITING AGREEMENT
_____________, 200_
[Name and Address of Underwriters]
Ladies and Gentlemen:
PSEG Power LLC, a Delaware limited liability company (the "Company"),
proposes to issue and sell up to $__________ aggregate initial public offering
price of its senior debt securities (the "Notes"), from time to time, in or
pursuant to one or more offerings on terms to be determined at the time of sale.
The Notes will be issued in one or more series pursuant to the provisions
of an Indenture dated as of April 16, 2001 as amended and supplemented by the
First Supplemental Indenture, dated as of March 13, 2002 (the "Indenture") among
the Company, PSEG Nuclear LLC, a Delaware limited liability company ("Nuclear"),
PSEG Fossil LLC, a Delaware limited liability company ("Fossil"), PSEG Energy
Resources & Trade LLC, a Delaware limited liability company ("ER&T"), and The
Bank of New York, a New York banking corporation, as Trustee (the "Trustee").
The Notes and the Guarantees (as defined below) are hereinafter together
referred to as the "Securities". Nuclear, Fossil and ER&T are individually
referred to herein as a "Guarantor" and collectively referred to herein as the
"Guarantors," as the context requires. Each of Nuclear, Fossil and ER&T will
jointly and severally and unconditionally guarantee the payment of principal and
interest and any make-whole premium on the Notes (each, a "Guarantee" and
collectively, the "Guarantees"). Each series of Notes may vary, as applicable,
as to title, aggregate principal amount, rank, interest rate or formula and
timing of payments thereof, stated maturity date, redemption and/or repayment
provisions, sinking fund requirements, conversion provisions and any other
variable terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities through
______________ (the "Representative"), or through an underwriting syndicate
managed by the Representative, the Company will enter into an agreement (each, a
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, the Representative and such other
underwriters, if any, selected by the Representative (the "Underwriters", which
term shall include the Representative, whether acting as sole Underwriter or as
a member of an underwriting syndicate, as well as any Underwriter substituted
pursuant to Section 10 hereof). The Terms Agreement relating to the offering of
Securities shall specify the aggregate principal amount of Securities to be
initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than the Representative acting as co-manager in connection
with such offering, the aggregate principal amount of Initial Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Initial Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Underwritten Securities and any
other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the aggregate principal amount
of Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between the Company and the Representative, acting for
itself and, if applicable, as representative of any other Underwriters. Each
offering of Underwritten Securities through the Representative as sole
Underwriter or through an underwriting syndicate managed by the Representative
will be governed by this Underwriting Agreement, as supplemented by the
applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_____) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the Company has filed
such post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the
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1933 Act Regulations, and all references in this Underwriting Agreement to the
date of the Prospectus shall mean the date of the Term Sheet. A "preliminary
prospectus" shall be deemed to refer to any prospectus used before the
Registration Statement became effective and any prospectus that omitted, as
applicable, the Rule 430A Information, the Rule 434 Information or other
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations and was used
after such effectiveness and prior to the execution and delivery of the
applicable Terms Agreement. For purposes of this Underwriting Agreement, all
references to the Registration Statement, Prospectus, Term Sheet or preliminary
prospectus or to any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company and each Guarantor
represents and warrants to the Representative, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date
thereof, as of the Closing Time (as defined below) and, if applicable, as of
each Date of Delivery (as defined below) (in each case, a "Representation
Date"), as follows:
(1) Compliance with Registration Requirements. The Company and each
Guarantor meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement (including any Rule 462(b) Registration
Statement) has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under
the 1939 Act.
At the respective times the Registration Statement (including any
Rule 462(b) Registration Statement) and any post-effective amendments
thereto (including the filing of the Company's most recent Annual Report
on Form 10-K with the Commission (the "Annual Report on Form 10-K"))
became effective and at each Representation Date, the Registration
Statement (including any Rule 462(b) Registration Statement) and any
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amendments thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with
the requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through the
Representative expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities will,
at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the Representative expressly for use therein.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus, at the
date of the Prospectus, at the Closing Time and at each Date of Delivery,
if any, did not and will not include an untrue statement of a material
fact or omit to state a material fact necessary in
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order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries,
or such other entity, as the case may be, at the dates indicated and the
statement of operations, member's equity and cash flows of the Company and
its consolidated subsidiaries, or such other entity, as the case may be,
for the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information required
to be stated therein. The Company's ratios of earnings to fixed charges
included in the Prospectus and in Exhibit 12 to the Registration Statement
have been calculated in compliance with Item 503(d) of Regulation S-K of
the Commission. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus.
(5) No Material Adverse Change in Business. Neither the Company nor
any Guarantor has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
material loss from fire, explosion, flood, accident or other calamity not
fully covered by insurance, otherwise than as set forth or contemplated in
the Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change or
any development involving a prospective material adverse change in the
general affairs, financial condition, earnings or business affairs of the
Company and its subsidiaries, including each Guarantor (each such
subsidiary and Guarantor, a "Subsidiary" and, collectively, the
"Subsidiaries"), considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Change"); (B) there
have been no transactions entered into by the Company or any of its
Subsidiaries, other than those arising in the ordinary course of business,
which are material with respect to the Company and its Subsidiaries
considered as one enterprise; (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its membership interests; and (D) there has not been any material
change in the or long-term debt of the Company and its Subsidiaries.
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(6) Good Standing of the Company. The Company has been duly
organized, is validly existing as a limited liability company in good
standing under the laws of the jurisdiction of its organization, has the
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not result in a Material Adverse Change. All of
the issued membership interests in the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are directly
owned by Public Service Enterprise Group Incorporated, free and clear of
all liens, encumbrances, equities or claims.
(7) Good Standing of Subsidiaries. Each direct and indirect
subsidiary of the Company, including each Guarantor, has been duly
incorporated or organized, is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of
its incorporation or organization, has the power and authority to own its
property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not result in
a Material Adverse Change. All of the issued shares of capital stock or
membership interests of each direct and indirect subsidiary of the
Company, including each Guarantor, have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned directly by
the Company or a direct subsidiary of the Company, as the case may be,
free and clear of all liens, encumbrances, equities or claims. None of the
outstanding shares of capital stock or membership interests of any
Subsidiary was issued in violation of preemptive or other similar rights
of any security holder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding membership interests of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such membership interests have
been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such membership interests was issued in
violation of preemptive or other similar rights of any security holder of
the Company.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by the Company and each Guarantor.
(10) Authorization of Notes. The Notes being sold pursuant to the
applicable Terms Agreement, have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting
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Agreement and such Terms Agreement. Such Notes, when issued and
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any debt
securities payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such Notes will
be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(11) Authorization of Guarantees. The Guarantees being sold pursuant
to the applicable Terms Agreement, have been, or as of the date of such
Terms Agreement will have been, duly authorized by the Company for
issuance and sale pursuant to this Underwriting Agreement and such Terms
Agreement. Such Guarantees, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and binding obligations of each applicable Guarantor, enforceable
against each applicable Guarantor in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
may be limited by requirements that a claim with respect to any
obligations payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. Such Guarantees
will be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(12) Authorization of the Indenture. The Indenture has been, or
prior to the issuance of the Securities thereunder will have been, duly
authorized, executed and delivered by the Company and each Guarantor and,
upon such authorization, execution and delivery, will constitute a valid
and binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
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(13) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the Indenture, as of each Representation Date, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be substantially in
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(14) Absence of Defaults and Conflicts. Neither the Company nor any
of its Subsidiaries is in violation of its Limited Liability Company
Operating Agreement, Certificate of Formation, other organization document
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the Company or any of
its Subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Change. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement, the Indenture, the Guarantees
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company or the Guarantors in connection with
the transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the
use of the proceeds from the sale of the Underwritten Securities as
described under the caption "Use of Proceeds") and compliance by the
Company and the Guarantors with their obligations hereunder and thereunder
have been duly authorized by all necessary company action and do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or operations
of the Company or any of its subsidiaries pursuant to, any Agreements and
Instruments, nor will such action result in any violation of the
provisions of the governing documents or by-laws of the Company or any of
its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
(15) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its Subsidiaries exists or, to the knowledge of
the Company or the Guarantors, is imminent, and the Company and the
Guarantors are not aware of any existing or imminent labor disturbance by
the employees of any of its or any Subsidiary's
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principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Change.
(16) Absence of Proceedings. Other than as set forth in or
contemplated by the Prospectus, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which
might reasonably be expected to result in a Material Adverse Change, or
which might reasonably be expected to materially and adversely affect the
consolidated assets, properties or operations thereof or the consummation
of the transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement, a Guarantee or the Indenture,
or the performance by the Company or any Guarantor of its obligations
hereunder and thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries
is a party or of which any of their respective assets, properties or
operations is the subject which are not described in the Registration
Statement and the Prospectus, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in
a Material Adverse Change.
(17) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(18) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company and each Guarantor of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Guarantee or for the performance by the Company and each Guarantor of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement, each applicable Guarantee or the
Indenture, except the registration of the Securities under the 1933 Act,
the qualification of the Indenture under the 1939 Act and such consents,
approvals, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issuance and sale, as
the case may be, of the securities and except such as have been already
made, obtained or rendered, as applicable.
(19) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them. The Company and
its Subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, result in a Material Adverse Change. All
of the Governmental Licenses are valid and in full force and Change,
except where the invalidity of such Governmental
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Licenses or the failure of such Governmental Licenses to be in full force
and effect would not result in a Material Adverse Change. Neither the
Company nor any of its Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Change.
(20) Title to Property. The Company and its Subsidiaries have good
and marketable title to all real property owned by the Company and its
Subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus or (B) those which
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its Subsidiaries. All of the leases
and subleases material to the business of the Company and its Subsidiaries
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its Subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary of
the continued possession of the leased or subleased premises under any
such lease or sublease.
(21) Facilities. The mechanical, electrical and other operating
systems in the Company's generation facilities are in good working order
and repair and are adequate in all material respects for the present
operation of the generation facilities by the Company as described in the
Prospectus.
(22) Insurance. The Company and its Subsidiaries have in full force
and effect insurance with reputable insurers covering their assets,
properties, operations, personnel and business against such losses,
damage, risks and hazards as are adequate in accordance with customary
industry practice to protect the Company, its Subsidiaries and their
businesses.
(23) Commodity Exchange Act. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the
Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(24) Investment Company Act. The Company and each Guarantor is not,
and upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
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(25) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Change, (A) neither the
Company nor any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy
or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the aggregate principal amount of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by the Representative to the Company setting
forth the aggregate principal amount of Option Underwritten Securities
11
as to which the several Underwriters are then exercising the option and the
time, date and place of payment and delivery for such Option Underwritten
Securities. Any such time and date of payment and delivery (each, a "Date of
Delivery") shall be determined by the Representative, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, unless otherwise agreed upon by the
Representative and the Company. If the option is exercised as to all or any
portion of the Option Underwritten Securities, each of the Underwriters,
severally and not jointly, will purchase that proportion of the total aggregate
principal amount of Option Underwritten Securities then being purchased which
the aggregate principal amount of Initial Underwritten Securities each such
Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total aggregate principal amount of Initial Underwritten
Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of the Company, 00
Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, or at such other place as shall be agreed
upon by the Representative and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Representative and the Company (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-mentioned
offices of the Company, or at such other place as shall be agreed upon by the
Representative and the Company, on the relevant Date of Delivery as specified in
the notice from the Representative to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. the
Representative, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as the Representative may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Representative in
The City of New York not later than 9:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Guarantors. The Company and
each Guarantor covenants with the Representative and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
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(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, promptly to use
its best efforts to obtain its withdrawal.
(b) Filing of Amendments. The Company will give the Representative notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document of which the Representative or counsel for the
Underwriters shall reasonably disapprove.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representative and counsel for the Underwriters, in such
quantities as the Representative may reasonably request, without charge, signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will also
deliver to the Representative, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any
13
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representative may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
14
(i) Listing. The Company will use its best efforts to effect the listing
of the Underwritten Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, neither the Company nor any Guarantor will, without the prior written
consent of the Representative, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, the
securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company and the
Guarantors will pay all expenses incident to the performance of their
obligations under this Underwriting Agreement or the applicable Terms Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Underwriting Agreement, any Terms Agreement, any Agreement
Among Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Underwritten Securities, (iii) the preparation, issuance and delivery of the
Underwritten Securities to the Underwriters, including any transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Underwritten Securities to the Underwriters, (iv) the fees and disbursements of
counsel to the Company and the Guarantors, accountants and other advisors or
agents (including transfer agents and registrars), as well as the fees and
disbursements of the Trustees and their respective counsel, (v) the
qualification of the Underwritten Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities, (x) all other costs and expenses incident to the
performance of obligations hereunder which are not otherwise specifically
provided for in this Section and (xi) the fees and expenses of any Underwriter
acting in the capacity of a "qualified independent underwriter" (as defined in
Rule 2720(b)(15) of the Conduct Rules of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section 5
hereof, the Company shall
15
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company and the Guarantors contained in Section 1 hereof
or in certificates of any officer of the Company, any Guarantor or any of their
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company and the Guarantors of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel for the Underwriters. A prospectus containing information relating to
the description of the Underwritten Securities, the specific method of
distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A),
or, if the Company has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall have been
filed with the Commission in accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of either
Xxxxx X. Xxxxx, Esquire or R. Xxxxx Xxxxxxx, Esquire, counsel for the Company
and the Guarantors, in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the matters set forth in (4) to (8), (9) (solely
as to the information in the Prospectus under "Description of Debt Securities",
or any caption purporting to describe any such Securities), (15), (16), (19) and
the penultimate paragraph of Exhibit B hereto. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representative. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and the Guarantors and certificates of public officials.
16
(d) Officer's Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any Material Adverse Change,
and the Representative shall have received a certificate of the Chairman, the
President or any Vice President of the Company and of an executive officer of
each Guarantor, dated as of Closing Time, to the effect that (i) there has been
no such Material Adverse Change, (ii) the representations and warranties in
Section 1(a) are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company and each
Guarantor has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted, are pending or,
to the best of such officer's knowledge, are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representative shall be furnished with a letter
from Deloitte & Touche LLP dated such respective dates and addressed to the
Board of Directors of the Company and the Representative (on its own behalf and
as representative of the Underwriters) with copies thereof for each of the
Underwriters, to the effect that (i) they are independent public accountants
with respect to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) in their opinion, the audited
consolidated financial statements and financial statement schedule(s)
incorporated by reference in the Registration Statement and the Prospectus and
included in the Company's most recent Annual Report on Form 10-K filed with the
Commission under Section 13 of the 1934 Act (the "Form 10-K") comply as to form
in all material respects with the applicable accounting requirements of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations; (iii)
on the basis of (1) the performance of the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement on Auditing Standards No. 100, Interim
Financial Information, on the unaudited consolidated balance sheets, the
unaudited consolidated statements of income and retained earnings, and the
unaudited consolidated statements of cash flows of the Company and its
subsidiaries incorporated by reference in the Registration Statement and the
Prospectus and included in the Company's Form 10-Q Quarterly Reports filed with
the Commission under Section 13 of the 1934 Act (the "Forms 10-Q") subsequent to
the most recent Form 10-K, (2) a reading of the latest available unaudited
financial statements of the Company, (3) a reading of the latest Consent of the
Sole Shareholder in Lieu of Annual Meeting, the minutes of Meetings of the Board
of Directors of the Company as set forth in the minute books for the current
year and certain draft resolutions for subsequent meetings, and (4) inquiries of
the officers of the Company who have responsibility for financial and accounting
matters (it being understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted auditing standards and would
not necessarily reveal matters of significance with respect to the comments made
in such letter, and accordingly that Deloitte & Touche LLP makes no
representation as to the sufficiency of such procedures for the purposes of the
Underwriters), nothing has come to their attention which caused them to believe
that (A) any material modifications should be made to the unaudited financial
statements included in the Forms 10-Q for them to be in conformity with
generally accepted accounting principles; (B) the unaudited financial statements
included in the Forms 10-Q do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the 1934 Act
Regulations or (C) at the date of the latest available financial statements and
at a
17
specified date not more than three days prior to the date of such letter, there
was any change in the common stock or preferred stock or increase in long-term
debt (except for such stock and long-term debt acquired for sinking fund
purposes or redeemed pursuant to optional redemption or sinking fund provisions,
or changes in capital lease obligations incurred in the ordinary course of the
Company's business) of the Company or any decrease in the consolidated net
assets of the Company (except as occasioned by the declaration of dividends), in
each case as compared with the amounts shown on the most recent consolidated
balance sheet of the Company incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date of such balance
sheet to a specified date not more than three days prior to the date of such
letter, there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated revenues or net income of the Company,
except in each such case as set forth in or contemplated by the Registration
Statement and the Prospectus or except for such exceptions enumerated in such
letter as shall have been agreed to by the Underwriters and the Company; (iv) in
addition to the audit referred to in their report included or incorporated by
reference in the Registration Statement and the Prospectus, and the limited
procedures referred to in clause (iii) above, they have carried out certain
other specified procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by the Underwriters, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries
identified in such letter, provided, that said letter may vary from requirements
specified above in such manner as the Representative may deem not to be material
or as may be acceptable to the Representative with the consent of Underwriters
who, together with the Representative, have agreed to purchase in the aggregate
50% or more of the Underwritten Securities.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, in
form and substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, as specified in the
applicable Terms Agreement, and the Company shall have delivered to the
Representative a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's or any Guarantor's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of the
Company's or any Guarantor's other securities.
18
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement, the
Representative shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company and the Guarantors contained herein and the statements in any
certificates furnished by the Company, any Guarantor or any of their
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Representative shall have received:
(1) A certificate, dated such Date of Delivery, of the Chairman, the
President or any Vice President of the Company and of an executive officer
of each Guarantor, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as
of such Date of Delivery.
(2) The favorable opinion of either Xxxxx X. Xxxxx, Esquire or R.
Xxxxx Xxxxxxx, Esquire, counsel for the Company and each Guarantor, each
in form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(3) The favorable opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel
for the Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Representative pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph shall
be a date not more than three business days prior to such Date of
Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's or any Guarantor's
other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under surveillance
or review its rating of the Underwritten Securities or any of the
Company's or any Guarantor's other securities.
19
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and each Guarantor in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be satisfactory in
form and substance to the Representative and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by the Representative by notice to the Company at
any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and each Guarantor,
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such
20
alleged untrue statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply (i) to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or (ii) to any Underwriter in connection with any
preliminary prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results solely from the fact that such Underwriter
sold Underwritten Securities to a person to whom it is established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus (excluding documents incorporated by reference) in any
case where such delivery is required by the 1933 Act, if the Company has
previously furnished to the Representative on behalf of the Underwriters,
including such Underwriter, the copies thereof theretofore requested by the
Representative, and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in a
preliminary prospectus that was corrected in the Prospectus.
(b) In no case shall the Company or any Guarantor be liable under the
indemnity agreement set forth in Section 6(a) hereof with respect to any claim
made against any Underwriter or any such controlling person unless such party
shall be notified in writing of the nature of the claim promptly after the
assertion thereof, but failure to so notify such party shall not relieve it from
any liability which it may have otherwise than on account of said indemnity
agreement. The Company and the Guarantors shall be entitled to participate at
their own expense in the defense, or, if they so elects, within a reasonable
time after receipt of such notice, to assume the defense of any suit brought to
enforce any such claim, but if they so elect to assume the defense, such defense
shall be conducted by counsel chosen by them and approved by the Underwriter or
Underwriters or controlling person or persons, defendant or defendants in any
suit so brought, which approval shall not be unreasonably withheld. In the event
that the Company and the Guarantors elect to assume the defense of any such suit
and retain such counsel, the Underwriter or Underwriters or controlling person
or persons, defendant or defendants in the suit shall bear the fees and expenses
of any additional counsel thereafter retained by them. In the event that the
parties to any such action (including impleaded parties) include the Company or
the Guarantors and one or more Underwriters and any such Underwriter shall have
been advised by counsel chosen by it and satisfactory to the Company, as the
case may be, that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company or the
Guarantors, the Company or the Guarantors shall not have the right to assume the
defense of such action on behalf of such Underwriter and the Company and the
Guarantors will reimburse such Underwriter and any person controlling such
Underwriter as aforesaid for the reasonable fees and expenses of any counsel
retained by them, it being understood that the Company and the Guarantors shall
not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling persons,
which firm
21
shall be designated by the Representative in writing. The Company agrees to
notify the Representative promptly after the assertion of any claim against it,
any of its directors, any of its officers who signed the Registration Statement,
or any person who controls it within the meaning of Section 15 of the 1933 Act,
in connection with the issuance and sale, as the case may be, of the Securities.
(c) Indemnification of the Company, the Guarantors, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Guarantors, their directors, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company or the
Guarantors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company, the Guarantors or any person so indemnified based on the
Registration Statement, such preliminary prospectus or the Prospectus, or any
amendment or supplement thereto and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties given
to the Company and the Guarantors, and the Company and the Guarantors and each
person so indemnified shall have the rights and duties given to the Underwriters
by the provisions of Section 6(b) hereof.
(d) The indemnity agreements contained in this Section 6 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Company, the Guarantors, or any Underwriter or any
controlling person, and shall survive the delivery of the Securities to the
Underwriters.
(e) Settlement. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Guarantors
and the Underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
22
agreements incurred by the Company, the Guarantors and one or more of the
Underwriters, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount in the
Terms Agreement or appearing on the cover page of the Prospectus relating to the
Securities bears to the initial public offering price appearing thereon and the
Company and the Guarantors are responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company or any Guarantor, each officer of
the Company or any Guarantor who signed the Registration Statement, and each
person, if any, who controls the Company or any Guarantor within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company and the Guarantors. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the aggregate
principal amount of Initial Underwritten Securities set forth opposite their
respective names in the applicable Terms Agreement and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company, any Guarantor or any of their subsidiaries submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any Guarantor, and
shall survive delivery of and payment for the Underwritten Securities.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company and the Guarantors shall not be under any liability to any Underwriter
except as provided in Sections 4, 6 and 7 hereof; but if, for any other reason
the transactions contemplated herein are not consummated, the Company and the
Guarantors will reimburse the Underwriters for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Guarantors shall then be under no further
liability to the Underwriters in respect of the Securities not so delivered
except as provided in Sections 4, 6 and 7 hereof. Except as provided above, the
Company and the Guarantors shall not be liable to the Underwriters for damages
on account of any other consequential damages or loss of anticipated profits.
In all dealings hereunder, the representatives shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the representatives jointly or by the Representative on behalf
of the representatives.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by the
23
Representative upon the giving of 30 days' prior written notice of such
termination to the other party hereto.
(b) Terms Agreement. The Representative may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Prospectus, any Material Adverse Change, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to market the Preferred Securities or
to enforce contracts for the sale of the Preferred Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or a material disruption has occurred in commercial
banking or settlement or clearance services in the United States, or (iv) if a
banking moratorium has been declared by either Federal or New York authorities
or (v) if the rating accorded the Securities or any debt securities or other
security of the Company or any Guarantor, by any Rating Agency shall have been
decreased or withdrawn or a Rating Agency has publicly announced or given notice
of any intended or potential decrease in or withdrawal of any such rating or of
a possible change in any such rating that does not indicate the direction of the
possible change.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the Representative shall have the right, within 36
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 36-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in
the
24
proportions that their respective underwriting obligations under
such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to
be purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the
Company to sell, such Option Underwritten Securities on such Date of
Delivery) shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either the Representative or the Company shall
have the right to postpone the Closing Time or the relevant Date of Delivery, as
the case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at
________________________________, attention of _________________; and notices to
the Company or the Guarantors shall be directed to them at 00 Xxxx Xxxxx, X.X.
Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000, attention of Xxxxx X. Xxxxx Esq.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Guarantors, the Representative and, upon execution of such Terms Agreement,
any other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Guarantors and their respective successors and
the controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such Terms
Agreement or any provision herein or therein contained. This Underwriting
Agreement and such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
25
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
26
SECTION 14. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Very truly yours,
PSEG Power LLC
By:
----------------------------
Name:
Title:
PSEG Nuclear LLC
By:
----------------------------
Name:
Title:
PSEG Fossil LLC
By:
----------------------------
Name:
Title:
PSEG Energy Resources & Trade LLC
By:
----------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
[Representative]
By:
---------------------------------
Title:
27
Exhibit A
PSEG POWER LLC
(a Delaware Limited liability company)
Senior Debt Securities
TERMS AGREEMENT
______________, 200_
To: PSEG Power LLC
00 Xxxx Xxxxx, X0X
X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Ladies and Gentlemen:
We understand that PSEG Power LLC, a Delaware limited liability company
(the "Compasny"), proposes to issue and sell $____________ aggregate principal
amount of its senior debt securities (the "Debt Securities") (such securities
also being hereinafter referred to as the "Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities opposite their
names set forth below at the purchase price set forth below.
Underwriter Principal Amount
----------- ----------------
............................................ $_____________
............................................ _____________
Total...................................... $_____________
The Underwritten Securities shall have the following terms:
Title:
Rank: Senior unsecured debt securities.
Ratings: Xxxxx'x Investors Service, Inc.:
Standard & Poor's Rating Services:
Aggregate principal amount: $__________________
A-1
Aggregate principal amount of Option Underwritten Securities: _____________.
Denominations: $1,000 and integral multiples thereof.
Currency of payment: U.S. dollars.
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions: As specified in the Prospectus Supplement.
Sinking fund requirements: None.
Listing requirements: None.
Black-out provisions: Three business days from the date of this Agreement.
Fixed or Variable Price Offering: [Fixed Price Offering
Initial public offering
price per security: 100% of the principal
amount, plus accrued
interest, if any,
from ________, 200_].
Purchase price per ______% of principal
security: amount, plus accrued
interest, if any,
from _________, 200_.
Form: Global Note through the facilities of The Depository Trust Company.
Other terms and conditions:
A-2
Closing date and location: ____________, 200_, 9:00 A.M.
00 Xxxx Xxxxx
Xxxxxx, XX 00000
All of the provisions contained in the document attached as Annex I
hereto entitled "PSEG POWER LLC - Senior Debt Securities -- Underwriting
Agreement" are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
A-3
Please accept this offer no later than 7:00 o'clock P.M. (New York City
time) on _______________, 200_ by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
[Underwriters]
By: [Representative]
----------------------------------
Authorized Signatory
On behalf of itself and the other
Underwriters named above.
Accepted:
PSEG Power LLC
By:
---------------------------------
Name:
Title:
PSEG Nuclear LLC
By:
---------------------------------
Name:
Title:
PSEG Fossil LLC
By:
---------------------------------
Name:
Title:
PSEG Energy Resources & Trade LLC
By:
---------------------------------
Name:
Title:
A-4
Exhibit B
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly organized, is validly existing as a limited
liability company in good standing under the laws of the jurisdiction of its
organization, has the power and authority to own its property and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under, or as contemplated under, the Underwriting Agreement and the
applicable Terms Agreement and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
result in a Material Adverse Change. All of the issued membership interests in
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable and are directly owned by Public Service Enterprise Group
Incorporated, free and clear of all liens, encumbrances, equities or claims.
(2) Each direct and indirect subsidiary of the Company, including each
Guarantor, has been duly incorporated or organized, is validly existing as a
corporation or limited liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, has the power and authority
to own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not result in a Material Adverse
Change. All of the issued shares of capital stock or membership interests of
each direct and indirect subsidiary of the Company, including each Guarantor,
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company or a direct subsidiary of
the Company, as the case may be, free and clear of all liens, encumbrances,
equities or claims. None of the outstanding shares of capital stock or
membership interests of any Subsidiary was issued in violation of preemptive or
other similar rights of any security holder of such Subsidiary.
(3) If the Prospectus contains a "Capitalization" section, the authorized,
issued and outstanding membership interests of the Company is as set forth in
the column entitled "Actual" under such section (except for subsequent issuances
thereof, if any, pursuant to reservations, agreements or employee benefit plans
referred to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus). Such membership interests
have been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such membership interests was issued in
violation of preemptive or other similar rights of any security holder of the
Company.
(4) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company and each Guarantor.
ANNEX I-1
(5) The Notes being sold pursuant to the applicable Terms Agreement, have
been, or as of the date of such Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Notes, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law), and except further as enforcement thereof may be limited by requirements
that a claim with respect to any debt securities payable in a foreign or
composite currency (or a foreign or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States. Such
Notes will be in the form contemplated by, and each registered holder thereof is
entitled to the benefits of, the Indenture.
(6) The Guarantees being sold pursuant to the applicable Terms Agreement,
have been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to this Underwriting
Agreement and such Terms Agreement. Such Guarantees, when issued and
authenticated in the manner provided for in the Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of each applicable Guarantor,
enforceable against each applicable Guarantor in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any obligations payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States. Such
Guarantees will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(7) The Indenture has been, or prior to the issuance of the Securities
thereunder will have been, duly authorized, executed and delivered by the
Company and each Guarantor and, upon such authorization, execution and delivery,
will constitute a valid and binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law).
ANNEX I-2
(8) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the Indenture conform, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will conform,
in all material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(9) The information in the Prospectus under "Description of Debt
Securities" or any caption purporting to describe any such Securities, in the
Annual Report on Form 10-K under ____________________________, to the extent
that it constitutes matters of law, summaries of legal matters or the Company's
or any Guarantor's organizational documents, bylaws or legal proceedings, or
legal conclusions, has been reviewed by me and is correct in all material
respects.
(10) To the best of my knowledge, neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its Subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(11) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement, the Guarantees and the Indenture and
any other agreement or instrument entered into or issued or to be entered into
or issued by the Company or any Guarantor in connection with the transactions
contemplated in the Registration Statement and the Prospectus and the
consummation of the transactions contemplated in the Underwriting Agreement and
such Terms Agreement and in the Registration Statement and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company and the Guarantors with
their obligations thereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company, the Guarantors or any of their subsidiaries pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to me, to which the
Company, any Guarantor or any of their subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
operations of the Company, any Guarantor or any of their subsidiaries is
subject, nor will such action result in any violation of the provisions of the
organizational documents or by-laws of the Company, any Guarantor or any of
their subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, any Guarantor or any of their subsidiaries or any of their assets,
properties or operations.
(12) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company, any
Guarantor or any of their subsidiaries is a party or to which the assets,
properties or operations of the Company, any Guarantor or any of their
subsidiaries is subject, before or by any court or governmental agency
ANNEX I-3
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Change or which might reasonably be expected to materially and
adversely affect the assets, properties or operations thereof or the
consummation of the transactions contemplated under the Underwriting Agreement,
the applicable Terms Agreement, the Guarantees or the Indenture or the
performance by the Company or any Guarantor of its obligations thereunder.
(13) All descriptions in the Prospectus of contracts and other documents
to which the Company, any Guarantor or their subsidiaries are a party are
accurate in all material respects. To the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Prospectus or
to be filed as exhibits to the Registration Statement other than those described
or referred to therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto are correct in all
material respects.
(14) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(15) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of my knowledge, no stop
order suspending the effectiveness of the Registration Statement (or such Rule
462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which I express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(17) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which I express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder; and, on the basis of a
general review and discussion with certain officers and employees of the Company
but without independent check or verification, I have no reason to believe that
any of such documents, when such documents were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(18) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is
ANNEX I-4
necessary or required for the due authorization, execution or delivery by the
Company or any Guarantor of the Underwriting Agreement, the Guarantees or the
applicable Terms Agreement or for the performance by the Company or any
Guarantor of the transactions contemplated under the Prospectus, the
Underwriting Agreement, the Guarantees, such Terms Agreement or the Indenture,
other than under the 1933 Act, the 1933 Act Regulations, the 1939 Act and the
1939 Act Regulations, which have already been made, obtained or rendered, as
applicable.
(19) The Indenture has been duly qualified under the 1939 Act.
(20) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(21) The Company and each of the Guarantors is not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" or an entity "controlled" by an "investment
Company" required to be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
Nothing has come to my attention that would lead me to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which I make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of the Company's Annual
Report on Form 10-K with the Commission) became effective or at the date of the
applicable Terms Agreement, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to
which I make no statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and the Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
ANNEX I-5
