EXHIBIT 1.1
PPL CAPITAL FUNDING, INC.
$
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MEDIUM-TERM NOTES, SERIES [ ]
-
UNCONDITIONALLY GUARANTEED
AS TO PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
AND INTEREST BY PPL CORPORATION
DISTRIBUTION AGREEMENT
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, 2000
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[name]
[address]
[name]
[address]
[name]
[address]
[name]
[address]
Ladies and Gentlemen:
PPL Capital Funding, Inc. (formerly known as PP&L Capital Funding,
Inc.), a Delaware corporation (the "Company"), and PPL Corporation (formerly
known as PP&L Resources, Inc.), a Pennsylvania corporation (the "Guarantor"),
confirm their agreement with [insert names of Agents] (each, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes, Series [ ] (the "Notes"). The Notes will be
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unconditionally guaranteed as to payment of principal, premium, if any, and
interest by the Guarantor pursuant to guarantees of the Guarantor (the
"Guarantees"). Certain terms of the Notes are set forth in Schedule A hereto.
The Notes are to be issued pursuant to an Indenture, dated as of
November 1, 1997, as amended or modified from time to time (the "Base
Indenture"), among the Company, the Guarantor and The Chase Manhattan Bank, as
trustee (the "Trustee"), as supplemented by a Supplemental Indenture No. 5,
dated as of , 2000 (the "Supplemental Indenture" and, together with
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the Base Indenture, the "Indenture"), among the Company, the Guarantor and the
Trustee. As of the date hereof, the Company has authorized the issuance and sale
of up to $ aggregate principal amount of Notes to or through the
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Agents pursuant to the terms of this Agreement. It is understood, however, that
the Company may from time to time authorize the issuance of additional Notes and
that such additional Notes may be sold to or through the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors and other purchasers and
for the sale of Notes by the Company directly to investors through one or more
agents (as may from time to time be agreed to by the Company and the applicable
Agent), in which case the applicable Agent will act as an agent of the Company
in soliciting offers for the purchase of Notes.
In connection with the foregoing, the Company and the Guarantor have
filed with the Securities and Exchange Commission (the "Commission") a joint
registration statement on Form S-3 (Nos. 333- , 333- -01 and
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333- -02) for the registration of debt securities, including the Notes and
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the Guarantees, under the Securities Act of 1933, as amended (the "1933 Act")
and the offering thereof from time to time in accordance with Rule 415 of the
rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement (as so amended, if applicable) has
been declared effective by the Commission and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement (as so amended, if applicable) is referred to herein
as the "Registration Statement"; and the final prospectus and all applicable
amendments or supplements thereto (including the final prospectus supplement
relating to the offering of Notes), in the form first furnished to the
applicable Agent(s) and to be transmitted for filing pursuant to Rule 424(b) of
the 1933 Act Regulations, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to any acceptance by the Company of an
offer for the purchase of Notes; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
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Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. For purposes of this Agreement,
all references to the Registration Statement or Prospectus or to any amendment
or supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"). All references in this Agreement to financial statements and
schedules and other information that is "contained," "included" or "stated" in
the Registration Statement or Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information that are or are deemed to be incorporated by
reference in the Registration Statement or Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to the
Registration Statement or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act that is or is deemed to be
incorporated by reference in the Registration Statement or Prospectus, as the
case may be.
1. Appointment as Agent.
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(a) Appointment. On the basis of the representations, warranties and
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agreements herein contained, but subject to the terms and conditions herein
contained and subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf (and not through any Agent),
offers for the purchase of Notes may be solicited by an Agent as agent for the
Company at such times and in such amounts as such Agent deems advisable. The
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Company may appoint additional agents in connection with the offering of the
Notes; provided that (i) the Company promptly notifies the Agents of such
appointment and (ii) the commission paid to any such additional agent with
respect to the sale of Notes by the Company as a result of a solicitation made
by such additional agent does not exceed that percentage specified in Schedule B
hereto of the aggregate principal amount of such Notes sold by the Company; and
provided further that, unless the appointment of such additional agent is
expressly limited to the solicitation of offers to purchase a specified
principal amount of Notes on specified terms, such additional agent enters into
an agreement with the Company making such agent an Agent under this Agreement or
enters into an agreement with the Company on terms which are substantially
similar to those contained in this Agreement, which agreement shall include
appropriate changes to reflect the arrangements between the Company and such
additional agent.
(b) Sale of Notes. The Company shall not sell or approve the
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solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate principal amount of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any obligation
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to purchase Notes from the Company as principal. However, absent an agreement
between an Agent and the Company that such Agent shall be acting solely as an
agent for the Company, such Agent shall be deemed to be acting as principal in
connection with any offering of Notes by the Company through such Agent.
Accordingly, the Agents, individually or in a syndicate, may agree from time to
time to purchase Notes from the Company as principal for resale to investors and
other purchasers determined by such Agents. Any purchase of Notes from the
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Company by an Agent as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon between an Agent and the
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Company, such Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. Such Agent will
communicate to the Company, orally or in writing, each offer for the purchase of
Notes solicited by it on an agency basis other than those offers rejected by
such Agent. Such Agent shall have the right, in its discretion reasonably
exercised, to reject any offer for the purchase of Notes, in whole or in part,
and any such rejection shall not be deemed a breach of its agreement contained
herein. The Company may accept or reject any offer for the purchase of Notes, in
whole or in part. Such Agent shall make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. Such
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes against payment tendered by a purchaser whose offer
has been solicited by such Agent on an agency basis and accepted by the Company,
the Company shall hold such Agent harmless against any loss, claim or damage
arising from or as a result of such default by the Company.
(e) Reliance. The Company and the Agents agree that any Notes
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purchased from the Company by one or more Agents as principal shall be
purchased, and any Notes the placement of which an Agent arranges as an agent of
the Company shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Company contained herein and on the
terms and conditions and in the manner provided herein.
2. Representations and Warranties.
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(a) The Company and the Guarantor jointly and severally represent and
warrant to, and agree with, each Agent as of the date hereof, as of the date of
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each acceptance by the Company of an offer for the purchase of Notes (whether to
such Agent as principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through such Agent as
agent) (the date of each such delivery to such Agent as principal is referred to
herein as a "Settlement Date"), and as of any time that the Registration
Statement or the Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a "Representation Date"), that:
(i) The Registration Statement, when it became effective and at each
Representation Date, and the Prospectus and any amendment or supplement
thereto, when filed or transmitted for filing with the Commission and at
each Representation Date, complied or will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations"), and did not or 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; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with the information furnished to the Company in writing by the
Agents expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which constitutes the Trustee's
Statement of Eligibility under the 1939 Act (the "T-1").
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or Prospectus, at the time they
were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the "1934 Act
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Regulations"), and, when read together with the other information in the
Prospectus, at the date hereof, at the date of the Prospectus and at each
Representation Date, 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by or through any Agent expressly for
use in the Registration Statement or Prospectus.
(iii) The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with corporate power and authority to enter into and perform
its obligations under this Agreement, the Indenture and the Guarantees.
(iv) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Indenture and the Notes; and the Company is and will be
treated as a consolidated subsidiary of the Guarantor pursuant to generally
accepted accounting principles.
(v) Neither the Guarantor nor the Company is an "investment company"
that is required to be registered under the Investment Company Act of 1940,
as amended (the "1940 Act").
(vi) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Guarantor.
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(vii) The Indenture has been duly authorized, executed and delivered
by the Company and the Guarantor and, assuming due authorization, execution
and delivery by the Trustee, constitutes a valid and binding agreement of
the Company and the Guarantor enforceable in accordance with its terms
except to the extent that enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, or reorganization, moratorium, and other
similar laws relating to or affecting the enforcement of creditors' rights
and by general equity principles, regardless of whether enforcement is
considered in a proceeding at law or in equity (the "Bankruptcy
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 1939 Act.
(viii) The Notes have been duly authorized 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 that enforcement thereof may be limited by
the Bankruptcy 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 Prospectus.
(ix) The Guarantees have been duly authorized and, when duly executed
pursuant to the Indenture and delivered, will constitute valid and binding
obligations of the Guarantor enforceable in accordance with their terms
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; the Guarantees will be in the forms established
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pursuant to the Indenture; and the Guarantees will conform in all material
respects to the statements relating thereto contained in the Prospectus.
(x) Since the respective dates as of which information is given in the
Registration Statement 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, or any development involving a
material adverse change, in the financial position or results of operations
of the Guarantor and its subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(xi) The Medium-Term Note Program under which the Notes are issued
(the "Program"), as well as the Notes, are rated Baa2 by Xxxxx'x Investors
Service, Inc. and BBB by Standard & Poor's Ratings Service, or such other
rating as to which the Company or the Guarantor shall have most recently
notified the Agents pursuant to Section 5(a) hereof.
(b) Each of the several Agents represents and warrants to, and agrees
with, the Company and the Guarantor, their respective directors and such of
their respective officers who shall have signed the Registration Statement, and
to each other Agent, that the information furnished in writing to the Company
and the Guarantor by such Agent 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.
(c) Additional Certifications. Any certificate signed by any officer
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of the Company or the Guarantor and delivered to one or more Agents or to
counsel for the Agents in connection with an offering of Notes to one or more
Agents as principal or through an Agent as agent shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be,
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to such Agent or Agents as to the matters covered thereby on the date of such
certificate.
3. Purchases as Principal; Solicitations as Agent.
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(a) Purchases as Principal. Notes purchased from the Company by the
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Agents, individually or in a syndicate, as principal shall be made in accordance
with terms agreed upon between such Agent or Agents and the Company in a
separate agreement (which may be an oral agreement confirmed in writing between
the applicable Agent and the Company). Each such separate agreement is herein
referred to as a "Terms Agreement". Each such Terms Agreement, whether oral (and
confirmed in writing, which may be a facsimile transmission) or in writing,
shall include such information (as applicable) as is specified in Schedule A
hereto. An Agent's commitment to purchase Notes as principal shall be deemed to
have been made on the basis of the representations, warranties and agreements of
the Company herein contained, but subject to the terms and conditions herein
contained. Unless the context otherwise requires, references herein to "this
Agreement" shall include the applicable Terms Agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule B hereto. The
Agents may engage the services of any broker or dealer in connection with the
resale of the Notes purchased by them as principal and may allow all or any
portion of the discount received from the Company in connection with such
purchases to such brokers or dealers. At the time of each Terms Agreement to
purchase Notes from the Company by one or more Agents as principal, such Agent
or Agents shall specify the requirements for the comfort letter, opinions of
counsel and officers' certificate pursuant to Section 8 hereof.
(b) Solicitations as Agent. On the basis of the representations,
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warranties and agreements herein contained, but subject to the terms and
conditions herein contained, when agreed by the Company and an Agent, such
Agent, as an agent of the Company, will use its reasonable efforts to solicit
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offers for the purchase of Notes upon the terms set forth in the Prospectus. The
Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed upon between the Company
and such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through an Agent, as an agent
of the Company, commencing at any time for any period of time or permanently. As
soon as practicable after receipt of instructions from the Company, such Agent
will suspend solicitation of offers for the purchase of Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent, as an
agent of the Company, at the time of settlement of any such sale, as set forth
in Schedule B hereto.
(c) Administrative Procedures. The purchase price, interest rate or
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formula, maturity date and other terms of the Notes specified in Schedule A
hereto (as applicable) shall be agreed upon between the Company and the
applicable Agent(s) and specified in a pricing supplement to the Prospectus
(each, a "Pricing Supplement") to be prepared by the Company in connection with
each sale of Notes. Except as otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in denominations of $1,000 or any larger
amount that is an integral multiple of $1,000. Administrative procedures with
respect to the issuance and sale of the Notes (the "Procedures") shall be agreed
upon from time to time among the Company, the Agents and the Trustee. The
initial Procedures, which are set forth in Schedule C hereto, shall remain in
effect until changed by agreement among the Company, the Agents and the Trustee.
The Agents and the Company agree to perform, and the Company agrees to request
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the Trustee to perform, their respective duties and obligations specifically
provided to be performed by them in the Procedures.
4. Delivery and Payment for Notes Sold through an Agent as Agent.
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Delivery of Notes sold through an Agent as an agent of the Company
shall be made by the Company to such Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, such Agent shall promptly notify the Company
and deliver such Note to the Company and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure has occurred for any reason other than default by such
Agent in the performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
5. Certain Covenants of the Company and the Guarantor.
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Each of the Company and the Guarantor jointly and severally covenant
with the several Agents as follows:
(a) To notify the Agents promptly, and confirm the notice in writing,
of (i) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, (ii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement, or the initiation of
proceedings for that purpose, and to make every reasonable effort to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued, and (iii) any change in the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt securities
(including the Notes) of the Company or the Guarantor, or the public
announcement by any nationally recognized statistical rating organization that
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it has under surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities;
(b) To advise the Agents, or Xxxxxxxx & Xxxxxxxx as counsel to the
Agents, promptly of any such filing, and to advise the Agents, or Xxxxxxxx &
Xxxxxxxx, as counsel to the Agents, promptly of any proposal to file or prepare
(i) any amendment to the Registration Statement (including any post-effective
amendment), (ii) any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for the determination of the variable
terms of the Notes or relating solely to the offering of securities other than
the Notes), or (iii) any document that would as a result thereof be incorporated
by reference in the Prospectus whether pursuant to the 1933 Act, the 1934 Act or
otherwise; and will furnish the Agents with copies of any such amendment,
supplement or other document a reasonable amount of time prior to such proposed
filing or use, as the case may be;
(c) To endeavor, in cooperation with the Agents, to qualify the Notes
for offer and sale under the securities or blue sky laws of such states and the
other jurisdictions of the United States as the Agents may from time to time
designate, to continue such qualifications in effect so long as required for the
distribution of the Notes and to reimburse the Agents for any expenses
(including filing fees and reasonable fees and disbursements of counsel) paid by
the Agents or on their behalf to qualify the Notes for offer and sale, to
continue such qualification, to determine the eligibility of the Notes for
investment and to print the memoranda relating thereto; provided that neither
the Company nor the Guarantor shall be required to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified, to consent to
service of process in any jurisdiction 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 (c) deemed by them to be unduly burdensome;
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(d) To deliver promptly to the Agents signed copies 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), the Prospectus, and any
amendments and supplements thereto, as the Agents may reasonably request;
(e) To prepare, with respect to any Notes to be sold to or through
one or more Agents pursuant to this Agreement, a Pricing Supplement with respect
to such Notes in a form previously approved by the Agents. The Company will
deliver such Pricing Supplement no later than 11:00 A.M., New York City time, on
the business day following the date of the Company's acceptance of the offer for
the purchase of such Notes and will file such Pricing Supplement pursuant to
Rule 424(b) under the 1933 Act within the time periods prescribed thereunder,
and, in any event, not later than the close of business of the Commission on the
fifth business day after the date on which such Pricing Supplement is first
used;
(f) Except as otherwise provided in subsection (l) of this Section 5,
if at any time during the term of this Agreement any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
not misleading, or if it shall be necessary at any time to amend the
Registration Statement or amend or supplement the Prospectus to comply with the
1933 Act or the 1933 Act Regulations, to advise the Agents immediately,
confirmed in writing, to cease the solicitation of offers for the purchase of
Notes in their capacity as agents and to cease sales of any Notes they may then
own as principal, and to promptly prepare and file with the Commission, subject
to Section 5(b) hereof, such amendment or supplement which will correct such
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statement or omission or an amendment which will effect such compliance;
provided, however, that the cost of any amendment or supplement which relates
solely to the activities of any Agent shall be borne by the Agent or Agents
requiring the same;
(g) Except as otherwise provided in subsection (l) of this Section 5,
on or prior to the date on which there shall be released to the general public
interim financial statement information related to the Company or the Guarantor
with respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal year, or
financial information included in the audited consolidated financial statements
of the Company or the Guarantor for the preceding fiscal year, the Company and
the Guarantor shall furnish such information to the Agents;
(h) As soon as practicable, the Guarantor will 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 1933 Act which will satisfy
the provisions of Section 11(a) of the 1933 Act;
(i) The Company and the Guarantor during the period when the
Prospectus is required to be delivered under the 1933 Act, will file all
documents required to be filed with the Commission pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act within the time periods prescribed by the
1934 Act and the 1934 Act Regulations;
(j) Unless otherwise agreed upon between one or more Agents acting as
principal and the Company, between the date of any Terms Agreement by such
Agent(s) to purchase Notes from the Company and the Settlement Date with respect
thereto, the Company will not, without the prior written consent of such
Agent(s), issue, sell, offer or contract to sell, grant any option for the sale
of, or otherwise dispose of, any debt securities of the Company with maturities
and other terms substantially similar to the Notes being sold pursuant to such
Terms Agreement (other than the Notes that are to be sold pursuant to such Terms
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Agreement, notes to banks under any revolving credit agreement of the Company or
commercial paper in the ordinary course of business);
(k) The Company will apply the net proceeds from the sale of the
Notes for the purposes set forth in the Prospectus;
(l) The Company shall not be required to comply with the provisions
of subsections (f) or (g) of this Section 5 during any period from the time the
Agents shall have suspended solicitation of offers for the purchase of Notes in
their capacity as agents pursuant to a request from the Company until the time
the Company shall determine that solicitation of offers for the purchase of
Notes should be resumed; provided, however, that compliance with such
subsections shall be required for any portion of such period during which an
Agent shall hold any Notes as principal purchased pursuant to a Terms Agreement;
and provided further that the Agents shall, upon inquiry by the Company or the
Guarantor, advise the Company and the Guarantor whether or not any of them
retains any Notes for purposes of this subsection (1), and from the 30th day
immediately following the issuance of such Notes, unless otherwise advised by an
Agent, the Company and the Guarantor shall be entitled to assume that the
distribution of such Notes is complete; and
(m) The Company will comply with the conditions set forth in Rule
3a-5 under the 1940 Act ("Rule 3a-5"), necessary for the Company to not be
considered an "investment company" under the 1940 Act.
6. Payment of Expenses.
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The Company will pay or bear (i) all expenses in connection with the
matters herein required to be performed by the Company or the Guarantor,
including all expenses in connection with the preparation and filing of the
Registration Statement and the Prospectus, and any amendment or supplement
thereto, and the furnishing of copies thereof to the Agents, and all audits,
statements or reports in connection therewith, and all expenses in connection
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with the issue and delivery of the Notes and the related Guarantees, including
the reasonable fees and disbursements of counsel to the Agents incurred in
connection with the establishment of the Program and incurred from time to time
in connection with the transactions contemplated hereby, any fees and expenses
relating to the eligibility and issuance of 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 issue of the Notes or the related Guarantees, any fee charged by securities
ratings services for rating the Program and the Notes, the fees and expenses
incurred in connection with any listing of the Notes on a securities exchange,
and the fee of the National Association of Securities Dealers, Inc., if any, and
(ii) all expenses in connection with the printing, reproduction and delivery of
this Agreement and the printing, reproduction and delivery of such other
documents or certificates as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Notes or the Guarantees.
7. Conditions of Agents' Obligations.
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The obligations of one or more Agents to purchase Notes as principal
and to solicit offers for the purchase of Notes as an agent of the Company, and
the obligations of any purchasers of Notes sold through an Agent as an agent of
the Company, will be subject to the following conditions:
(a) The Agents shall have received from PricewaterhouseCoopers LLP a
letter, dated the date of this Agreement, in form and substance satisfactory to
you, to the effect that:
(i) They are independent accountants with respect to the Guarantor and
its subsidiaries within the meaning of the 1933 Act and the 1933 Act
Regulations;
(ii) In their opinion, the consolidated financial statements of the
Guarantor and its subsidiaries audited by them and incorporated by
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reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and
the 1934 Act and the published rules and regulations thereunder with
respect to registration statements on Form S-3;
(iii) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(A) Reading the minutes of meetings of the shareowners and
the Boards of Directors of the Guarantor and the Company and their
Executive, Compensation and Corporate Governance, Finance and the
Audit and Corporate Responsibility Committees since the day after the
end of the last audited period as set forth in the minute books
through a specified date not more than five business days prior to the
date of delivery of such letter; and
(B) With respect to the unaudited consolidated balance sheet
as of the most recent quarter ended and the unaudited consolidated
statements of income and of cash flows included in the Guarantor's
Quarterly Report on Form 10-Q for the most recent quarter ended ("Form
10-Q") incorporated by reference in the Registration Statement,
(i) Performing the procedures specified by the American Institute
of Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information, on
-----------------------------
the unaudited consolidated balance sheet and the unaudited consolidated
statements of income and of cash flows for the most recent quarter ended
and year to date, and prior year periods, included in the Guarantor's Form
10-Q incorporated by reference in the Registration Statement;
(ii) Making inquiries of certain officials of the Guarantor who
have responsibility for financial and accounting matters as to whether the
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unaudited consolidated financial statements referred to in (B)(i) comply as
to form in all material respects with the applicable accounting
requirements of the 1934 Act, as it applies to Form 10-Q and the related
published rules and regulations thereunder;
(C) Reading the unaudited interim financial data for the
period from the date of the latest balance sheet included or
incorporated in the Registration Statement to the date of the latest
available interim financial data; and
(D) Making inquiries of certain officials of the Guarantor
who have responsibility for financial and accounting matters regarding
the specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that (i) the unaudited
consolidated financial statements described in (B)(i), included in the
Form 10-Q and incorporated by reference in the Registration Statement,
do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1934 Act, as it
applies to Form 10-Q, and the related published rules and regulations
thereunder; or (ii) any material modifications should be made to the
unaudited consolidated financial statements described in (B)(i),
included in the Form 10-Q and incorporated by reference in the
Registration Statement, for them to be in conformity with generally
accepted accounting principles; or (iii) at the date of the latest
available interim financial data and at the date of the latest
available month end, there was any change in the common equity; (iv)
at the date of the latest available interim financial data and at a
specified date not more than five business days prior to the date of
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delivery of such letter, there was any change in the common stock or
preferred stock (with or without sinking fund requirements) (except
for changes in shares of certain series of preferred stock of a
subsidiary of the Guarantor redeemed for, purchased or otherwise
retired in anticipation of, sinking fund requirements for such series
or as a result of the surrender by the Guarantor of any preferred
stock of PPL Electric Utilities Corporation theretofore purchased by
the Guarantor) or increase in long-term debt of the Guarantor and
subsidiaries consolidated as compared with amounts shown in the latest
balance sheet incorporated by reference in the Registration Statement;
or (v) for the period from the closing date of the latest consolidated
income statement incorporated by reference in the Registration
Statement to the date of the latest available interim financial data
there were any decreases, as compared with the corresponding period in
the preceding year, in net income, except in all instances for
changes, increases or decreases which the Registration Statement,
including the documents incorporated therein by reference, discloses
have occurred or may occur, or they shall state any specific changes
or decreases.
(iv) The letter shall also state that the information set forth in
Schedule D hereto, which is expressed in dollars (or percentages derived
from such dollar amounts) and has been obtained from accounting records
which are subject to the internal controls of the Guarantor's accounting
system or which has been derived directly from such accounting records by
analysis or computation, is in agreement with such records or computations
made therefrom, except as otherwise specified in such letter.
(b) The Registration Statement has become effective under the 1933
Act and no stop order suspending the effectiveness of the Registration Statement
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shall have been issued and no proceedings for that purpose shall have been
instituted, or, to the knowledge of the Company or the Guarantor, shall be
contemplated by the Commission and the Agents shall have received certificates
of the Company and of the Guarantor dated the date hereof to such effect.
(c) On the date hereof the Agents shall have received from Xxxxxxx X.
XxXxxxx, Esq., Senior Counsel, or such other counsel for the Company and the
Guarantor as may be acceptable to you, an opinion, dated as of the date hereof,
in form and substance satisfactory to counsel for the Agents, to the effect
that:
(i) The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The portions of the information contained in the Prospectus,
which are stated therein to have been made on the authority of any such
counsel, have been reviewed by such counsel and, as to matters of law and
legal conclusions, are correct;
(iii) The Guarantor is a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, but is exempt from
such Act (except for the provisions of Section 9(a)(2) thereof) by virtue
of an order of the Commission pursuant to Section 3(a)(1) thereof;
(iv) The descriptions in the Registration Statement 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 such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
Prospectus which are not described, or of any contracts or documents of a
character required to be described in the Registration Statement or the
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Prospectus or to be filed as exhibits to the Registration Statement which
are not described and filed as required; it being understood that such
counsel need express no opinion as to the financial statements and other
financial data contained or incorporated by reference in the Registration
Statement or the Prospectus;
(v) This Agreement has been duly authorized, executed and delivered by
the Guarantor;
(vi) The Indenture has been duly authorized, executed and delivered by
the Guarantor and, assuming due authorization, execution, and delivery by
the Company and the Trustee, is a valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except to the extent
limited by the Bankruptcy Exceptions;
(vii) The Guarantees are in the form established pursuant to the
Indenture, have been duly authorized by the Guarantor, and, when duly
executed pursuant to the Indenture and delivered in accordance with the
provisions of this Agreement, will constitute valid and binding obligations
of the Guarantor, as guarantor, enforceable in accordance with their terms,
except to the extent limited by the Bankruptcy Exceptions;
(viii) No approval, authorization, consent or other order of any
public board or body is legally required for the authorization of the
offering, issuance and sale of the Notes, except (a) such as may be
required under the 1933 Act or the 1933 Act Regulations or the securities
or "blue sky" laws of any jurisdiction and (b) the qualification of the
Indenture under the 1939 Act and 1939 Act Regulations.
In rendering such opinion, such counsel may rely as to matters
governed by New York law upon the opinion of Xxxxxx Xxxx & Priest LLP
referred to in Section 7(d) of this Agreement.
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(d) On the date hereof, the Agents shall have received from Xxxxxx
Xxxx & Priest LLP, special counsel to the Company and the Guarantor, an opinion,
dated as of the date hereof, in form and substance satisfactory to counsel for
the Agents, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware;
(ii) The Notes are in the form established pursuant to the Indenture,
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 therefor, will constitute valid and binding obligations of
the Company enforceable in accordance with their terms, except to the
extent limited by the Bankruptcy Exceptions, and are entitled to the
benefits of the Indenture;
(iii) The Guarantees are in the form established pursuant to the
Indenture, have been duly authorized by the Guarantor, and, when duly
executed pursuant to the Indenture and delivered in accordance with the
provisions of this Agreement, will constitute valid and binding obligations
of the Guarantor, as guarantor, enforceable in accordance with their terms,
except to the extent limited by the Bankruptcy Exceptions;
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Guarantor and the Company;
(v) The Indenture has been duly authorized, executed and delivered by
the Company and the Guarantor and, assuming due authorization, execution,
and delivery by the Trustee, is a valid and binding obligation of the
Company and the Guarantor, enforceable in accordance with its terms, except
to the extent limited by the Bankruptcy Exceptions; and the Indenture has
been duly qualified under the 1939 Act;
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(vi) The Registration Statement has become effective under the 1933
Act and any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required, and, to the
best of the knowledge of such counsel, 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 or are
pending or contemplated under the 1933 Act, and the Registration Statement,
as of its effective date, and any amendment thereto, as of its date, and
the Prospectus, as of its date, and each amendment or supplement thereto,
as of its date, complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations, and nothing has
come to the attention of such counsel which would lead such counsel to
believe either that the Registration Statement or any amendment thereto, as
of such dates, 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 Prospectus or any
amendment or supplement thereto, as of the date issued or the date of such
opinion, 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 or statistical
data contained or incorporated by reference in the Registration Statement
or the Prospectus;
(vii) The statements in the Prospectus under the captions "Description
of the Debt Securities" and "Description of the Notes", insofar as they
purport to constitute summaries of certain terms of the Indenture, the
Notes and the Guarantees, in each case constitute accurate summaries of
such terms of such documents and securities, in all material respects;
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(viii) The Company is a "finance subsidiary" within the meaning of
Rule 3a-5 of the 1940 Act, and the Guarantees satisfy the conditions of
clauses (a)(1) and (3) of Rule 3a-5. Assuming that the Company continues to
qualify as a "finance subsidiary" within the meaning of Rule 3a-5,
satisfies the conditions of clauses (a)(5) and (6) of Rule 3a-5 and
satisfies the conditions of Rule 3a-5 in respect of any securities other
than the Notes issued by the Company, upon giving effect to the
transactions contemplated by this Agreement, the Prospectus and the
application of the proceeds from the sale of the Notes contemplated in the
Prospectus, the Company will not be an "investment company" within the
meaning of the 1940 Act. The Guarantor is not an "investment company"
within the meaning of the 1940 Act;
(ix) No approval, authorization, consent or other order of any public
board or body is legally required under federal or New York law for the
authorization of the offering, issuance and sale of the Notes, except (a)
such as may be required under the 1933 Act or the 1933 Act Regulations or
the securities or "blue sky" laws of any jurisdiction and (b) the
qualification of the Indenture under the 1939 Act and 1939 Act Regulations;
and
(x) The statements in the Prospectus, under the caption "Certain
United States Federal Income Tax Considerations" constitute an accurate
description, in general terms, of certain tax considerations that may be
relevant to a holder of a Note.
In rendering their opinion, Xxxxxx Xxxx & Priest 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 Section 7(c) of this
Agreement.
(e) On the date hereof, the Agents shall have received from Xxxxxxxx
& Xxxxxxxx, counsel for the Agents, such opinion or opinions, dated as of the
date hereof, with respect to the validity of the Notes and the Guarantees, this
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Agreement, the Registration Statement, the Prospectus and other related matters
as the Agents may require, and the Company and the Guarantor 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 may assume the due incorporation and valid existence of the
Company and the Guarantor and may rely as to matters governed by Pennsylvania
law upon the opinion of Xxxxxxx X. XxXxxxx, Esq. or such other counsel for the
Company and the Guarantor referred to in Section 7(c) of this Agreement.
(f) On the date hereof, the Agents shall have received certificates,
dated the date hereof, of the President, the Senior Vice President and Chief
Financial Officer, the Vice President-Finance, or the Vice President and
Controller, or any other Vice President who is also a financial or accounting
officer of the Guarantor, and of the President, and Vice President or the
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 or the Guarantor, as the case may be, in this
Agreement are true and correct (except for immaterial details) as of the date of
such certificate, (ii) the Company or Guarantor, as the case may be, has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, (iii) 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
by the Commission, and (iv) subsequent to the date of the latest financial
statements in the Prospectus, there has been no Material Adverse Effect, whether
or not arising in the ordinary course of business, except as set forth or
contemplated in the Prospectus or as described in such certificate.
In case any such condition shall not have been satisfied, this
Agreement may be terminated by the applicable Agent or Agents upon notice in
writing or by telegram to the Company and the Guarantor without liability or
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obligation of any party, except as provided in Sections 5(c), 6, 9, 11, 12 and
14 hereof.
8 Additional Covenants of the Company and the Guarantor.
-----------------------------------------------------
The Company and the Guarantor further covenant and agree with each
Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance
-----------------------------------------------
by the Company of an offer for the purchase of Notes (whether to one or more
Agents as principal or through an Agent as agent), and each delivery of Notes
(whether to one or more Agents as principal or through an Agent as Agent), shall
be deemed to be an affirmation that the representations and warranties of the
Company and the Guarantor herein contained and contained in any certificate
delivered therewith to the Agents pursuant to this Agreement are true and
correct at the time of such acceptance or sale, as the case may be (it being
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
-----------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing solely for the determination of the
variable terms of the Notes or relating solely to the offering of securities
other than the Notes) or (ii) (if required by the Terms Agreement relating to
such Notes) the Company sells Notes to one or more Agents as principal, each of
the Company and the Guarantor shall furnish or cause to be furnished to the
Agent(s), forthwith a certificate dated the date of filing with the Commission
or the date of effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, in form satisfactory to the Agent(s)
to the effect that the statements contained in the certificate referred to in
Section 7(f) hereof which were last furnished to the Agents are true and correct
at the time of the filing or effectiveness of such amendment or supplement, as
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applicable, or the time of such sale, as the case may be, as though made at and
as of such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 7(f) hereof, modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificate (it being understood that, in the case
of clause (ii) above, any such certificates shall also include a certification
that there has been no Material Adverse Effect since the date of the agreement
by such Agent(s) to purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
-------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented (other
than (A) by an amendment or supplement providing solely for the determination of
the variable terms of the Notes or relating solely to the offering of securities
other than the Notes or (B) unless an Agent shall otherwise reasonably request,
by filing of any Current Report on Form 8-K) or (ii) (if required by the Terms
Agreement relating to such Notes) the Company sells Notes to one or more Agents
as principal, the Company shall furnish or cause to be furnished forthwith to
the Agent(s) and to counsel to the Agents the written opinions of Xxxxxxx X.
XxXxxxx, Esq., Senior Counsel to the Guarantor (or such other counsel as may be
acceptable to the Agent(s)) and Xxxxxx Xxxx & Priest LLP, special counsel to the
Company and the Guarantor, each dated the date of filing with the Commission or
the date of effectiveness of such amendment or supplement, as applicable, or the
date of such sale, as the case may be, in form and substance satisfactory to the
Agent(s), of the same tenor as the opinions referred to in Sections 7(c) and (d)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinions; or, in lieu of such opinions, counsel last furnishing such opinions to
the Agents shall furnish the Agent(s) with a letter substantially to the effect
that the Agent(s) may rely on such last opinion to the same extent as though it
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was dated the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
--------------------------------------
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required by the Terms Agreement relating to such
Notes) the Company sells Notes to one or more Agents as principal, the Company
shall cause PricewaterhouseCoopers LLP forthwith to furnish to the Agent(s) a
letter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form satisfactory to the Agent(s), of the same
tenor as the letter referred to in Section 7(a) hereof but modified to relate to
the Registration Statement and Prospectus as amended and supplemented to the
date of such letter; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, PricewaterhouseCoopers LLP may limit
the scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any other information included therein of an
accounting, financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such other
information.
(e) The Company shall not sell Notes which are not substantially in a
form previously certified without prior notification to each Agent or Xxxxxxxx &
Xxxxxxxx as counsel to the Agents.
9 Indemnification and Contribution.
--------------------------------
(a) The Company and the Guarantor agree that they will jointly and
severally indemnify and hold harmless each Agent and each person, if any, who
controls any Agent within the meaning of Section 15 of the 1933 Act, against any
and all loss, expense, claim, damage or liability to which, jointly or
severally, such Agent or such controlling person may become subject, under the
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1933 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, 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 and the Guarantor agree to reimburse each Agent
and each person who controls any Agent as aforesaid for any reasonable legal or
other expenses as incurred by such Agent or such controlling person in
connection with investigating or defending any such loss, expense, claim, damage
or liability; provided, however, that the Company and the Guarantor 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 Guarantor or
the Company by or through any such Agent expressly for use in any such document
or arises out of, or is based on, statements in or omissions from that part of
the Registration Statement which shall constitute the T-1; and provided further,
that with respect to any untrue statement or alleged untrue statement or
omission or alleged omission made in any prospectus or supplement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Agent from whom the person asserting any such loss, expense, claim, damage or
liability purchased the Notes concerned (or to the benefit of any person
controlling such Agent), if a copy of the Prospectus (not including documents
incorporated by reference therein) or of the Prospectus as then amended or
supplemented (not including documents incorporated by reference therein) was not
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sent or given to such person at or prior to the written confirmation of the sale
of such Notes to such person.
(b) Each Agent severally agrees that it will indemnify and hold
harmless the Company and the Guarantor, their officers and directors, and each
of them, and each person, if any, who controls the Company and the Guarantor
within the meaning of Section 15 of the 1933 Act, against any loss, expense,
claim, damage or liability to which it or they may become subject, under the
1933 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
Registration Statement, 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 Guarantor or the
Company by or through any Agent expressly for use in any such document; and,
except as hereinafter in this Section provided, each Agent agrees to reimburse
the Company and the Guarantor, their officers and directors, and each of them,
and each person, if any, who controls the Company and the Guarantor within the
meaning of Section 15 of the 1933 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
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Section 9. In the case of any such notice to an indemnifying party, it 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,
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 except as provided in Section 9(e) hereof.
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 Agent or person entitled to indemnification by the terms
of subsection (a) of this Section 9 shall have given notice to the Company and
the Guarantor of a claim in respect thereof pursuant to Section 9(c) hereunder,
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 Agent or
person shall be entitled to contribution from the Company and the Guarantor to
liabilities and expenses, except to the extent that contribution is not
permitted under Section 11(f) of the 1933 Act. In determining the amount of
contribution to which such Agent or person is entitled, there shall be
considered the relative benefits received by such Agent or person and the
Company and the Guarantor 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 Agent 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 Guarantor and the Agents agree that it would
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not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Agents 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, the Guarantor and the several
Agents 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 Agent or
any person controlling any Agent, the Company, its directors or officers, the
Guarantor or any person controlling the Guarantor, (ii) acceptance of any Notes
and payment therefor under this Agreement, and (iii) any termination of this
Agreement.
10 Default of Agents.
-----------------
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Notes from the Company as principal and
one or more of such Agents shall fail at the Settlement Date to purchase the
Notes which it or they are obligated to purchase (the "Defaulted Notes"), then
the non-defaulting Agents may make arrangements satisfactory to the Company for
one of them or one or more other Agents or any other agents to purchase all, but
not less than all, of the Defaulted Notes in such amounts as may be agreed upon
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and upon the terms herein set forth in this Agreement. If, however, no such
arrangements shall have been made within 24 hours thereafter, then the
non-defaulting Agents shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions which their respective initial
underwriting obligations bear to the underwriting obligations of all
non-defaulting Agents. In the event of any such default, either the
non-defaulting Agents or the Company may by prompt written notice to such other
parties postpone the Settlement Date for a period of not more than seven full
business days in order to effect whatever changes may thereby be made necessary
in the Registration Statement or Prospectus or in any other documents or
arrangements, and the Company will promptly file any amendments to the
Registration Statement or Supplements to the Prospectus which may thereby be
made necessary. As used in this Agreement, the term "Agent" includes any person
substituted for an Agent under this Section 10.
Nothing in this Section 10 shall relieve an Agent from liability for
its default.
11 Survival of Certain Representations and Obligations.
---------------------------------------------------
The respective indemnities, agreements, representations and warranties
of the Company and the Guarantor and of or on behalf of the Agents 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 Agent or the Company and the Guarantor or any of their
respective officers, 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 Agents is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Sections 5(c) and 6, and
the respective obligations of the Company, the Guarantor and the Agents pursuant
to Sections 9, 11, 12 and 14 hereof shall remain in effect.
12 Termination.
-----------
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(a) This Agreement (excluding any agreement by one or more Agents to
purchase Notes as principal) may be terminated, for any reason at any time, by
either the Company or an Agent, as to itself, upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) The applicable Agent(s) may terminate any agreement by such
Agent(s) to purchase Notes as principal, immediately upon notice to the Company
and the Guarantor, at any time prior to the Settlement Date relating thereto, if
(i) there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, as amended
or supplemented to such date, any change or any development involving a
prospective change in or affecting particularly the business or properties of
the Guarantor, which, in the judgment of any such Agent, materially impairs the
investment quality of such Notes; (ii) there has been any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum or maximum prices for trading on such exchange, or any
suspension or limitation of trading of any securities of the Company or the
Guarantor on any exchange or in the over-the-counter market; (iii) a general
banking moratorium has been declared by Federal or New York authorities; (iv)
there shall have occurred 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 the
reasonable judgment of such Agent, in each case the effect of which makes it
impractical and inadvisable to proceed with completion of the sale of and
payment for the Notes and such Agent makes a similar determination with respect
to all other underwritings of medium-term notes of utilities or utility holding
companies in which it is participating and has the contractual right to make
such a determination; or (v) there has been any decrease in the ratings of the
Program or any debt securities of the Company or the Guarantor (including the
Notes) that existed as of the date of such agreement by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
-35-
436(g) under the 0000 Xxx) or if such organization shall have publicly announced
that it has under surveillance or review, with possible negative implications,
its rating of the Program or any such debt securities.
(c) In the event of any such termination, no party will have any
liability to the other parties hereto, except that (i) the Agents shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(b) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it as principal pursuant to a Terms Agreement or (b) an
offer to purchase any of the Notes has been accepted by the Company but the time
of delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 5 and 8 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 5(h) hereof, the provisions of Section 6
hereof, the indemnity and contribution agreements set forth in Section 9 hereof,
and the provisions of Sections 11, 14 and 15 hereof shall remain in effect.
13 Notices.
-------
The Company and the Guarantor shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of each of the Agents if
the same shall have been made or given by the Agents. All statements, requests,
notices, consents and agreements hereunder shall be in writing, or by telegraph
subsequently confirmed in writing, to the following addresses:
If to the Company or the Guarantor:
PPL Corporation
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Treasurer
Facsimile: (000) 000-0000
-36-
If to [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
If to [name]:
[address]
Attention:
Facsimile:
14 Parties in Interest.
-------------------
This Agreement shall each inure solely to the benefit of the Company,
the Guarantor and the Agents and, to the extent provided in Section 9 hereof, to
any person who controls any Agent, to the officers and directors of the Company
and the Guarantor, and to any person who controls the Company or the Guarantor,
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 Agent
(other than a person substituted for an Agent under Section 10 hereof or one who
shall acquire all or substantially all of an Agent's business and properties),
nor shall it include any purchaser of Notes from any Agent merely because of
such purchase.
15 Applicable Law.
--------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
-37-
16 Counterparts.
------------
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
between us by signing in the space provided below for that purpose, whereupon
this Distribution Agreement shall constitute a binding agreement between the
Company and the Guarantor and the several Agents in accordance with its terms.
Yours very truly,
PPL CORPORATION
By:
------------------------------------
Name:
Title:
PPL CAPITAL FUNDING, INC.
By:
------------------------------------
Name:
Title:
-38-
The foregoing Distribution Agreement is
hereby confirmed and accepted as of the date
first above written.
[NAME]
By:
------------------------------------
Name:
Title:
[NAME]
By:
------------------------------------
Name:
Title:
[NAME]
By:
------------------------------------
Name:
Title:
[NAME]
By:
------------------------------------
Name:
Title:
-39-
SCHEDULE A
----------
PRICING TERMS
Principal Amount: $
--------------
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters Page:
[ ] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
-40-
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: %, plus accrued interest, if any, from
---
---------
Price to Public: %, plus accrued interest, if any, from
---
---------
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 7(f) of the
Distribution Agreement
Legal Opinions pursuant to Sections 7(c) and (d) of the
Distribution Agreement
Comfort Letter pursuant to Section 7(a) of the
Distribution Agreement
-41-
SCHEDULE B
----------
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Notes multiplied by the appropriate
percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ---------------
From 9 months to less than 1 year......................... .125%
From 1 year to less than 18 months........................ .150
From 18 months to less than 2 years....................... .200
From 2 years to less than 3 years......................... .250
From 3 years to less than 4 years......................... .350
From 4 years to less than 5 years......................... .450
From 5 years to less than 6 years......................... .500
From 6 years to less than 7 years......................... .550
From 7 years to less than 10 years........................ .600
From 10 years to less than 15 years....................... .625
From 15 years to less than 20 years....................... .700
From 20 years to 30 years................................. .750%
From 30 years to 40 Years................................. *
-42-
---------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
-43-
SCHEDULE C
----------
PPL CAPITAL FUNDING, INC.
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM
NOTES, SERIES [ ]
-
(Dated as of 6, 2000)
------ --
Medium-Term Notes, Series [ ] (the "Notes") in an aggregate principal
-
amount of up to $ are to be offered on a continuous basis by PPL
----------
Capital Funding, Inc., a Delaware corporation (the "Company"), to or through
[insert name of Agents] (each, an "Agent" and, collectively, the "Agents")
pursuant to a Distribution Agreement, dated , 2000 (the "Distribution
------ --
Agreement"), by and among the Company, PPL Corporation (the "Guarantor") and the
Agents. Each of the Notes is to be unconditionally guaranteed as to payment of
principal and any premium, and interest by the Guarantor pursuant to guarantees
of the Guarantor (the "Guarantees"). The Distribution Agreement provides both
for the sale of Notes by the Company to one or more of the Agents as principal
for resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors through one or more Agents (as may from time to
time be agreed to by the Company and the related Agent or Agents), in which case
each such Agent will act as an agent of the Company in soliciting purchases of
Notes.
Unless otherwise agreed by the related Agent or Agents and the
Company, Notes will be purchased by the related Agent or Agents as principal.
Such purchases will be made in accordance with the applicable Terms Agreement as
provided in the Distribution Agreement. If agreed upon by any Agent or Agents
and the Company, the Agent or Agents, acting solely as agent or agents for the
Company and not as principal, will use reasonable efforts to solicit offers to
purchase the Notes. Only those provisions in these Administrative Procedures
-44-
that are applicable to the particular role to be performed by the related Agent
or Agents shall apply to the offer and sale of the relevant Notes.
The Notes will be issued under an Indenture, dated as of November 1,
1997, as amended, supplemented or modified from time to time (the "Indenture"),
between the Company, the Guarantor and The Chase Manhattan Bank ("Chase"), as
trustee (together with any successor in such capacity, the "Trustee"). The
Company and the Guarantor have filed a joint Registration Statement with the
Securities and Exchange Commission (the "Commission") registering debt
securities, including the Notes and the Guarantees (the "Registration
Statement", which term shall include any additional registration statements
filed in connection with the Notes and the Guarantees). The most recent base
prospectus deemed part of the Registration Statement, as supplemented by a
Prospectus supplement relating to the Notes, is herein referred to as
"Prospectus". The most recent supplement to the Prospectus setting forth the
purchase price, interest rate or formula, maturity date and other terms of the
Notes (as applicable) is herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to Chase, as agent for The Depository Company ("DTC"), and recorded in
the book-entry system maintained by DTC, or (b) in certificated form (each, a
"Certificated Note") delivered to the investor or other purchaser thereof or a
person designated by such investor or other purchaser.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof, as adjusted from
time to time in accordance with changes in DTC's operating requirements, and
Certificated Notes will be issued in accordance with the procedures set forth in
Part III hereof. To the extent any procedure set forth below conflicts with the
provisions of the Notes, the Indenture or the Distribution Agreement, the
relevant provisions of the Notes, the Indenture and the Distribution Agreement,
-45-
respectively, shall control. Capitalized terms used but not otherwise defined
herein shall have the meanings ascribed thereto in the Notes, the Indenture or
the Distribution Agreement as the case may be.
-46-
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee. Each Note shall also
bear an original issue date (each, an "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
Price to Public: Unless otherwise agreed to by the
Company and the Agents and specified in a Pricing
Supplement, each Note will be issued at 100% of the
principal amount thereof.
Maturities: Each Note will mature on a date from nine months to
40 years from its Original Issue Date (the "Stated
Maturity Date") selected by the investor or other
purchaser and agreed to by the Company.
Guarantees: Each of the Notes is to be unconditionally
guaranteed as to payment of principal, premium, if
any, and interest pursuant to the Guarantees of the
Guarantor as set forth in the Indenture.
Registration: Unless otherwise provided in the applicable Pricing
Supplement, Notes will be issued only in fully
registered form.
-47-
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Notes will be issued in
denominations of $1,000 and integral multiples
thereof.
Interest Rate Bases
applicable to
Floating Rate
Notes: Unless otherwise provided in the applicable Pricing
Supplement, Floating Rate Notes will bear interest
at a rate or rates determined by reference to the
CMT Rate, the Commercial Paper Rate, the Federal
Funds Rate, LIBOR, the Prime Rate, the Treasury
Rate, or such other interest rate basis or formula
as may be set forth in applicable Pricing
Supplement, or by reference to two or more such
rates, as adjusted by the Spread and/or Spread
Multiplier, if any, applicable to such Floating
Rate Notes.
Redemption/
Repayment: The Notes will be subject to redemption by the
Company in accordance with the terms of the Notes,
which will be fixed at the time of sale and set
forth in the applicable Pricing Supplement. If no
Initial Redemption Date is indicated with respect
to a Note, such Note will not be redeemable prior
to its Stated Maturity Date (unless alternative
redemption provisions are expressly provided for a
particular Note).
The Notes will be subject to repayment at the
option of the Holders thereof in accordance with
the terms of the Notes, which will be fixed at the
time of sale and set forth in the applicable
Pricing Supplement. If no Optional Repayment Date
is indicated with respect to a Note, such Note will
-48-
not be repayable at the option of the Holder prior
to its Stated Maturity Date.
Calculation of
Interest: In case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated
and paid on the basis of a 360-day year of twelve
30-day months.
The interest rate on each Floating Rate Note will
be calculated by reference to the specified
Interest Rate Basis or Bases plus or minus the
applicable Spread, if any, and/or multiplied by the
applicable Spread Multiplier, if any.
Unless otherwise provided in the applicable Pricing
Supplement, interest on each Floating Rate Note
will be calculated by multiplying its principal
amount by an accrued interest factor. Such accrued
interest factor is computed by adding the interest
factor calculated for each day in the period for
which accrued interest is being calculated. Unless
otherwise provided in the applicable Pricing
Supplement, the interest factor for each such day
is computed by dividing the interest rate
applicable to such day by 360 if the Commercial
Paper Rate, Federal Funds Rate, LIBOR or Prime Rate
is an applicable Interest Rate Basis, or by the
actual number of days in the year if the CMT Rate
or Treasury Rate is an applicable Interest Rate
Basis. The interest factor for Notes for which the
interest rate is calculated with reference to two
or more Interest Rate Bases will be calculated as
provided in the applicable Pricing Supplement.
-49-
Interest: General. Each Note will bear interest in
-------
accordance with its terms. Unless otherwise
provided in the applicable Pricing Supplement,
interest on each Note will accrue from and
including the Original Issue Date of such Note for
the first interest period or from the most recent
Interest Payment Date (as defined below) to which
interest has been paid or duly provided for all
subsequent interest periods to but excluding the
next applicable Interest Payment Date or the
Stated Maturity Date or date of earlier redemption
or repayment, as the case may be (the Stated
Maturity Date or date of earlier redemption or
repayment is referred to herein as the "Maturity
Date" with respect to the principal repayable on
such date).
If an Interest Payment Date or the Maturity Date
with respect to any Fixed Rate Note falls on a day
that is not a Business Day (as defined below), the
required payment to be made on such day need not be
made on such day, but may be made on the next
succeeding Business Day with the same force and
effect as if made on such day, and no interest
shall accrue on such payment for the period from
and after such day to the next succeeding Business
Day. If an Interest Payment Date other than the
Maturity Date with respect to any Floating Rate
Note would otherwise fall on a day that is not a
Business Day, such Interest Payment Date will be
postponed to the next succeeding Business Day,
except that in the case of a Note for which LIBOR
is an applicable Interest Rate Basis, if such
Business Day falls in the next succeeding calendar
-50-
month, such Interest Payment Date will be the
immediately preceding Business Day. If the Maturity
Date with respect to any Floating Rate Note falls
on a day that is not a Business Day, the required
payment to be made on such day need not be made on
such day, but may be made on the next succeeding
Business Day with the same force and effect as if
made on such day, and no interest shall accrue on
such payment for the period from and after the
Maturity Date to the next succeeding Business Day.
Unless otherwise provided in the applicable Pricing
Supplement, "Business Day" means any day, other
than a Saturday or Sunday, that is not a day on
which banking institutions or trust companies are
generally authorized or required by law, regulation
or executive order to close in The City of New
York; provided that, with respect to Notes for
which LIBOR is an applicable Interest Rate Basis,
such day is also a London Business Day (as defined
below). "London Business Day" means any day on
which dealings in deposits in United States Dollars
are transacted in the London interbank market.
Regular Record Dates. Unless otherwise provided in
--------------------
the applicable Pricing Supplement, the "Regular
Record Date" for a Fixed Rate Note shall be the
January 31 or July 31 immediately preceding the
applicable Interest Payment Date and the "Regular
Record Date" for a Floating Rate Note shall be the
date 15 calendar days (whether or not a Business
Day) preceding the applicable Interest Payment
Date.
-51-
Interest Payment Dates. Interest payments will be
----------------------
made on each Interest Payment Date commencing with
the first Interest Payment Date following the
Original Issue Date; provided, however, the first
payment of interest on any Note originally issued
between a Regular Record Date and an Interest
Payment Date will occur on the Interest Payment
Date following the next succeeding Regular Record
Date.
Unless otherwise provided in the applicable Pricing
Supplement, interest payments on Fixed Rate Notes
will be made semiannually in arrears on February 15
and August 15 of each year and on the Maturity
Date, while interest payments on Floating Rate
Notes will be made as specified in the Prospectus
and the applicable Pricing Supplement.
Acceptance and
Rejection of
Offers from
Solicitation
as Agents: If agreed upon by any Agent and the Company, then
such Agent acting solely as agent for the Company
and not as principal will solicit purchases of the
Notes. Each Agent will communicate to the Company,
orally or in writing, each reasonable offer to
purchase Notes solicited by such Agent on an
agency basis, other than those offers rejected by
such Agent. Each Agent has the right, in its
discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part,
and any such rejection shall not be a breach of
such Agent's agreement contained in the
-52-
Distribution Agreement. The Company has the sole
right to accept or reject any proposed purchase of
Notes, in whole or in part, and any such rejection
shall not be a breach of the Company's agreement
contained in the Distribution Agreement. Each
Agent has agreed to make reasonable efforts to
assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has
been solicited by such Agent and accepted by the
Company.
Preparation of
Pricing
Supplement: If any offer to purchase a Note is accepted by the
Company, the Company and the Guarantor will
promptly prepare a Pricing Supplement reflecting
the terms of such Note. Information to be included
in the Pricing Supplement shall include:
1 the name of the Company and the name of the
Guarantor;
2 the title of the Notes;
3 the date of the Pricing Supplement and the
date of the Prospectus to which the Pricing
Supplement relates;
4 the name of the Offering Agent (as defined
below);
5 whether such Notes are being sold to the
Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company;
-53-
6 with respect to Notes sold to the Offering
Agent as principal, whether such Notes will
be resold by the Offering Agent to investors
and other purchasers at (i) a fixed public
offering price of 100% of their principal
amount or at (ii) varying prices related to
prevailing market prices at the time of
resale to be determined by the Offering
Agent;
7 the Offering Agent's discount or commission;
8 Net proceeds to the Company;
9 the Principal Amount, Original Issue Date,
Stated Maturity Date, Interest Payment
Date(s), Initial Redemption Date, if any,
Initial Redemption Percentage, if any,
Annual Redemption Percentage Reduction, if
any, Optional Repayment Date(s), if any,
and, in the case of Fixed Rate Notes, the
Interest Rate, and, in the case of Floating
Rate Notes, the Interest Rate Basis or
Bases, the Day Count Convention, Index
Maturity (if applicable), Initial Interest
Rate, if any, Maximum Interest Rate, if any,
Minimum Interest Rate, if any, Initial
Interest Reset Date, Interest Reset Dates,
Spread and/or Spread Multiplier, if any, and
Calculation Agent; and
10 any other additional provisions of the Notes
material to investors or other purchasers of
the Notes not otherwise specified in the
Prospectus.
-54-
The Company shall endeavor to send such Pricing
Supplement by telecopy or overnight express (for
delivery by the close of business on the
applicable trade date, but in no event later than
11:00 A.M. New York City time, on the Business Day
following the applicable trade date) to the Agent
which made or presented the offer to purchase the
applicable Note (in such capacity, the "Offering
Agent") and the Trustee at the following
applicable address: if to [name], to:
[name/address], Attention: [name], telecopier
[fax]; if to [name], to: [name/address],
Attention: [name], telecopier [fax]; if to [name],
to: [name/address], Attention: [name], telecopier
[fax]; if to [name], to: [name/address],
Attention: [name], telecopier [fax]; and if to the
Trustee (or Chase), to: 000 X. 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Capital Markets
Fiduciary Services (000) 000-0000, telecopier:
(000) 000-0000. For record keeping purposes, one
copy of such Pricing Supplement shall also be
mailed or telecopied to each of Xxxxxx Xxxx &
Priest, LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Xxxxxxxxx X. Xxxx,
Esq. and Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Esq.
In each instance that a Pricing Supplement is
prepared, the Offering Agent will provide a copy of
such Pricing Supplement to each investor or
purchaser of the relevant Notes or its agent.
-55-
Pursuant to Rule 434 of the Securities Act of 1933,
as amended ("Rule 434"), the Pricing Supplement may
be delivered separately from the Prospectus.
Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the
authentication and delivery of such Note shall,
with respect to such Note, constitute
"settlement". Offers accepted by the Company will
be settled in three Business Days, or at such time
as the purchaser, the applicable Agent and the
Company shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof
under "Settlement Procedure Timetable" with
respect to Global Notes and Certificated Notes,
respectively (each such date fixed for settlement
is hereinafter referred to as a "Settlement
Date"). If procedures A and B of the applicable
Settlement Procedures with respect to a particular
offer are not completed on or before the time set
forth under the applicable "Settlement Procedures
Timetable", such offer shall not be settled until
the Business Day following the completion of
settlement procedures A and B or such later date
as the purchaser and the Company shall agree.
The foregoing settlement procedures may be modified
with respect to any purchase of Notes by an Agent
as principal if so agreed by the Company and such
Agent.
-56-
Procedure for
Changing Rates
or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any
Notes being sold by the Company, the Company will
promptly advise the Agents and the Trustee by
facsimile transmission and the Agents will
forthwith suspend solicitation of offers to
purchase such Notes. The Agents will telephone the
Company with recommendations as to the changed
interest rates or other variable terms. At such
time as the Company notifies the Agents and the
Trustee of the new interest rates or other
variable terms, the Agents may resume solicitation
of offers to purchase such Notes. Until such time,
only "indications of interest" may be recorded.
Immediately after acceptance by the Company of an
offer to purchase Notes at a new interest rate or
new variable term, the Company, the Offering Agent
and the Trustee shall follow the procedures set
forth under the applicable "Settlement
Procedures".
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of offers to purchase Notes at any
time. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation of
offers to purchase from the Company until such
time as the Company has advised the Agents that
solicitation of offers to purchase may be resumed.
If the Company or the Guarantor decides to amend
or supplement the Registration Statement or the
Prospectus (other than to establish or change
-57-
interest rates or formulas, maturities, prices or
other similar variable terms with respect to the
Notes), it will promptly advise the Agents and
will furnish the Agents and their counsel with
copies of the proposed amendment or supplement.
Copies of such amendment or supplement will be
delivered or mailed to the Agents, their counsel
and the Trustee in quantities which such parties
may reasonably request at the following respective
addresses: [name/address], Attention:
[name/phone], telecopier [fax]; [name/address],
Attention: [name/phone], telecopier [fax];
[name/address], [name/address], Attention: [name],
telecopier [fax]; [name/address], Attention:
[name/phone], telecopier [fax]; [name/address],
[name/address], Attention: [name], telecopier
[fax]; and [name/address], Attention:
[name/phone], telecopier [fax]; [name/address],
[name/address], Attention: [name], telecopier
[fax]; and if to the Trustee (or Chase), to: 000
X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Capital Markets Fiduciary Services,
(000) 000-0000, telecopier: (000) 000-0000. For
record keeping purposes, one copy of each such
amendment or supplement shall also be mailed or
telecopied to each of Xxxxxx Xxxx & Priest LLP, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxxxxxx X. Xxxx, Esq., (212)
603-2000, telecopier: (000) 000-0000 and Xxxxxxxx
& Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxx, Esq., (212)
558-3812, telecopier: (000) 000-0000.
-58-
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to establish or change interest rates
or formulas, maturities, prices or other similar
variable terms with respect to the Notes) there
shall be any offers to purchase Notes that have
been accepted by the Company which have not been
settled, the Company will promptly advise the
Offering Agent and the Trustee whether such offers
may be settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as in
effect at the time of the suspension may be
delivered in connection with the settlement of such
offers. The Company will have the sole
responsibility for such decision and for any
arrangements which may be made in the event that
the Company determines that such offers may not be
settled or that copies of such Prospectus may not
be so delivered.
Delivery of
Prospectus and
applicable
Pricing
Supplement: A copy of the most recent Prospectus and the
applicable Pricing Supplement, which pursuant to
Rule 434 may be delivered separately from the
Prospectus, must accompany or precede the earlier
of (a) the written confirmation of a sale sent to
an investor or other purchaser or its agent and (b)
the delivery of Notes to an investor or other
purchaser or its agent.
-59-
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Company, the Guarantor or the Trustee in
respect of the authenticity of the signature of any
officer, employee or agent of the Company, the
Guarantor or the Trustee on any Note or Guarantee.
Documents
Incorporated by
Reference: The Company shall supply the Agents with an
adequate supply of all documents incorporated by
reference in the Registration Statement and the
Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, Chase will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Bring-Down Letter
of Representations from the Company, the Guarantor and the Trustee to DTC, dated
, and a Certificate Agreement, dated December 2, 1988, between
------ -- ----
Chase and DTC, as amended (the "Certificate Agreement"), and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form
having the same Original Issue Date, Interest
Rate, Interest Payment Dates, redemption and/or
repayment terms, if any, and Stated Maturity Date
(collectively, the "Fixed Rate Terms") will be
represented initially by a single Global Note; and
all Floating Rate Notes issued in book-entry form
having the same Original Issue Date, formula for
the calculation of interest (including the
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Interest Rate Basis or Bases, which may be the CMT
Rate, the Commercial Paper Rate, the Federal Funds
Rate, LIBOR, the Prime Rate or the Treasury Rate
or any other interest rate basis or formula, and
Spread and/or Spread Multiplier, if any), Day
Count Convention, Initial Interest Rate, Index
Maturity (if applicable), Minimum Interest Rate,
if any, Maximum Interest Rate, if any, redemption
and/or repayment terms, if any, Interest Payment
Dates, Initial Interest Reset Date, Interest Reset
Dates and Stated Maturity Date(collectively, the
"Floating Rate Terms") will be represented
initially by a single Global Note.
For other variable terms with respect to the Fixed
Rate Notes and Floating Rate Notes, see the
Prospectus and the applicable Pricing Supplement.
Owners of beneficial interests in Global Notes will
be entitled to physical delivery of Certificated
Notes equal in principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
Identification: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the
"CUSIP Service Bureau") for the reservation of one
series of CUSIP numbers, which series consists of
approximately 900 CUSIP numbers which have been
reserved for and relating to Global Notes, and the
Company has delivered to each of Chase and DTC
such list of such CUSIP numbers. Chase will assign
CUSIP numbers to Global Notes as described below
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under Settlement Procedures B. DTC will notify the
CUSIP Service Bureau periodically of the CUSIP
numbers that Chase has assigned to Global Notes.
Chase will notify the Company at any time when
fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Notes, and, if it
deems necessary, the Company will reserve and
obtain additional CUSIP numbers for assignment to
Global Notes. Upon obtaining such additional CUSIP
numbers, the Company will deliver a list of such
additional numbers to Chase and DTC. Notes issued
in book-entry form in excess of $400,000,000
aggregate principal amount and otherwise required
to be represented by the same Global Note will
instead be represented by two or more Global Notes
which shall all be assigned the same CUSIP number.
Registration: Unless otherwise specified by DTC, each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the register maintained by
Chase under the Indenture. The beneficial owner of
a Note issued in book-entry form (i.e., an owner
- -
of a beneficial interest in a Global Note) (or one
or more indirect participants in DTC designated by
such owner) will designate one or more
participants in DTC (with respect to such Note
issued in book-entry form, the "Participants") to
act as agent for such beneficial owner in
connection with the book-entry system maintained
by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such
Participants, a credit balance with respect to
such Note issued in book-entry form in the account
of such Participants. The ownership interest of
such beneficial owner in such Note issued in
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book-entry form will be recorded through the
records of such Participants or through the
separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of beneficial ownership interests in a
Global Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in
DTC) acting on behalf of beneficial transferors and
transferees of such Global Note.
Exchanges: Chase may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Global Notes
outstanding on such date that represent Global
Notes having the same Fixed Rate Terms or Floating
Rate Terms, as the case may be (other than
Original Issue Dates), and for which interest has
been paid to the same date; (b) a date, occurring
at least 30 days after such written notice is
delivered and at least 30 days before the next
Interest Payment Date for the related Notes issued
in book-entry form, on which such Global Notes
shall be exchanged for a single replacement Global
Note; and (c) a new CUSIP number, obtained from
the Company, to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC
will send to its Participants (including Chase) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to
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the specified exchange date, Chase will deliver to
the CUSIP Service Bureau written notice setting
forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be exchanged
will no longer be valid. On the specified exchange
date, Chase will exchange such Global Notes for a
single Global Note bearing the new CUSIP number
and the CUSIP numbers of the exchanged Notes will,
in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed $400,000,000
in aggregate principal amount, one replacement
Note will be authenticated and issued to represent
each $400,000,000 in aggregate principal amount of
the exchanged Global Notes and an additional
Global Note or Notes will be authenticated and
issued to represent any remaining principal amount
of such Global Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, Notes issued in book-entry form will
be issued in denominations of $1,000 and integral
multiples thereof. Global Notes will not be
denominated in excess of $400,000,000 aggregate
principal amount. If one or more Notes are issued
in book-entry form in excess of $400,000,000
aggregate principal amount and would, but for the
preceding sentence, be represented by a single
Global Note, then one Global Note will be issued
to represent each $400,000,000 in aggregate
principal amount of such Notes issued in
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book-entry form and an additional Global Note or
Notes will be issued to represent any remaining
aggregate principal amount of such Note or Notes
issued in book-entry form. In such a case, each of
the Global Notes representing Notes issued in
book-entry form shall be assigned the same CUSIP
number.
Payments of
Principal
and Interest: Payments of Interest Only. Promptly after each
-------------------------
Regular Record Date, Chase will deliver to the
Company and DTC a written notice specifying by
CUSIP number the amount of interest to be paid (to
the extent known) on each Global Note on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with the Maturity
Date) and the total of such amounts. DTC will
confirm the amount payable on each Global Note on
such Interest Payment Date by reference to the
appropriate (daily or weekly) bond reports
published by Standard & Poor's Corporation. On
such Interest Payment Date, the Company will pay
to Chase in immediately available funds an amount
sufficient to pay the interest then due and owing
on the Global Notes, and upon receipt of such
funds from the Company, Chase in turn will pay to
DTC such total amount of interest due on such
Global Notes (other than on the Maturity Date) at
the times and in the manner set forth below under
"Manner of Payment".
Notice of Interest Rates. Promptly after each
------------------------
Interest Determination Date or Calculation Date, as
the case may be, for Floating Rate Notes issued in
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book-entry form, Chase will notify each of Xxxxx'x
Investors Service, Inc. and Standard & Poor's
Corporation of the interest rates determined as of
such Interest Determination Date.
Payments at Maturity. On or about the first
--------------------
Business Day of each month, Chase will deliver to
the Company and DTC a written list of principal,
premium, if any, and interest (to the extent known)
to be paid on each Global Note maturing or
otherwise becoming due in the following month.
Chase, the Company and DTC will confirm the amounts
of such principal, premium, if any, and interest
payments with respect to each such Global Note on
or about the fifth Business Day preceding the
Maturity Date of such Global Note. On the Maturity
Date, the Company will pay to Chase in immediately
available funds an amount sufficient to make the
required payments, and upon receipt of such funds
Chase in turn will pay to DTC the principal amount
of Global Notes, together with premium, if any, and
interest due on the Maturity Date, at the times and
in the manner set forth below under "Manner of
Payment". Promptly after payment to DTC of the
principal, premium, if any, and interest due on the
Maturity Date of such Global Note, the Trustee will
cancel such Global Note and deliver it to the
Company with an appropriate debit advice. On the
first Business Day of each month, the Trustee will
deliver to the Company a written statement
indicating the total principal amount of
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outstanding Global Notes as of the close of
business on the immediately preceding Business Day.
Manner of Payment. The total amount of any
-----------------
principal, premium, if any, and interest due on
Global Notes on any Interest Payment Date or the
Maturity Date, as the case may be, shall be paid by
the Company to Chase in funds available for use by
the Trustee no later than 10:00 A.M., New York City
time, on such date. The Company will make such
payment on such Global Notes to an account
specified by Chase. Upon receipt of such funds,
Chase will pay by separate wire transfer (using
Fedwire message entry instructions in a form
previously specified by DTC) to an account at the
Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal, premium, if
any, and interest due on Global Notes on such date.
Thereafter on such date, DTC will pay, in
accordance with its SDFS operating procedures then
in effect, such amounts in funds available for
immediate use to the respective Participants in
whose names the beneficial interests in such Global
Notes are recorded in the book-entry system
maintained by DTC. Neither the Company, the
Guarantor nor Chase shall have any responsibility
or liability for the payment by DTC of the
principal of, or premium, if any, or interest on,
the Global Notes.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any
interest payment on a Global Note will be
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determined and withheld by the Participant,
indirect participant in DTC or other Person
responsible for forwarding payments and materials
directly to the beneficial owner of such Global
Note.
Settlement
Procedures: Settlement Procedures with regard to each Note in
book-entry form sold by an Agent, as agent of the
Company, or purchased by an Agent, as principal,
will be as follows:
A. The Offering Agent will advise the Company by
telephone, confirmed by facsimile, of the
following settlement information:
1. Principal amount and Authorized
Denomination.
2. (a) Fixed Interest Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Whether such Note is a Regular
Floating Rate Note, Inverse
Floating Rate Note or Floating
Rate/Fixed Rate Note.
(ii) Interest Rate Basis or
Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier,
if any.
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(v) Initial Interest Reset
Date and Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
(viii) Maximum and/or Minimum Interest Rates,
if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(xi) Fixed Rate Commencement Date, if any,
and Fixed Interest Rate, if any.
(xii) Other terms, if any.
4. Price to public, if any, of such
Note (or whether such Note is being
offered at varying prices relating
to prevailing market prices at time
of resale as determined by the
Offering Agent).
5. Trade Date.
6. Settlement Date (Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions, if any.
9. Repayment provisions, if any.
10. Net proceeds to the Company.
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11. The Offering Agent's discount or
commission.
12. Whether such Note is being sold to
the Offering Agent as principal or
to an investor or other purchaser
through the Offering Agent acting as
agent for the Company.
13. Such other information specified with
respect to such Note (whether by
Addendum or otherwise).
B. The Company will advise Chase by facsimile
transmission or other electronic
transmission of the above settlement
information received from the Offering
Agent, and the name of the Offering Agent.
Chase will assign a CUSIP number to the
Global Note representing such Note. Chase
will also advise the Offering Agent of the
CUSIP number assigned to the Global Note.
C. The Company will transmit to the Trustee by
telex or facsimile its written request
for the authentication and delivery of
such Global Note and the name of such
Agent. Each such request by the Company
shall constitute a representation and
warranty by the Company to the Trustee
that (i) the Global Note representing
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such Book-Entry Note is then, and at the
time of issuance and sale thereof will
be, duly authorized for issuance and
sale by the Company, (ii) the Global
Note representing such Book-Entry Note
will conform to the terms of the
Indenture, (iii) such Global Note, when
completed, authenticated and delivered
pursuant to the Indenture, will
constitute the valid and legally binding
obligation of the Company, and (iv) upon
authentication and delivery of such
Global Note, the aggregate principal
amount of all Notes initially offered
and issued under the Indenture will not
exceed $ (except for Notes
----------
represented by and authenticated and
delivered in exchange for or in lieu of
Notes in accordance with the Indenture).
Chase will communicate to DTC and the
Offering Agent through DTC's Participant
Terminal System a pending deposit message
specifying the following settlement
information:
1. The information set forth in the
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by DTC
on behalf of the Trustee and the
Offering Agent.
3. Identification of the Global Note as a
Fixed Rate Global Note or Floating Rate
Global Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
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succeeds the related record date for DTC
purposes (or, in the case of Floating
Rate Notes which reset daily or weekly,
the date five calendar days preceding
the Interest Payment Date) and, if then
calculable, the amount of interest
payable on such Interest Payment Date
(which amount shall have been confirmed
by Chase).
5. CUSIP number of the Global Note
representing such Note.
6. Whether such Global Note represents any
other Notes issued or to be issued in
book-entry form.
DTC will arrange for each pending deposit
message described above to be transmitted to
Standard & Poor's Corporation, which will
use the information in the message to
include certain terms of the related Global
Note in the appropriate daily bond report
published by Standard & Poor's Corporation.
X. Xxxxx will complete the Global Note and send
a copy thereof by facsimile to the Company
for verification.
In the event any Note is incorrectly
prepared, Chase shall promptly prepare a
corrected Note in exchange for such
incorrectly prepared Note.
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Chase will authenticate the Global Note
representing such Note.
E. DTC will credit such Note to the participant
account of Chase maintained by DTC.
X. Xxxxx will enter an SDFS deliver order
through DTC's Participant Terminal
System instructing DTC (i) to debit such
Note to Chase's participant account and
credit such Note to Chase's participant
account of the Offering Agent maintained
by DTC and (ii) to debit the settlement
account of the Offering Agent and credit
the settlement account of Chase
maintained by DTC, in an amount equal to
the price of such Note less such
Offering Agent's discount or
underwriting commission, as applicable.
Any entry of such a deliver order shall
be deemed to constitute a representation
and warranty by Chase to DTC that (i)
the Global Note representing such Note
has been issued and authenticated and
(ii) Chase is holding such Global Note
pursuant to the Certificate Agreement.
G. In the case of Notes in book-entry form sold
through the Offering Agent, as agent,
the Offering Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Offering Agent's
participant account and credit such Note
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to the participant account of the
Participants maintained by DTC and (ii)
to debit the settlement accounts of such
Participants and credit the settlement
account of the Offering Agent maintained
by DTC in an amount equal to the initial
public offering price of such Note.
H. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures F and G will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
I. Upon receipt, Chase will pay the Company, by
wire transfer of immediately available funds
to an account specified by the Company to
Chase from time to time, the amount
transferred to Chase in accordance with
Settlement Procedure X.
X. Xxxxx will send a copy of the Global Note by
telecopy to the Company together with a
statement setting forth the principal amount
of Notes Outstanding as of the related
Settlement Date after giving effect to such
transaction and all other offers to purchase
Notes of which the Company has advised Chase
but which have not yet been settled.
K. If such Note was sold through the Offering
Agent, as agent, the Offering Agent will
confirm the purchase of such Note to the
investor or other purchaser either by
transmitting to the Participant with respect
to such Note a confirmation order through
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DTC's Participant Terminal System or by
mailing a written confirmation to such
investor or other purchaser.
Settlement
Procedures
Timetable: For offers to purchase Notes accepted by the
Company, Settlement Procedures A through K set
forth above shall be completed as soon as possible
following the trade but not later than the
respective times (New York City time) set forth
below:
SETTLEMENT
PROCEDURE TIME
---------- ----
A 11:00 A.M. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
C No later than the close of business
on the trade date
D 9:00 A.M. on Settlement Date
E 10:00 A.M. on Settlement Date
F-G No later than 2:00 P.M. on
Settlement Date
H 4:00 P.M. on Settlement Date
I-K 5:00 P.M. on Settlement Date
Settlement Procedure H is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
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SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Note issued in book-entry form
is rescheduled or canceled, Chase will deliver to
DTC, through DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 5:00 P.M., New York City time, on the Business
Day immediately preceding the scheduled Settlement
Date.
Failure to Settle: If Chase fails to enter an SDFS deliver order with
respect to a Note issued in book-entry form
pursuant to Settlement Procedure F, Chase may
deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable, a withdrawal
message instructing DTC to debit such Note to the
participant account of Chase maintained at DTC.
DTC will process the withdrawal message, provided
that such participant account contains a principal
amount of the Global Note representing such Note
that is at least equal to the principal amount to
be debited. If withdrawal messages are processed
with respect to all the Notes represented by a
Global Note, the Trustee will xxxx such Global
Note "canceled", make appropriate entries in its
records and send certification of destruction of
such canceled Global Note to the Company. The
CUSIP number assigned to such Global Note shall,
in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. If withdrawal messages are processed
with respect to a portion of the Notes represented
by a Global Note, Chase will exchange such Global
Note for two Global Notes, one of which shall
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represent the Global Notes for which withdrawal
messages are processed and shall be canceled
immediately after issuance and the other of which
shall represent the other Notes previously
represented by the surrendered Global Note and
shall bear the CUSIP number of the surrendered
Global Note.
In the case of any Note in book-entry form sold
through the Offering Agent, as agent, if the
purchase price for any such Note is not timely paid
to the Participants with respect thereto by the
beneficial investor or other purchaser thereof (or
a person, including an indirect participant in DTC,
acting on behalf of such investor or other
purchaser), such Participants and, in turn, the
related Offering Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures F and G, respectively. Thereafter, Chase
will deliver the withdrawal message and take the
related actions described in the preceding
paragraph. If such failure shall have occurred for
any reason other than default by the applicable
Offering Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company
will reimburse such Offering Agent on an equitable
basis for its reasonable loss of the use of funds
during the period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Note in book-entry form,
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DTC may take any actions in accordance with its
SDFS operating procedures then in effect. In the
event of a failure to settle with respect to a Note
that was to have been represented by a Global Note
also representing other Notes, the Trustee will
provide, in accordance with Settlement Procedure D,
for the authentication and issuance of a Global
Note representing such remaining Notes and will
make appropriate entries in its records.
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PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the applicable Pricing
Supplement, the Certificated Notes will be issued
in denominations of $1,000 and integral multiples
thereof.
Payments of
Principal,
Premium, if any,
and Interest: Upon presentment and delivery of the Certificated
Note, Chase upon receipt of immediately available
funds from the Company will pay the principal of,
premium, if any, and interest on, each
Certificated Note on the Maturity Date in
immediately available funds. All interest payments
on a Certificated Note, other than interest due on
the Maturity Date, will be made by check mailed to
the address of the person entitled thereto as such
address shall appear in the Security Register;
provided, however, that registered Holders of
$10,000,000 or more in aggregate principal amount
of Certificated Notes (whether having identical or
different terms and provisions) shall be entitled
to receive such interest payments by wire transfer
of immediately available funds if appropriate wire
transfer instructions have been received in
writing by Chase not less than 15 calendar days
prior to the applicable Interest Payment Date.
Chase will provide monthly to the Company a list of
the principal, premium, if any, and interest (to
the extent known) to be paid on Certificated Notes
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maturing in the next succeeding month. Chase will
be responsible for withholding taxes on interest
paid as required by applicable law.
Certificated Notes presented to Chase on the
Maturity Date for payment will be canceled by the
Trustee. All canceled Certificated Notes held by
the Trustee shall be disposed of by the Trustee in
accordance with its customary procedures, and the
Trustee shall furnish to the Company a certificate
with respect to such disposition.
Settlement
Procedures: Settlement Procedures with regard to each
Certificated Note purchased by an Agent, as
principal, or through an Agent, as agent, shall be
as follows:
A. The Offering Agent will advise the Company by
telephone (and confirm in writing by
facsimile) of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the
"Registered Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices
and payments of principal, premium,
if any, and interest.
3. Taxpayer identification number of the
Registered Owner.
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4. Principal amount and Authorized
Denomination.
5. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Whether such Note is a Regular
Floating Rate Note, Inverse
Floating Rate Note or Floating
Rate/Fixed Rate Note.
(ii) Interest Rate Basis or Bases.
(iii) Initial Interest Rate.
(iv) Spread and/or Spread
Multiplier, if any.
(v) Initial Interest Reset Date
and Interest Reset Dates.
(vi) Interest Payment Dates.
(vii) Index Maturity, if any.
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(viii) Maximum and/or Minimum
Interest Rates, if any.
(ix) Day Count Convention.
(x) Calculation Agent.
(xi) Fixed Rate Commencement Date,
if any, and Fixed Interest
Rate, if any.
(xii) Other terms, if any.
6. Price to public of such Certificated
Note (or whether such Note is being
offered at varying prices relating to
prevailing market prices at time of
resale as determined by the Offering
Agent).
7. Trade Date.
8. Settlement Date (Original Issue Date).
9. Stated Maturity Date.
10. Redemption provisions, if any.
11. Repayment provisions, if any.
12. Net proceeds to the Company.
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13. The Offering Agent's discount or
commission.
14. Whether such Note is being sold to
the Offering Agent as principal or to an
investor or other purchaser through the
Offering Agent acting as agent for the
Company.
15. Such other information specified
with respect to such Note (whether by
Addendum or otherwise).
B. After receiving such settlement
information from the Offering Agent, the
Company will advise Chase of the above
settlement information by facsimile
transmission confirmed by telephone. The
Company will transmit to the Trustee by
telex or facsimile its written request
for the authentication and delivery of
such Certificated Note and the name of
such Agent. Each such request by the
Company shall constitute a
representation and warranty by the
Company to the Trustee that (i) the
Certificated Note is then, and at the
time of issuance and sale thereof will
be, duly authorized for issuance and
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sale by the Company, (ii) the
Certificated Note will conform with the
terms of the Indenture, (iii) such
Certificated Note, when completed,
authenticated and delivered pursuant to
the Indenture, will constitute the valid
and legally binding obligation of the
Company, and (iv) upon authentication
and delivery of such Certificated Note,
the aggregate principal amount of all
Notes initially offered and issued under
the Indenture will not exceed
$ (except for Notes
----------
represented by and authenticated and
delivered in exchange for or in lieu of
Notes in accordance with the Indenture).
X. Xxxxx will complete the Certificated
Note and send a copy thereof by
facsimile to the Company for
verification. In the event any Note is
incorrectly prepared, Chase shall
promptly prepare a corrected Note in
exchange for such incorrectly prepared
Note.
The Trustee will authenticate the
Certificated Note in the form
approved by the Company and the
Offering Agent, and will make three
copies thereof (herein called "Stub
1", "Stub 2" and "Stub 3"):
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1. Certificated Note with the Offering
Agent's confirmation, if traded on a
principal basis, or the Offering Agent's
customer confirmation, if traded on an
agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Offering Agent.
4. Stub 3 for the Company.
D. With respect to each trade, the
Trustee will deliver the Certificated
Note and Stub 2 thereof to the Offering
Agent at the following applicable
address: [name/address], Attention:
[name/phone], telecopier [fax];
[name/address], Attention: [name/phone],
telecopier [fax]; [name/address],
Attention: [name/phone], telecopier
[fax]; and [name/address], Attention:
[name/phone], telecopier [fax]; and the
Trustee will keep Stub 1. The Offering
Agent will acknowledge receipt of the
Certificated Note through a broker's
receipt and will keep Stub 2. Delivery
of the Certificated Note will be made
only against such acknowledgment of
receipt. Upon determination that the
Certificated Note has been authorized,
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delivered and completed as
aforementioned, the Offering Agent will
wire the net proceeds of the
Certificated Note after deduction of its
applicable commission to the Company
pursuant to standard wire instructions
given by the Company.
E. In the case of a Certificated Note
sold through the Offering Agent, as
agent, the Offering Agent will deliver
such Certificated Note (with the
confirmation) to the purchaser against
payment in immediately available funds.
F. The Trustee will send Stub 3 to the Company.
Settlement
Procedures
Timetable: For offers to purchase Certificated Notes accepted
by the Company, Settlement Procedures A through F
set forth above shall be completed as soon as
possible following the trade but not later than the
respective times (New York City time) set forth
below:
SETTLEMENT
PROCEDURE TIME
---------- ----
A 11:00 A.M. on the trade date or
within one hour following the trade
B 12:00 noon on the trade date or
within one hour following the trade
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C-D 2:15 P.M. on Settlement Date
E 3:00 P.M. on Settlement Date
F 5:00 P.M. on Settlement Date
Failure to
Settle: In the case of Certificated Notes sold through the
Offering Agent, as agent, if an investor or other
purchaser of a Certificated Note from the Company
shall either fail to accept delivery of or make
payment for such Certificated Note on the date
fixed for settlement, the Offering Agent will
forthwith notify the Trustee and the Company by
telephone, confirmed in writing, and return such
Certificated Note to the Trustee.
The Trustee, upon receipt of such Certificated Note
from the Offering Agent, will immediately advise
the Company and the Company will promptly arrange
to credit the account of the Offering Agent in an
amount of immediately available funds equal to the
amount previously paid to the Company by such
Offering Agent in settlement for such Certificated
Note. Such credits will be made on the Settlement
Date if possible, and in any event not later than
the Business Day following the Settlement Date;
provided that the Company has received notice on
the same day. If such failure shall have occurred
for any reason other than failure by such Offering
Agent to perform its obligations hereunder or under
the Distribution Agreement, the Company will
reimburse such Offering Agent on an equitable basis
for its reasonable loss of the use of funds during
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the period when the funds were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which the
failure occurred, the Trustee will cancel and
dispose of such Certificated Note in accordance
with its customary procedures, make appropriate
entries in its records to reflect the fact that
such Certificated Note was never issued, and
accordingly notify in the Company writing.
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SCHEDULE D
----------
Additional Matters to be Included
in Accountants' Comfort Letter Pursuant to
Section 7(a)(iv) of Distribution Agreement
------------------------------------------
PROSPECTUS CAPTION ITEMS
------------------ -----
"Ratio of Earnings to Fixed "Ratio of Earnings to Fixed Charges"
Charges" and supporting calculations shown on
Exhibit 12.1 to the Registration
Statement
FORM 10-K OR 10-Q CAPTION ITEMS
------------------------- -----
"REVIEW OF THE FINANCIAL CONDITION Changes in total operating revenues
AND RESULTS OF OPERATIONS OF PPL
CORPORATION AND PPL ELECTRIC
UTILITIES CORPORATION" ,
"Operating Revenues"
(or similar caption)
"REVIEW OF THE FINANCIAL CONDITION The Company's actual construction
AND RESULTS OF OPERATIONS OF PPL expenditures during the year ended
CORPORATION AND PPL ELECTRIC [last year ended] and [prior year
UTILITIES CORPORATION" , "Capital ended]
Expenditure Requirements"
(or similar caption)
"SELECTED FINANCIAL AND OPERATING The Company's times interest earned
DATA OF PPL ELECTRIC UTILITIES before income taxes for [last year
CORPORATION"-- ended] and [prior year ended]
"Financial Ratios"
(or similar caption)
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