PPL ENERGY SUPPLY, LLC UNDERWRITING AGREEMENT
Exhibit
1(a)
PPL
ENERGY SUPPLY, LLC
$50,000,000
6.20%
Senior Notes due 0000
XXXXXXXXXXXX
XXXXXXXXX
Xxx
Xxxx,
Xxx Xxxx
December
18, 2007
X.X.
Xxxxxx Securities Inc.
As
Representatives of the Several Underwriters,
c/o
X.X. Xxxxxx Securities Inc.
000
Xxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000.
Ladies
and Gentlemen:
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1.
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Introductory.
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PPL
Energy Supply, LLC, a limited liability company organized under the laws
of the
State of Delaware (the “Company”), proposes to issue and sell, and the
several Underwriters named in Section 3 hereof (the “Underwriters”),
for whom you are acting as representatives (the “Representatives”)
propose, severally and not jointly, to purchase, upon the terms and conditions
set forth herein, $50,000,000 aggregate principal amount of the Company’s 6.20%
Senior Notes due 2016 (the “Notes”) to be issued under an Indenture,
dated as of October 1, 2001, between the Company and The Bank of New York
(as successor to JPMorgan Chase Bank, N.A. (formerly The Chase Manhattan
Bank)),
as trustee thereunder (the “Trustee”), as heretofore supplemented and as
to be further supplemented by Supplemental Indenture No. 8 thereto relating
to the Notes (“Supplemental Indenture No. 8”) (as so supplemented,
the “Indenture”). Notwithstanding the references to
Underwriters and Representatives in the foregoing, in the event that there
shall
be only one underwriter named in Section 3 hereof, all references to
Underwriters shall be deemed to refer to the singular underwriter and in
the
event that this Agreement shall be addressed only to one representative,
all
references to Representatives shall be deemed to refer to the singular
representative of the Underwriters to whom this Agreement is
addressed.
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement on Form S-3 (No.
333-132574-01), including the related preliminary prospectus or prospectuses,
which registration statement became effective upon filing under Rule 462(e)
(“Rule 462(e)”) of the rules and regulations of the Commission (the
“Securities Act Regulations”) under the Securities Act of 1933, as
amended (the “Securities Act”). Such registration statement
covers the registration of the Notes under the Securities
Act. Promptly after the date of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of
Rule 430B (“Rule 430B”) of the Securities Act Regulations and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the
Securities Act Regulations. Any information included in such
prospectus that was omitted from such registration statement at the time
it
became effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as
“Rule 430B Information.” Each prospectus used in
connection with the offering of the Notes that omitted Rule 430B
Information (other than a “free writing prospectus” as defined in Rule 405
of the Securities Act Regulations that has not been approved in writing by
the
Company and the Representatives) is herein called a “preliminary
prospectus.” Such registration statement, at any given time,
including the amendments thereto to such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act at such time and the
documents otherwise deemed to be a part thereof or included therein by the
Securities Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it originally
became effective is herein called the “Original Registration
Statement.” The final prospectus in the form first furnished to
the Underwriters for use in connection with the offering of the Notes, including
the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act as of the date hereof and any preliminary
prospectuses that form a part thereof, is herein called the
“Prospectus.” For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus
or any
amendment or supplement to any of the foregoing shall be deemed to include
the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“XXXXX”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references
of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in
or
otherwise deemed by the Securities Act Regulations to be a part of or included
in the Registration Statement, any preliminary prospectus or the Prospectus,
as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or
the
Prospectus shall be deemed to mean and include the filing of any document
under
the Securities Exchange Act of 1934 (the “Exchange Act”) which is
incorporated by reference in or otherwise deemed by the Securities Act
Regulations to be a part of or included in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
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2.
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Representations
and Warranties.
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The
Company represents and warrants to each Underwriter as of the date hereof,
the
Applicable Time referred to in Section 2(b) hereof and as of the Closing
Date referred to in Section 5 hereof, and agrees with each Underwriter as
follows:
(A) At
the time of filing the Original Registration Statement, (B) at the time of
the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus), (C) at the time the
Company or any person acting on its behalf (within the meaning, for this
clause
only, of Rule 163(c) of the Securities Act Regulations) made any offer
relating to the Notes in reliance on the exemption of Rule 163 of the
Securities Act Regulations or made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Securities Act Regulations and (D) at
the date hereof, the Company was and is eligible to register and issue the
Notes
as a “well-known seasoned issuer” as defined in Rule 405 of the Securities
Act Regulations (“Rule 405”), including not having been and not
being an “ineligible issuer” as defined in Rule 405. The
Registration Statement is an “automatic shelf registration statement,” as
defined in Rule 405, and the Notes, since their registration on the
Registration Statement, have been and remain eligible for registration by
the
Company on a Rule 405 “automatic shelf registration
statement.” The Company has not received from the Commission any
notice pursuant to Rule 401(g)(2) of the Securities Act Regulations
objecting to the use of the automatic shelf registration statement
form.
(a) The
Original Registration Statement became effective upon filing under
Rule 462(e) of the Securities Act Regulations on March 20, 2006, and
any post-effective amendment thereto also became effective upon filing under
Rule 462(e). No stop order suspending the effectiveness of the
Registration Statement and/or any notice objecting to its use has been issued
under the Securities 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.
Any
offer
that is a written communication relating to the Notes made prior to the filing
of the Original Registration Statement by the Company or any person acting
on
its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the Securities Act Regulations) has been filed with the Commission in accordance
with the exemption provided by Rule 163 of the Securities Act Regulations
(“Rule 163”) and otherwise complied with the requirements of
Rule 163, including without limitation the legending requirement, to
qualify such offer for the exemption from Section 5(c) of the Securities
Act provided by Rule 163.
At
the
respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the Securities Act Regulations and at the
Closing Date, the Registration Statement complied and will comply in all
material respects with the requirements of the Securities Act and the Securities
Act Regulations and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”) and the rules and regulations thereunder, 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.
Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Date, 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.
Each
preliminary prospectus (including the prospectus or prospectuses filed as
part
of the Original Registration Statement or any amendment thereto) complied
when
so filed in all material respects with the Securities Act Regulations and
each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent
permitted by Regulation S-T.
As
of the
Applicable Time, neither (x) the Issuer General Use Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory
Prospectus and the Issuer Free Writing Prospectus, including the Final Term
Sheet prepared and filed pursuant to Section 6(b) identified on
Schedule A hereto, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited Use Free
Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
As
of the
time of the filing of the Final Term Sheet, the General Disclosure Package,
when
considered together with the Final Term Sheet, will not include any untrue
statement of a material fact or omit to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 5:45 p.m. (New York City time) on December 18, 2007 or such
other time as agreed by the Company and the Representatives.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the Securities Act Regulations
(“Rule 433”), relating to the Notes that (i) is required to be
filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i), whether or
not required to be filed with the Commission or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Notes or of the offering that does not reflect the final terms, in each case
in
the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to
Rule 433(g).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors,
as evidenced by its being specified in Schedule A hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Permitted
Free Writing Prospectus” means any free writing prospectus consented to in
writing by the Company and the Representatives. For the avoidance of
doubt, any free writing prospectus that is not consented to in writing by
the
Company does not constitute a Permitted Free Writing Prospectus and will
not be
an Issuer Free Writing Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to the Notes that
is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary
or
other prospectus deemed to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Notes or until
any
earlier date that the Company notified or notifies the Representatives as
described in Section 6(g), did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any
document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein or to any statements in or omissions
from the Statement of Eligibility of the Trustee under the
Indenture. At the effective date of the Registration Statement, the
Indenture conformed in all material respects to the Trust Indenture Act and
the
rules and regulations thereunder;
(b) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, has the
power
and authority to own its property and to conduct its business as described
in
the General Disclosure Package and the Prospectus and to enter and perform
its
obligations under this Agreement, the Indenture and the Notes 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 have a material adverse effect
on the
Company and its subsidiaries, taken as a whole;
(c) The
Notes have been duly authorized by the Company and, when issued, authenticated
and delivered in the manner provided for in the Indenture and delivered against
payment of the consideration therefor, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms, except
to
the extent limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or moratorium laws or by other laws now or hereafter in effect
relating to or affecting the enforcement of creditors’ rights and by general
equitable principles (regardless of whether considered in a proceeding in
equity
or at law), an implied covenant of good faith and fair dealing and consideration
of public policy, and federal or state securities law limitations on
indemnification and contribution (the “Enforceability Exceptions”); the
Notes will be in the forms established pursuant to, and entitled to the benefits
of, the Indenture; and the Notes will conform in all material respects to
the
statements relating thereto contained in the General Disclosure Package and
the
Prospectus;
(d) The
Indenture has been duly authorized by the Company and, when Supplemental
Indenture No. 8 is executed and delivered by the Company, and assuming due
authorization, execution and delivery of Supplemental Indenture No. 8 by
the Trustee, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, except
to
the extent limited by the Enforceability Exceptions; the Indenture conforms
and
will conform in all material respects to the statements relating thereto
contained in the Prospectus; and at the effective date of the Registration
Statement, the Indenture was duly qualified under the Trust Indenture
Act;
(e) The
Company is in compliance in all material respects with its Certificate of
Formation and Limited Liability Company Agreement;
(f) No
consent, approval, authorization, order, registration or qualification of
or
with any federal, state or local governmental agency or body or any federal,
state or local court is required to be obtained by the Company in connection
with its execution and delivery of this Agreement, the Indenture or the Notes,
or the performance by the Company of its obligations hereunder or thereunder,
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 distribution
of the
Notes by the Underwriters in the manner contemplated herein and in the
Prospectus;
(g) Neither
the execution and delivery of this Agreement or Supplemental Indenture
No. 8 or the issue and sale of the Notes, nor the consummation of any of
the transactions herein or therein contemplated, will violate any law or
any
regulation, order, writ, injunction or decree of any court or governmental
instrumentality applicable to the Company, or result in a breach or violation
of
any of the terms and provisions of, or constitute a default under, the Company’s
Certificate of Formation or Limited Liability Company Agreement, or any material
agreement or instrument to which the Company or any of its subsidiaries is
a
party or by which it is bound, except in each case for such violations, breaches
or defaults that would not in the aggregate have a material adverse effect
on
the Company’s ability to perform its obligations hereunder or
thereunder;
(h) The
consolidated financial statements of the Company and its subsidiaries, together
with the related notes and schedules, each set forth or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and
the Exchange Act and the related published rules and regulations thereunder;
such audited financial statements have been prepared in all material respects
in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and no material
modifications are required to be made to the unaudited interim financial
statements for them to be in conformity with generally accepted accounting
principles;
(i) This
Agreement has been duly and validly authorized, executed and delivered by
the
Company;
(j) Since
the respective dates as of which information is given in the General Disclosure
Package and the Prospectus, except as otherwise stated therein or contemplated
thereby, there has been no event or occurrence that would result in a material
adverse change in the financial position or results of operations of the
Company
and its subsidiaries taken as a whole;
(k) The
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus,
will
not be, an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended;
(l) Ernst &
Young LLP, who have audited certain financial statements of the Company and
its
consolidated subsidiaries as of December 31, 2006 and issued their report
with
respect to the audited consolidated financial statements and schedules included
and incorporated by reference in the Prospectus, is an independent registered
public accounting firm with respect to the Company during the periods covered
by
their reports within the meaning of the Securities Act and the Securities
Act
Regulations and the standards of the Public Company Accounting Oversight
Board
(United States) (“PCAOB”). PricewaterhouseCoopers LLP, who
have audited financial statements as of December 31, 2005 and for each of
the two years in the period ended December 31, 2005 of the Company and its
consolidated subsidiaries and issued their report with respect to the audited
consolidated financial statements and schedule included and incorporated
by
reference in the Prospectus, was the independent registered public accounting
firm for the Company as of December 31, 2005 and for each of the two years
in the period ended December 31, 2005 within the meaning of the Securities
Act and the Securities Act Regulations and the standards of the PCAOB;
and
(m) The
Company maintains systems of internal accounting controls sufficient to provide
reasonable assurance that transactions are executed in accordance with
management’s authorizations and transactions are recorded as necessary to permit
preparation of financial statements.
Each
of
you, as one of the several Underwriters, represents and warrants to, and
agrees
with, the Company, its directors and such of its officers as shall have signed
the Registration Statement, and to each other Underwriter, that the information
set forth in Schedule B hereto furnished to the Company by or through you
or on your behalf expressly for use in the Registration Statement or the
Prospectus does not contain an untrue statement of a material fact and does
not
omit to state a material fact in connection with such information required
to be
stated therein or necessary to make such information not
misleading.
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3.
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Purchase
and Sale of Notes.
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On
the
basis of the representations, warranties and agreements herein contained,
but
subject to the terms and conditions herein contained, the Company agrees
to sell
to the Underwriters, and the Underwriters agree, severally and not jointly,
to
purchase from the Company, at a purchase price of 98.345% of the principal
amount thereof, plus accrued interest, if any, from the date of the first
authentication of the Notes to the Closing Date (as hereinafter defined),
the
respective principal amounts of the Notes set forth below opposite the names
of
such Underwriters.
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Underwriters
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Principal
Amount
of
Notes
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X.X.
Xxxxxx Securities Inc.
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$50,000,000
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Total
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$50,000,000
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4.
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Public
Offering.
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The
several Underwriters agree that as soon as practicable, in their judgment,
they
will make a public offering of their respective portions of the Notes in
accordance with the terms set forth in the Prospectus.
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5.
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Delivery
and Payment.
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(a) The
Notes will be represented by one or more definitive global securities in
book-entry form which will be deposited by or on behalf of the Company with
The
Depository Trust Company (“DTC”) or its designated
custodian. The Company will deliver the Notes to you against payment
by you of the purchase price therefor (such delivery and payment herein referred
to as the “Closing”) by wire transfer of immediately available funds to
the Company’s account (“PPL Energy Supply, LLC” Xx. 0 000 000) xx Xxxxxx
Xxxx, XX (XXX Routing Number 000000000) by 10:00 A.M., New York
Time, on the Closing Date. Such payment shall be made upon delivery of the
Notes
for the account of X.X. Xxxxxx Securities Inc. at DTC. The Notes so
to be delivered will be in fully registered form in such authorized
denominations as established pursuant to the Indenture. The Company
will make the Notes available for inspection by you at the office of The
Bank of
New York, 000 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx not later than 10:00
A.M., New York Time, on the business day next preceding the Closing
Date.
(b) Each
Underwriter represents and agrees that, unless it obtains the prior written
consent of the Company and the Representatives, it has not and will not make
any
offer relating to the Notes that would constitute or would use an “issuer free
writing prospectus” as defined in Rule 433 or that would otherwise
constitute a “free writing prospectus” as defined in Rule 405 of the
Securities Act Regulations that would be required to be filed with the
Commission, other than information contained in the Final Term Sheet prepared
in
accordance with Section 6(b).
The
term
“Closing Date” wherever used in this Agreement shall mean December 20,
2007, or such other date not later than the seventh full business day thereafter
as maybe agreed upon in writing by the Company and you.
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6.
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Certain
Covenants of the Company.
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The
Company covenants and agrees with the several Underwriters as
follows:
(a) The
Company, subject to Section 6(b), will comply with the requirements of
Rule 430B and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement or new registration statement relating to the Notes
shall
become effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or the filing of a new registration statement or any
amendment or supplement to the Prospectus or any document incorporated by
reference therein or otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or such new
registration statement and/or any notice objecting to its use or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of
such purposes or of any examination pursuant to Section 8(e) of the
Securities Act concerning the Registration Statement and (v) if the Company
becomes the subject of a proceeding under Section 8A of the Securities Act
in connection with the offering of the Notes. The Company will effect
the filings required under Rule 424(b), in the manner and within the time
period required by Rule 424(b) (without reliance on
Rule 424(b)(8)). The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to
obtain the lifting thereof at the earliest possible moment. The
Company shall pay the required Commission filing fees relating to the Notes
within the time required by Rule 456(b)(1)(i) of the Securities Act
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the Securities Act Regulations (including,
if applicable, by updating the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to
the Registration Statement or on the cover page of a prospectus filed pursuant
to Rule 424(b)).
(b) The
Company will give the Representatives notice of its intention to file or
prepare
any amendment to the Registration Statement or new registration statement
relating to the Notes or any amendment, supplement or revision to either
any
preliminary prospectus (including any prospectus included in the Original
Registration Statement or amendment thereto at the time it became effective)
or
to the Prospectus, whether pursuant to the Securities Act, the Exchange Act
or
otherwise, and the Company will furnish the Representatives 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 to which the
Representatives shall reasonably object in writing. The Company will
give the Representatives notice of its intention to make any such filing
pursuant to the Exchange Act or Exchange Act Regulations from the Applicable
Time to the Closing Date and will furnish the Representatives with copies
of any
such documents a reasonable amount of time prior to such proposed filing
and
will not file or use any such document to which the Representatives shall
reasonably object in writing. The Company will prepare a final term
sheet (the “Final Term Sheet”) reflecting the final terms of the Notes,
in form and substance reasonably satisfactory to the Representatives, and
shall
file such Final Term Sheet as an “Issuer Free Writing Prospectus” prior to the
close of business two Business Days after the date hereof (“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 The City of New York); provided that the Company shall
furnish the Representatives with copies of any such Final Term Sheet a
reasonable amount of time prior to such proposed filing and will not use
or file
any such document to which the Representatives shall reasonably object in
writing.
(c) The
Company will furnish to each Underwriter, without charge, during the period
when
the Prospectus is required to be delivered under the Securities Act, as many
copies of the Prospectus and any amendments and supplements thereto as each
Underwriter may reasonably request.
(d) The
Company agrees that before amending and supplementing the preliminary prospectus
or the Prospectus, it will furnish to the Representatives a copy of each
such
proposed amendment or supplement and that it will not use any such proposed
amendment or supplement to which the Representatives reasonably object in
writing.
(e) The
Company will use its best efforts to qualify the Notes and to assist in the
qualification of the Notes by you or on your behalf for offer and sale under
the
securities or “blue sky” laws of such jurisdictions as you may designate, to
continue such qualification in effect so long as required for the distribution
of the Notes and to reimburse you for any expenses (including filing fees
and
fees and disbursements of counsel) paid by you or on your behalf to qualify
the
Notes for offer and sale, to continue such qualification, to determine its
eligibility for investment and to print any preliminary or supplemental “blue
sky” survey or legal investment memorandum relating thereto; provided
that the Company shall not be required to qualify as a foreign corporation
in
any State, to consent to service of process in any State other than with
respect
to claims arising out of the offering or sale of the Notes, or to meet any
other
requirement in connection with this paragraph (b) deemed by the Company to
be unduly burdensome;
(f) The
Company will promptly deliver to you a true and correct copy of the Registration
Statement as originally filed and of all amendments thereto heretofore or
hereafter filed, including conformed copies of all exhibits except those
incorporated by reference, and such number of conformed copies of the
Registration Statement (but excluding the exhibits), each related preliminary
prospectus, the Prospectus, and any amendments and supplements thereto, as
you
may reasonably request;
(g) If
at any time prior to the completion of the sale of the Notes by the Underwriters
(as determined by the Representatives), any event occurs as a result of which
the Prospectus, as then amended or 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 is necessary to amend or supplement the
Prospectus to comply with the Securities Act, the Company promptly (i) will
notify the Representatives of any such event; (ii) subject to the
requirements of paragraph (b) of this Section 6, will prepare an
amendment or supplement that will correct such statement or omission or effect
such compliance; and (iii) will supply any supplemented or amended
Prospectus to the several Underwriters without charge in such quantities
as they
may reasonably request; provided that the expense of preparing and
filing any such amendment or supplement (i) that is necessary in connection
with such a delivery of a prospectus more than nine months after the date
of
this Agreement or (ii) that relates solely to the activities of any
Underwriter shall be borne by the Underwriter or Underwriters or the dealer
or
dealers requiring the same; and providedfurther that you
shall, upon inquiry by the Company, advise the Company whether or not any
Underwriter or dealer which shall have been selected by you retains any unsold
Notes and, for the purposes of this subsection (g), the Company shall be
entitled to assume that the distribution of the Notes has been completed
when it
is advised by you that no Underwriter or such dealer retains any
Notes. If at any time following issuance of an Issuer Free Writing
Prospectus, there occurs an event or development as a result of which such
Issuer Free Writing Prospectus would conflict with the information contained
in
the Registration Statement (or any other registration statement related to
the
Notes) or the Statutory Prospectus or any preliminary prospectus would include
an untrue statement of a material fact or would omit to state a material
fact
necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company
will promptly notify the Representatives and will promptly amend or supplement,
at its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission;
(h) The
Company will, as soon as practicable, make generally available to its security
holders an earnings statement covering a period of at least twelve months
beginning after the “effective date of the registration statement” within the
meaning of Rule 158 under the Securities Act which will satisfy the
provisions of Section 11(a) of the Act;
(i) The
Company will pay or bear (i) all expenses in connection with the matters
herein required to be performed by the Company, including all expenses (except
as provided in Section 6(g) above) in connection with the preparation and
filing of the Registration Statement, the General Disclosure Package and
the
Prospectus, and any amendment or supplement thereto, and the furnishing of
copies thereof to the Underwriters, and all audits, statements or reports
in
connection therewith, and all expenses in connection with the issue and delivery
of the Notes to the Underwriters at the place designated in Section 5
hereof, any fees and expenses relating to the eligibility and issuance of
the
Notes in book-entry form and the cost of obtaining CUSIP or other identification
numbers for the Notes, all federal and state taxes (if any) payable (not
including any transfer taxes) upon the original issue of the Notes;
(ii) all expenses in connection with the printing, reproduction and
delivery of this Agreement and the printing, reproduction and delivery of
any
preliminary prospectus and each Prospectus, and (except as provided in
Section 6(g) above) any amendment or supplement thereto, to the
Underwriters; (iii) any and all fees payable in connection with the rating
of the Notes; and (iv) the reasonable fees and expenses of the Trustee,
including the fees and disbursements of counsel for the Trustee, in connection
with the Indenture and the Notes;
(j) During
the period from the date of this Agreement through the Closing Date, the
Company
shall not, without the Underwriters’ prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Notes, any security convertible into or exchangeable into
or
exercisable for Notes or any debt securities substantially similar to the
Notes
(except for the Notes issued pursuant to this Agreement); and
(k) The
Company represents and agrees that, unless it obtains the prior consent of
the
Representatives (such consent not to be unreasonably withheld), it has not
made
and will not make any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405 of the Securities Act
Regulations, required to be filed with the Commission. The Company
represents that it has treated or agrees that it will treat each Permitted
Free
Writing Prospectus as an “issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the requirements of
Rule 433 applicable to any Permitted Free Writing Prospectus, including
timely filing with the Commission where required, legending and record keeping
in accordance with the Securities Act Regulations.
|
7.
|
Conditions
of Underwriters’ Obligations.
|
The
obligations of the several Underwriters to purchase and pay for the Notes
on the
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein at the date of this
Agreement 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) [Intentionally
Omitted].
(b) You
shall have received from Ernst & Young LLP letters, dated the date of this
Agreement and the Closing Date, confirming that Ernst & Young LLP was the
independent registered public accounting firm for the Company’s statement as of
December 31, 2006 and is an independent registered public accounting firm
with respect to the Company within the meaning of the Securities Act and
the
Securities Act Regulations and that:
(i) in
their opinion, the consolidated financial statements and supplemental financial
statement schedule of the Company audited by them and included or incorporated
by reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and
the Exchange Act, and the related published rules and regulations
thereunder;
(ii) they
have read the minutes of the meetings of the Board of Managers of the Company
and Unanimous Written Consents of Managers in Lieu of Meetings of the Company
as
set forth in the minute books at a specified date not more than five business
days prior to the date of delivery of such letter;
(iii) they
have, if applicable, performed the procedures specified by the Public Company
Accounting Oversight Board (United States) for a review of interim financial
information as described in Statement on Auditing Standards No. 100,
Interim Financial Information, on the unaudited condensed interim
financial statements of the Company included or incorporated by reference
in the
Registration Statement and have read the unaudited interim financial data
for
the period from the date of the latest balance sheet included or incorporated
by
reference in the Registration Statement to the date of the latest available
interim financial data; and
(iv) on
the basis of the review referred to in clause (ii) above, a reading of the
latest available interim financial statements of the Company, they have
performed inquiries of certain officials of the Company who have responsibility
for financial and accounting matters regarding the specific items for which
representations are requested below and other specified procedures, nothing
came
to their attention that caused them to believe that:
(A) any
material modifications should be made to the unaudited condensed interim
financial statements included or incorporated by reference in the Registration
Statement for them to be in conformity with generally accepted accounting
principles;
(B) the
unaudited condensed interim financial statements included or incorporated
by
reference in the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
the
Exchange Act and the related published rules and regulations thereunder;
or
(C) at
the date of the latest available interim balance sheet of the Company and
at a
specified date not more than five days prior to the date of such letter,
there
was any increase in long-term debt or increase in notes payable to affiliates,
as compared with amounts shown on the latest consolidated balance sheet included
or incorporated by reference in the Registration Statement; except in all
cases
for changes, increases or decreases that the Registration Statement discloses
have occurred or may occur or that are described in such letter;
and
(v) they
have read certain financial and statistical amounts included or incorporated
by
reference in the Registration Statement and the Prospectus, which amounts
are
set forth in such letter and agreed such amounts to the Company’s accounting
records which are subject to controls over financial reporting or which have
been derived directly from such accounting records by analysis or computation
and have found such amounts to be in agreement with such results, except
as
otherwise specified in such letter and such other procedures as the Underwriters
may request and Ernst & Young LLP is willing to perform and report
upon.
(c) The
Registration Statement shall have become effective and on the Closing Date
no
stop order suspending the effectiveness of the Registration Statement and/or
any
notice objecting to its use shall have been issued under the Securities Act
or
proceedings therefor initiated 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 to the
Underwriters. A prospectus containing the Rule 430B Information
shall have been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on Rule 424(b)(8) (or
a post-effective amendment providing such information shall have been filed
and
become effective in accordance with the requirements of
Rule 430B). The Company shall have paid the required Commission
filing fees relating to the Notes within the time period required by
Rule 456(1)(i) of the Securities Act Regulations without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of
the Securities Act Regulations and, if applicable, shall have updated the
“Calculation of Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration
Statement or the cover page of a prospectus filed pursuant to
Rule 424(b).
(d) Subsequent
to the execution of this Agreement, there shall not have occurred (i) any
material adverse change not contemplated by the Prospectus (as it exists
on the
date hereof) in or affecting particularly the business or properties of the
Company which, in your judgment, materially impairs the investment quality
of
the Notes; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for
trading on such exchange, or any suspension of trading of any securities
of the
Company on any exchange or in the over-the-counter market; (iii) a general
banking moratorium declared by federal or New York authorities or a
material disruption in securities settlement, payment or clearance services
in
the United States; (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any
other substantial national or international calamity or emergency if, in
your
reasonable judgment, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical and inadvisable to proceed with
completion of the sale of and payment for the Notes and you shall have made
a
similar determination with respect to all other underwritings of debt securities
of utility or energy companies in which you are participating and have a
contractual right to make such a determination; or (v) any decrease in the
ratings of the Notes by Standard & Poor’s Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc. or Fitch, Inc.
or any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the
Notes.
(e) You
shall have received from Xxxxxxx X. XxXxxxx, Esq., Associate General
Counsel, or such other counsel for the Company as may be acceptable to you,
an
opinion in form and substance satisfactory to you, dated the Closing Date
and
addressed to you, as Representatives of the Underwriters, to the effect
that:
(i) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with power
and
authority to own its properties and conduct its business as described in
the
General Disclosure Package and the Prospectus;
(ii) The
Notes have been duly authorized, executed and delivered by the Company and,
assuming due authentication and delivery by the Trustee in the manner provided
for in the Indenture, and delivery against payment therefor, constitute valid
and binding obligations of the Company entitled to the benefits of the
Indenture, enforceable against the Company in accordance with their terms,
except to the extent limited by the Enforceability Exceptions;
(iii) The
Indenture has been duly authorized, executed and delivered by the Company,
and,
assuming due authorization, execution and delivery by the Trustee, constitutes
a
valid and legally binding obligation of the Company, enforceable against
the
Company in accordance with its terms, except to the extent limited by the
Enforceability Exceptions;
(iv) The
descriptions in the Registration Statement, the General Disclosure Package
and
the Prospectus of statutes, legal and governmental proceedings and contracts
and
other documents are accurate and fairly present the information required
to be
shown; and (1) such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement, the General
Disclosure Package or the Prospectus which are not described, or of any
contracts or documents of a character required to be described in the
Registration Statement, any Statutory Prospectus or the Prospectus or to
be
filed as exhibits to the Registration Statement which are not described and
filed as required and (2) nothing has come to the attention of such counsel
that would lead such counsel to believe either that the Registration Statement,
as of its applicable effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the
General Disclosure Package, as of the Applicable Time, or the Prospectus,
as
supplemented, as of the date of this Agreement, and as it shall have been
amended or supplemented, as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that such
counsel need express no opinion as to the financial statements and other
financial data contained in the Registration Statement, the General Disclosure
Package or the Prospectus;
(v) This
Agreement has been duly authorized, executed and delivered by the
Company;
(vi) No
consent, approval, authorization or other order of any public board or body
of
the United States or the Commonwealth of Pennsylvania (except for the
registration of the Notes under the Act and the qualification of the Indenture
under the Trust Indenture Act and other than in connection or compliance
with
the provisions of the securities or “blue sky” laws of any jurisdiction, as to
which such counsel need express no opinion) is legally required for the
authorization of the issuance and sale by the Company of the Notes in the
manner
contemplated herein and in the Prospectus; and
(vii) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Notes will not
contravene (i) the Company’s Certificate of Formation or Limited Liability
Company Agreement, (ii) to the best of such counsel’s knowledge, any
indenture, bank loan or credit agreement or other evidence of indebtedness
binding upon the Company or any agreement or other instrument binding upon
the
Company that, in the case of any such agreement specified in this
clause (ii) is material to the Company, or (iii) to the best of such
counsel’s knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company.
In
rendering such opinion, such counsel may rely as to matters governed by New
York
law upon the opinion of Xxxxx & XxXxxxx LLP referred to in
Section 7(f) of this Agreement.
(f) You
shall have received from Xxxxx & XxXxxxx LLP, counsel to the Company, an
opinion in form and substance satisfactory to you, dated the Closing Date
and
addressed to you, as Representatives of the Underwriters, to the effect
that:
(i) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware;
(ii) The
Notes have been duly authorized, executed and delivered by the Company and,
assuming due authentication and delivery by the Trustee in the manner provided
for in the Indenture, will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, except to the extent limited by the
Enforceability Exceptions;
(iii) The
Indenture has been duly authorized, executed and delivered by the Company,
is
duly qualified under the Trust Indenture Act and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance
with
its terms, except to the extent limited by the Enforceability
Exceptions;
(iv) (1) The
Registration Statement has become effective under the Securities Act, and
any
preliminary prospectus included in the General Disclosure Package at the
Applicable Time and the Prospectus were filed with the Commission pursuant
to
the subparagraph of Rule 424(b) specified in such opinion on the date or
dates specified therein, and the Issuer General Use Free Writing Prospectus
described in Schedule A attached hereto was filed with the Commission pursuant
to Rule 433 on the date specified in such opinion; (2) to the best of
the knowledge of such counsel after inquiry of the Company and the staff
of the
Commission, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for that
purpose have been instituted under the Securities Act; (3) the Registration
Statement, as of its effective date, the General Disclosure Package, as of
the
Applicable Time, the Prospectus, as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as to form in all
material respects with the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations thereunder; and (4) nothing has
come to the attention of such counsel that would lead such counsel to believe
that (i) the Registration Statement, as of its effective date, contained
any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not
misleading, (ii) the General Disclosure Package, as of the Applicable Time,
contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (iii) the
Prospectus, as supplemented, as of the date of this Agreement, and as it
shall
have been amended or supplemented, as of the Closing Date, contained or contains
any untrue statement of a material fact or omits or omitted to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no opinion as to the financial statements
and
other financial or statistical data contained or incorporated by reference
in
the Registration Statement, the General Disclosure Package or the
Prospectus;
(v) The
statements in the Prospectus under the caption “Description of the Notes”,
insofar as they purport to constitute summaries of certain terms of the
Indenture and the Notes, in each case constitute accurate summaries of such
terms of such document and securities, in all material respects;
(vi) This
Agreement has been duly authorized, executed and delivered by the
Company;
(vii) No
consent, approval, authorization or other order of any public board or body
of
the United States or the State of New York (except for the registration of
the
Notes under the Act and the qualification of the Indenture under the Trust
Indenture Act and other than in connection or compliance with the provisions
of
the securities or “blue sky” laws of any jurisdiction, as to which such counsel
need express no opinion) is legally required for the authorization of the
issuance and sale by the Company of the Notes in the manner contemplated
herein
and in the Prospectus; and
(viii) The
Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.
In
rendering such opinion, Xxxxx & XxXxxxx LLP may rely as to matters
governed by Pennsylvania law upon the opinion of Xxxxxxx X. XxXxxxx, Esq.
or such other counsel referred to in subsection (d).
(g) You
shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the
Underwriters, such opinion or opinions in form and substance satisfactory
to
you, dated the Closing Date, with respect to matters as you may 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. In rendering such
opinion or opinions, Xxxxxxxx & Xxxxxxxx LLP may rely as to matters governed
by Pennsylvania law upon the opinion of Xxxxxxx X. XxXxxxx, Esq. or such
other counsel referred to above.
(h) You
shall have received a certificate, dated the Closing Date, of the Controller
and
the Treasurer or Assistant Treasurer of the Company, in which such officers,
to
the best of their knowledge after reasonable investigation, shall state that
(i) the representations and warranties of the Company in this Agreement are
true and correct in all material respects as of the Closing Date, (ii) the
Company has complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement and/or any notice objecting to its use has been issued,
and no proceedings for that purpose have been instituted or are pending by
the
Commission, and (iv) subsequent to the date of the latest financial
statements in the Prospectus, there has been no material adverse change in
the
financial position or results of operations of the Company except as set
forth
or contemplated in the Prospectus or as described in such
certificate.
(i) You
shall have received from the Company a copy of the rating letters from Standard
& Poor’s Ratings Service, a Division of The XxXxxx-Xxxx Companies, Xxxxx’x
Investors Service, Inc. and Fitch, Inc. assigning ratings on the Notes of
at
least BBB, Baa2 and BBB+, respectively.
The
Company will furnish you as promptly as practicable after the Closing Date
with
such conformed copies of such opinions, certificates, letters and documents
as
you may reasonably request.
In
case
any such condition shall not have been satisfied, this Agreement may be
terminated by you upon notice in writing or by telegram to the Company without
liability or obligation on the part of the Company or any Underwriter, except
as
provided in Sections 6(e), 6(i), 9, 11 and 13 hereof.
|
8.
|
Conditions
of Company’s Obligations.
|
The
obligations of the Company to sell and deliver the Notes on the Closing Date
are
subject to the condition that at the Closing Date no stop order suspending
the
effectiveness of the Registration Statement and/or any notice objecting to
its
use shall be in effect or proceeding therefor shall have been instituted
or, to
the knowledge of the Company, shall be contemplated.
If
such
condition shall not have been satisfied, then the Company shall be entitled,
by
notice in writing or by telegram to you, to terminate this Agreement without
any
liability on the part of the Company or any Underwriter, except as provided
in
Sections 6(e), 6(i), 9, 11 and 13 hereof.
|
9.
|
Indemnification
and Contribution.
|
(a) The
Company agrees that it will indemnify and hold harmless each Underwriter
and the
officers and directors of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Securities Act,
against any loss, expense, claim, damage or liability to which, jointly or
severally, such Underwriter or such controlling person may become subject,
under
the Securities Act or otherwise, insofar as such loss, expense, claim, damage
or
liability (or actions in respect thereof) arises out of or is based upon
any
untrue statement or alleged untrue statement of any material fact contained
in
the Registration Statement, any Statutory Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or any amendment or supplement to any thereof,
or
arises out of or is based upon the omission or alleged omission to state
therein
any material fact required to be stated therein or necessary to make the
statements therein not misleading and, except as hereinafter in this
Section provided, the Company agrees to reimburse each Underwriter and each
person who controls any Underwriter as aforesaid for any reasonable legal
or
other expenses as incurred by such Underwriter or such controlling person
in
connection with investigating or defending any such loss, expense, claim,
damage
or liability; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, expense, claim, damage
or
liability arises out of or is based on an untrue statement or alleged untrue
statement or omission or alleged omission made in any such document in reliance
upon, and in conformity with, written information furnished to the Company
as
set forth in Schedule B hereto by or through you on behalf of any
Underwriter expressly for use in any such document or arises out of, or is
based
on, statements or omissions from the part of the Registration Statement which
shall constitute the Statement of Eligibility under the Trust Indenture Act
of
the Trustee under the Indenture.
(b) Each
Underwriter, severally and not jointly, agrees that it will indemnify and
hold
harmless the Company and its officers and directors, and each of them, and
each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, against any loss, expense, claim, damage or liability
to
which it or they may become subject, under the Securities Act or otherwise,
insofar as such loss, expense, claim, damage or liability (or actions in
respect
thereof) arises out of or is based on any untrue statement or alleged untrue
statement of any material fact contained in the Statutory Prospectus, any
Issuer
Free Writing Prospectus or the Prospectus, or any amendment or supplement
to any
thereof, or arises out of or is based upon the omission or alleged omission
to
state therein any material fact required to be stated therein or necessary
to
make the statements therein not misleading, in each case to the extent, and
only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any such documents in reliance upon,
and in conformity with, written information furnished to the Company as set
forth in Schedule B hereto by or through you on behalf of such Underwriter
expressly for use in any such document; and, except as hereinafter in this
Section provided, each Underwriter, severally and not jointly, agrees to
reimburse the Company and its officers and directors, and each of them, and
each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, for any reasonable legal or other expenses incurred
by it
or them in connection with investigating or defending any such loss, expense,
claim, damage or liability.
(c) Upon
receipt of notice of the commencement of any action against an indemnified
party, the indemnified party shall, with reasonable promptness, if a claim
in
respect thereof is to be made against an indemnifying party under its agreement
contained in this Section 9, notify such indemnifying party in writing of
the commencement thereof; but the omission so to notify an indemnifying party
shall not relieve it from any liability which it may have to the indemnified
party otherwise than under its agreement contained in this
Section 9. In the case of any such notice to an indemnifying
party, the indemnifying party shall be entitled to participate at its own
expense in the defense, or if it so elects, to assume the defense, of any
such
action, but, if it elects to assume the defense, such defense shall be conducted
by counsel chosen by it and satisfactory to the indemnified party and to
any
other indemnifying party that is a defendant in the suit. In the
event that any indemnifying party elects to assume the defense of any such
action and retain such counsel, the indemnified party shall bear the fees
and
expenses of any additional counsel retained by it. No indemnifying
party shall be liable in the event of any settlement of any such action effected
without its consent. Each indemnified party agrees promptly to notify each
indemnifying party of the commencement of any litigation or proceedings against
it in connection with the issue and sale of the Notes.
(d) If
any Underwriter or person entitled to indemnification by the terms of
subsection (a) of this Section 9 shall have given notice to the
Company of a claim in respect thereof pursuant to subsection (c) of this
Section 9, and if such claim for indemnification is thereafter held by a
court to be unavailable for any reason other than by reason of the terms
of this
Section 9 or if such claim is unavailable under controlling precedent, such
Underwriter or person shall be entitled to contribution from the Company
for
liabilities and expenses, except to the extent that contribution is not
permitted under Section 11(f) of the Securities Act. In
determining the amount of contribution to which such Underwriter or person
is
entitled, there shall be considered the relative benefits received by such
Underwriter or person and the Company from the offering of the Notes that
were
the subject of the claim for indemnification (taking into account the portion
of
the proceeds of the offering realized by each), the Underwriter or person’s
relative knowledge and access to information concerning the matter with respect
to which the claim was asserted, the opportunity to correct and prevent any
statement or omission, and any other equitable considerations appropriate
under
the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined
by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose).
(e) 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 9 (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 and 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 the failure to act by or on behalf of any indemnified
party.
(f) The
indemnity and contribution provided for in this Section 9 and the
representations and warranties of the Company and the several Underwriters
set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or the Company or their respective
directors or officers, (ii) the acceptance of any Notes and payment
therefor under this Agreement, and (iii) any termination of this
Agreement.
|
10.
|
[Intentionally
Omitted].
|
|
11.
|
Survival
of Certain Representations and
Obligations.
|
The
respective indemnities, agreements, representations and warranties of the
Company and of or on behalf of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of
any investigation, or statement as to the results thereof, made by or on
behalf
of any Underwriter or the Company or any of its officers or directors or
any
controlling person, and will survive delivery of and payment for the
Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Company shall remain responsible for
the
expenses to be paid or reimbursed by it pursuant to Section 6, and the
respective obligations of the Company and the Underwriters pursuant to
Section 9 hereof shall remain in effect.
|
12.
|
Notices.
|
The
Company shall be entitled to act and rely upon any statement, request, notice
or
agreement on behalf of each of the Underwriters if the same shall have been
made
or given by you jointly or by X.X. Xxxxxx Securities Inc. All statements,
requests, notices, consents and agreements hereunder shall be in writing,
or by
telegraph subsequently confirmed in writing, and, if to the Company, shall
be
sufficient in all respects if delivered or mailed to the Company at Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (facsimile: 610-774-5235),
Attn: Treasurer, and, if to you, shall be sufficient in all respects
if delivered or mailed to you at the address set forth on the first page
hereof
(a copy of which shall be sent to X.X. Xxxxxx Securities Inc., Attention:
High
Grade Syndicate (facsimile: 212-834-6081)); provided, however, that any
notice to an Underwriter pursuant to Section 9 hereof will also be
delivered or mailed to such Underwriter at the address, if any, of such
Underwriter furnished to the Company in writing for the purpose of
communications hereunder.
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13.
|
No
Advisory or Fiduciary
Relationship.
|
The
Company acknowledges and agrees that (a) the purchase and sale of the Notes
pursuant to this Agreement, including the determination of the public offering
price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction, each
Underwriter is and has been acting solely as a principal and is not the agent
or
fiduciary of the Company, or its stockholders, creditors, employees or any
other
party, (c) no Underwriter has assumed or will assume an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such
Underwriter has advised or is currently advising the Company on other matters)
and no Underwriter has any obligation to the Company with respect to the
offering contemplated hereby except the obligations expressly set forth in
this
Agreement, (d) the Underwriters and their respective affiliates may be
engaged in a broad range of transactions that involve interests that differ
from
those of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
|
14.
|
Parties
in Interest.
|
This
Agreement shall inure solely to the benefit of the Company and the Underwriters
and, to the extent provided in Section 9 hereof, to any person who controls
any Underwriter, to the officers and directors of the Company, and to any
person
who controls the Company, and their respective successors. No other
person, partnership, association or corporation shall acquire or have any
right
under or by virtue of this Agreement. The term “successor” shall not
include any assignee of an Underwriter (other than one who shall acquire
all or
substantially all of such Underwriter’s business and properties), nor shall it
include any purchaser of Notes from any Underwriter merely because of such
purchase.
|
15.
|
Representation
of Underwriters.
|
Any
action under this Agreement taken by the Representatives will be binding
upon
all the Underwriters.
|
16.
|
Counterparts.
|
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
|
17.
|
Effectiveness.
|
This
Agreement shall become effective upon the execution and delivery hereof by
the
parties hereto.
|
18.
|
Applicable
Law.
|
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
|
19.
|
Headings.
|
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
Please
confirm that the foregoing correctly sets forth the agreement between us
by
signing in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Yours
very truly,
PPL
ENERGY SUPPLY, LLC
By: _________________________________
Name:
Title:
The
foregoing Underwriting Agreement is hereby
confirmed
and accepted as of the date first above written.
X.X.
XXXXXX SECURITIES INC.
________________________________
Name:
Name:
Title:
SCHEDULE A
Issuer
General Use
Free
Writing Prospectus
Final
Terms and Conditions, dated December 18, 2007, for $50,000,000 aggregate
principal amount of 6.20% Senior Notes due 2016, filed with the Commission
by
the Company pursuant to Rule 433 under the Securities Act.
SCHEDULE B
Information
Represented and Warranted by the Underwriters
Pursuant
to Section 2 of Underwriting Agreement
|
1.
|
The
third paragraph under the caption “Underwriting” in the Prospectus
Supplement;
|
|
2.
|
The
second and third sentences of the fourth paragraph under the caption
“Underwriting” in the Prospectus Supplement;
and
|
|
3.
|
The
fifth, sixth and seventh paragraphs under the heading “Underwriting” in
the Prospectus Supplement.
|
