EXHIBIT 1.2(a)
EXECUTION COPY
Duquesne Light Company
First Mortgage Bonds, Series O
Underwriting Agreement
New York, New York
April 8, 2002
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Duquesne Light Company, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for which you
(the "Representatives") are acting as representatives, the principal amount of
its securities identified in Schedule I hereto (the "Bonds"), to be issued under
an Indenture of Mortgage and Deed of Trust (the "Original Mortgage"), dated as
of April 1, 1992, between the Company and JPMorgan Chase Bank, as trustee
(successor by merger to The Chase Manhattan Bank, successor in trust to Mellon
Bank, N.A., the "Trustee"), as heretofore amended and supplemented by several
supplemental indentures (the "Mortgage"), including Supplemental Indenture No.
18, dated as of April 1, 2002 (the "Supplemental Indenture"). To the extent that
there are no Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the Act
and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Bonds. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission a final prospectus and prospectus supplement in accordance with
Rules 415 and 424(b). As filed, such final prospectus and prospectus
supplement shall contain all required information, and, except to the extent
the Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x) and complies in all other
material respects with Rule 415.
(b) On the Effective Date, the Registration Statement did, and when the
Final Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture
Act and the applicable instructions, rules and regulations thereunder; at
the Execution Time and on the Effective Date, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date, the Mortgage did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the
instructions, rules and regulations thereunder; and, on the Effective Date,
the Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, --------
however, that the Company makes no representations or warranties as to (i)
that part ------- of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee (the "Form T-1"), (ii) any information
contained in the supplement to the Final Prospectus specified to have been
furnished or obtained from The Depository Trust Company or (iii) the
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
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inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
(c) The Company is not in violation of its Restated Articles of
Incorporation, as amended (the "Restated Articles"), or its By-Laws, as
amended (the "By-Laws"), or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, agreement or other instrument to which it is a party or by which
it may be bound, the effect of which is material to the Company, and neither
the execution or delivery of this Agreement, the consummation of the
transactions herein contemplated, the fulfillment of the terms hereof or of
the Mortgage or the Bonds, nor compliance with the terms and provisions
hereof or of the Mortgage or the Bonds will conflict with, or result in a
breach or violation of, or constitute a default under (i) any provision of
the Restated Articles, the By-Laws, or the terms of any indenture, contract,
agreement or other obligation, condition, covenant or instrument to which
the Company is a party or by which it may be bound or (ii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company of any
court or any federal or state governmental body having jurisdiction over the
Company or over its properties.
(d) The Mortgage has been duly authorized and has been duly qualified
under the Trust Indenture Act and, at the Closing Date, will have been duly
executed and delivered by the Company and will constitute a legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of mortgagees' and other creditors'
rights, including, without limitation, bankruptcy and insolvency laws, and
to general principles of equity.
(e) The Bonds have been duly and validly authorized and, at the Closing
Date, will have been duly executed by the Company and, when authenticated in
accordance with the provisions of the Mortgage and delivered to and paid for
by the Underwriters pursuant to this Agreement, the Bonds will constitute
legal, valid and binding obligations of the Company, subject, as to
enforcement, to laws relating to or affecting generally the enforcement of
mortgagees' and other creditors' rights, including, without limitation,
bankruptcy and insolvency laws, and to general principles of equity and will
be entitled to the security afforded by the Mortgage equally and ratably
with the bonds outstanding thereunder.
(f) The Securities Certificate filed by the Company with the
Pennsylvania Public Utility Commission with respect to the Bonds has been
duly registered, is in full force and effect and is not the subject of any
appeal or other proceeding. Each Bond issued as contemplated herein will
comply with the terms and conditions of such Securities Certificate.
(g) The Company is a corporation presently subsisting under the laws of
the Commonwealth of Pennsylvania, with full corporate power and authority to
own its properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is in good
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standing under the laws of each jurisdiction in which it owns or leases
substantial properties or in which the conduct of its business requires such
qualification.
(h) No consent, approval, authorization, filing with or order of any
court or other governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement except such as have been
obtained and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and sale of the Bonds in the
manner contemplated in this Agreement and in the Final Prospectus.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Bonds shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Bonds set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds shall be
made on the date and at the time specified in Schedule I hereto or at such time
on such later date not more than five Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Bonds being herein
called the "Closing Date"). Delivery of the Bonds shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the Bonds
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Bonds for sale to the public as set forth in
the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Bonds, the Company
will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and gives
you reasonable opportunity to comment. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
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applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission, (2)
when, prior to termination of the offering of the Bonds, any amendment to
the Registration Statement shall have been filed or become effective, (3) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information,
(4) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Bonds for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its
commercially reasonable best efforts to obtain as soon as possible the
withdrawal of any such stop order or suspension.
(b) If, at any time when a prospectus relating to the Bonds is required
to be delivered under the Act, any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective instructions, rules and regulations
thereunder, the Company promptly will (1) notify the Representatives of such
event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance and
(3) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request; provided, however, that should any such event
relate solely to activities of the Underwriters, then the Underwriters shall
assume the expense of preparing and furnishing any such amendment or
supplement.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto, other than those incorporated by reference) and
to each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an Underwriter
or dealer may be required by the Act, as many copies of each Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
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(e) The Company will arrange, if necessary, for the qualification of the
Bonds for sale under the laws of such jurisdictions as the Representatives
may designate, will maintain such qualifications in effect so long as
required for the distribution of the Bonds; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction, or to comply
with any other requirement reasonably deemed by the Company to be unduly
burdensome.
(f) Until the Business Day set forth on Schedule I hereto, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx Inc.,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position
or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any secured debt securities issued or
guaranteed by the Company (other than the Bonds) or publicly announce an
intention to effect any such transaction.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Bonds.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Bonds shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have requested and caused Xxxxxxx X. Xxxxxxx,
Esq., Assistant General Counsel of the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company is a corporation presently subsisting under the laws
of the Commonwealth of Pennsylvania, with full corporate power and
authority to own its properties and conduct its business as described in
the Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each other
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jurisdiction in which it owns or leases substantial properties or in
which the conduct of its business requires such qualification;
(ii) all the outstanding shares of capital stock of each material
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in the
Final Prospectus, all outstanding shares of capital stock of each
material subsidiary is owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth
in the Final Prospectus; and, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(iv) the Mortgage has been duly authorized, executed and delivered
by the Company, has been duly qualified under the Trust Indenture Act,
and constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject,
(1) as to enforcement, to laws relating to or affecting generally the
enforcement of mortgagees' and other creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and to general
principles of equity, (2) to laws relating to or affecting certain of
the remedies to enforce the security provided thereby, which laws,
however, in such counsel's opinion, do not render insufficient the
remedies necessary in order to realize the benefits of such security and
(3) to the following limitations: (a) the provisions of the Mortgage
subjecting to the lien thereof after-acquired real property of the
Company in some cases may not be effective against creditors or
purchasers for value without notice whose rights to such property
attached prior to recording of a supplemental indenture or other
instrument specifically subjecting such property to the lien of the
Mortgage and (b) the provisions of the Mortgage subjecting
after-acquired property of the Company to the lien thereof may be
affected by laws relating to preferential transfers of property during
certain periods prior to commencement of bankruptcy insolvency or
similar proceedings; the statements in the Final Prospectus under
"Supplemental Description of the Bonds--Security" and "Description of
the Bonds--Security--General" and "--Lien of the Mortgage" are correct
in all material respects; and the Mortgage conforms as to legal matters
in all material respects to the description of the terms thereof
contained in the Registration Statement and the Final Prospectus;
(v) the Bonds have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Mortgage and
delivered to and paid for by the Underwriters pursuant to this
Agreement, the Bonds will constitute legal, valid and binding
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obligations of the Company enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of mortgagees' and other creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and to general
principles of equity, and will be entitled to the security afforded by
the Mortgage equally and ratably with the securities outstanding
thereunder; and the Bonds conform as to legal matters to the description
of the terms thereof contained in the Registration Statement and the
Final Prospectus;
(vi) the Company has good and sufficient title to the real property
described in the Mortgage as subject to the lien thereof (other than
such real property as has been released from the lien of the Mortgage in
accordance with the terms thereof), subject only to the lien of the
Mortgage, Permitted Liens (as defined in the Mortgage) and to Liens (as
defined in the Mortgage) which have been granted by the Company to
persons prior to the date of the execution and delivery of the Original
Mortgage, and subject also, as to any property acquired by the Company
after the date of the execution and delivery of the Original Mortgage,
to vendors' Liens, purchase money mortgages and other Liens thereon at
the time of the acquisition thereof; and the Mortgage constitutes a
valid mortgage lien, subject only to the aforesaid liens, on all real
property and substantially all tangible personal property owned by the
Company at the date of the execution and delivery of the Supplemental
Indenture and used or to be used in or in connection with the purchase,
transmission, distribution or sale of electric energy by the Company
(except property expressly excluded from the lien thereof) and except
that (1) the provisions of the Mortgage subjecting to the lien thereof
after-acquired real property of the Company in some cases may not be
effective against creditors or purchasers for value without notice whose
rights to such property attach prior to recording of a supplemental
indenture specifically subjecting such property to the lien of the
Mortgage, (2) the provisions of the Mortgage subjecting after-acquired
property of the Company to the lien thereof may be affected by laws
relating to preferential transfers of property during certain periods
prior to commencement of bankruptcy, insolvency or similar proceedings
and (3) such counsel need express no opinion as to the title of the
Company to rights of way for its transmission and distribution
facilities and telephone lines;
(vii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement, or to be filed as an exhibit
thereto, which is not described in the Final Prospectus or filed as
required; and the statements included or incorporated by reference in
the Final Prospectus insofar as such statements summarize legal
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proceedings or material contracts or agreements relating to the Company
are fair summaries of such legal proceedings or material contracts or
agreements;
(viii) the Registration Statement and the Final Prospectus (except
as to the financial statements and other financial data contained
therein or incorporated by reference as to which such counsel need
express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the applicable instructions, rules and regulations
thereunder; the Registration Statement has become effective under the
Act; any required filings of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, have
been made in the manner and within the time period required by Rule
424(b); and to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened, and
(ix) such counsel has no reason to believe that the Registration
Statement, at the Effective Date or the date the Registration Statement
was last deemed amended, contained an untrue statement of a material
fact or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Final Prospectus, as of its date and on the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, that such counsel need not express any belief as to (1) the
financial statements and other financial data contained in or
incorporated by reference in the Registration Statement and the Final
Prospectus, (2) any information contained in the Registration Statement
and the Final Prospectus (or any supplement thereto) that was furnished
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto), (3) statements
contained in the Form T-1 filed as an exhibit to the Registration
Statement or (4) any information contained in the supplement to the
Final Prospectus specified to have been furnished or obtained from The
Depository Trust Company;
(x) this Agreement has been duly authorized, executed and delivered
by the Company;
(xi) the Securities Certificate filed by the Company with the
Pennsylvania Public Utility Commission with respect to the Bonds has
been duly registered and is sufficient to authorize the issuance and
sale of the Bonds as contemplated by the Mortgage and this Agreement,
and no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
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transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Bonds by the Underwriters in the manner contemplated in this Agreement
and in the Final Prospectus; and
(xii) neither the execution and delivery of the Mortgage, the issue
and sale of the Bonds, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof
will conflict with, result in a breach or violation of, or constitute a
default under, the Restated Articles or By-Laws of the Company, as
amended, or the terms of any indenture, contract, agreement or other
obligation, condition, covenant or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or is bound or
to which its or their property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the Commonwealth of
Pennsylvania or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other counsel
of good standing whom they believe to be reliable and who are satisfactory
to counsel for the Underwriters, (B) as to the qualification of the Mortgage
under the Trust Indenture Act, the compliance as to form of the Registration
Statement and the Final Prospectus with the requirements of the Act and the
Trust Indenture Act and the applicable instructions, rules and regulations
thereunder, the compliance by the Company with Rule 424(b) under the Act and
the conformity of the Mortgage and the Bonds with Rule 424(b) under the Act
and the conformity of the Mortgage and the Bonds with the respective
descriptions thereof in the Registration Statement and the Final Prospectus,
upon the opinion of Xxxxxx Xxxx & Priest LLP, special counsel to the
Company, and (C) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Xxxxxx Xxxx & Priest
LLP, counsel to the Company, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, (1) to the effect that (A) the
Bonds conform in all material respects to the description thereof contained
in the Final Prospectus and (B) the Company is not and, after giving effect
to the offering and sale of the Bonds and the application of the proceeds
thereof as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended; and
(2) with respect to the matters enumerated in paragraphs (iv) (provided
that, as to the statements in the Final Prospectus under "Supplemental
Description of the Bonds--Security" and "Description of the
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Bonds--Security--Lien of the Mortgage", such counsel need only opine that
such statements, insofar as they purport to summarize certain provisions of
the Mortgage, provide a fair summary of such provisions, and in giving such
opinion, may assume that the Mortgage would be enforced as written), (v),
(viii) (provided that such counsel need not express any opinion as to the
documents incorporated by reference in the Registration Statement and the
Final Prospectus or as to any information under the caption
"Capitalization"), (x) and (xii) (to the extent such paragraph (xii) opines
as to the Restated Articles of Incorporation, as amended, and By-Laws of the
Company) of subsection (b) of this Section 6 as the opinion of Xxxxxxx X.
Xxxxxxx, Esq. In said opinion, such counsel may rely on the opinion of
Xxxxxxx X. Xxxxxxx, Esq., as to all matters of the law of the Commonwealth
of Pennsylvania.
(d) The Representatives shall have received from Milbank, Tweed, Xxxxxx
& XxXxxx LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Bonds, the Mortgage, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial, accounting officer, Vice President
with responsibility for financial matters or Treasurer of the Company, dated
the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus, any
supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and the
Securities Certificate filed by the Company with the Pennsylvania Public
Utility Commission to permit the issue and sale of the Bonds has been
registered and is in full force and effect;
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
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forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto); and
(iv) no proceeding for the dissolution, merger, consolidation or
liquidation of the Company or for the sale of all or substantially all
of its assets is pending, or to the best of the signer's knowledge,
threatened, and no such proceeding is contemplated by the Company, other
than as described in the Registration Statement and the Final Prospectus
or the documents incorporated therein by reference.
(f) The Company shall have requested and caused Deloitte & Touche LLP to
have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable rules
and regulations adopted by the Commission thereunder and that they have
performed a review of the unaudited interim financial information of the
Company, if any, for the period ended and as of the date of the most recent
unaudited financial statements included or incorporated by reference in the
Registration Statement and Final Prospectus in accordance with Statement on
Auditing Standards No. 71, and stating in effect, except as provided in
Schedule I hereto, that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements, if any, made available by the Company and its subsidiaries,
limited review, in accordance with standards established under Statement
on Auditing Standards No. 71, of the unaudited interim financial
information incorporated by reference in the Registration Statement and
the Final Prospectus; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect
to the comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and audit committee of the
Company and the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events
subsequent to December 31, 2001, nothing came to their attention which
caused them to believe that:
12
(1) any unaudited financial statements included or incorporated
by reference in the Registration Statement and the Final Prospectus
do not comply as to form in all material respects with applicable
accounting requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus;
(2) with respect to the period subsequent to December 31, 2001,
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the capital stock, short-term
indebtedness or long-term debt of the Company and its subsidiaries
as compared with the amounts shown on December 31, 2001, or for the
period from January 1, 2002 to such specified date, there were any
decreases, as compared with the corresponding period in the
preceding year; in electric operating revenues, operating income,
income before interest charges, net income, or the ratio of earnings
to fixed charges of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said explanation is
not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges)
is not in conformity with the applicable disclosure requirements of
Regulation S-K; or
(4) the amounts included in any unaudited "capsule" information
included or incorporated by reference in the Registration Statement
and the Final Prospectus do not agree with the amounts set forth in
the unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements included
or incorporated by reference in the Registration Statement and the
Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
13
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information set
forth under the captions "Capitalization" "Selected Financial
Information" in the Final Prospectus, the information included or
incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated by reference in the
Registration Statement and the Final Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q, incorporated
by reference in the Registration Statement and the Final Prospectus,
agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or (ii)
any change, or any development involving a change, in or affecting the
condition (financial or otherwise), business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Bonds as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
14
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxxx Xxxx & Priest LLP, counsel for the Company, at
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Xxxxxxx Xxxxx Barney Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Bonds.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Bonds as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and (ii) such indemnity with respect to the
Final Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any of the Underwriters (or any person controlling any of the
Underwriters) from whom the person asserting any such loss, claim, damage or
liability purchased the Bonds which are the subject thereof if such person did
not receive a copy of the Final Prospectus (or the Final Prospectus as
supplemented) excluding documents incorporated therein by reference at or prior
to the confirmation of the sale of such Bonds to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Final Prospectus or any Preliminary Final
15
Prospectus was corrected in the Final Prospectus (or the Final Prospectus as
supplemented); provided that, copies of the Final Prospectus (or the Final
Prospectus as supplemented) were sufficiently and timely provided to you. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page regarding delivery of the
Bonds and under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of
the Bonds, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Final Prospectus and the
Final Prospectus constitute the only information furnished in writing by or
on behalf of the several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
16
(iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at
the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding. An indemnifying party will not be liable for any settlement
entered into by any indemnified party without the indemnifying party's
consent, but if settled with its written consent or if there is a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriters on the other from the
offering of the Bonds; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Bonds) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Bonds
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received
by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
17
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Bonds agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of Bonds
set forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Bonds set forth opposite the names of all the remaining
Underwriters) the Bonds which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the aggregate
principal amount of Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Bonds set forth in Schedule II hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Bonds, and if such nondefaulting Underwriters do not purchase all
the Bonds, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Bonds, if at any time prior to such time (i)
trading in the Common Stock of the Company or DQE, Inc. shall have been
suspended by the Commission or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Bonds as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
18
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Bonds. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at 000 Xxxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, attention of the Treasurer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Pittsburgh,
Pennsylvania.
"Commission" shall mean the Securities and Exchange Commission.
19
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Bonds that was first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Bonds and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
"Rule 415", "Rule 424" and "Rule 462" refer to such rules under the Act.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Duquesne Light Company
By:
---------------------------
Name:
Title:
21
The foregoing Agreement
is hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-----------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
22
SCHEDULE I
Underwriting Agreement dated April 8, 2002
Registration Statement No. 333-72408
Representative(s): Xxxxxxx Xxxxx Barney Inc.
Banc One Capital Markets, Inc.
First Union Securities, Inc.
ABN AMRO Incorporated
Tokyo-Mitsubishi International plc
BNY Capital Markets, Inc.
Mellon Financial Markets LLC
NatCity Investments, Inc.
Title, Purchase Price and Description of Bonds:
Title: First Mortgage Bonds, Series O
Principal amount: $200,000,000
Purchase price (include accrued
interest or amortization,
if any): $198,498,000
Sinking fund provisions: None
Redemption provisions: The Company may redeem the Bonds in whole
or in part at a make-whole price as set forth in
the Final Prospectus
Other provisions: Not applicable
Closing Date, Time and Location: April 15, 2002 at 10:00 a.m. at Xxxxxx Xxxx
& Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000
Type of Offering: Delayed
Date referred to in Section 5(f) after
which the Company may offer or sell
debt securities issued or guaranteed
by the Company without the consent
of the Representative(s): April 15, 2002
Modification of items to be covered by
the letter from Deloitte & Touche LLP
delivered pursuant to Section 6(e) at
the Execution Time: Not applicable
SCHEDULE II
PRINCIPAL AMOUNT
OF BONDS
UNDERWRITERS TO BE PURCHASED
------------ ---------------
Xxxxxxx Xxxxx Barney Inc..................... $80,000,000
Banc One Capital Markets, Inc................ 48,000,000
First Union Securities, Inc.................. 48,000,000
ABN AMRO Incorporated........................ 6,000,000
Tokyo-Mitsubishi International plc........... 6,000,000
BNY Capital Markets, Inc..................... 6,000,000
Mellon Financial Markets LLC................. 4,000,000
NatCity Investments, Inc..................... 4,000,000
------------
Total............................. $200,000,000
============
