PPL ENERGY SUPPLY, LLC UNDERWRITING AGREEMENT
Exhibit
1(b)
PPL
ENERGY SUPPLY, LLC
$150,000,000
6.20%
Senior Notes due
2016
July 13,
2006
BNP
Paribas Securities Corp.,
Credit
Suisse Securities (USA) LLC,
Scotia
Capital (USA) Inc.,
As
Representatives of the Several Underwriters,
c/o
BNP
Paribas Securities Corp.,
000
Xxxxxxx Xxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000.
Ladies
and Gentlemen:
| 1. |
Introductory.
|
PPL
Energy Supply, LLC, a limited liability company organized under the laws of
the
State of Delaware (the “Company”),
proposes to issue and sell, and the several Underwriters named in Section 3
hereof (the “Underwriters”),
for
whom you are acting as representatives (the “Representatives”)
propose, severally and not jointly, to purchase, upon the terms and conditions
set forth herein, $150,000,000 aggregate principal amount of the Company’s 6.20%
Senior Notes due
2016
(the “Notes”)
to be
issued under an Indenture, dated as of October 1, 2001, between the Company
and
JPMorgan Chase Bank, N.A. (formerly The Chase Manhattan Bank), as trustee
thereunder (the “Trustee”),
as
heretofore supplemented and as to be further supplemented by Supplemental
Indenture No. 6 thereto relating to the Notes (“Supplemental
Indenture No. 6”)
(as so
supplemented, the “Indenture”).
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
an
automatic shelf registration statement on Form S-3 (No. 333-132574-01),
including the related preliminary prospectus or prospectuses, which registration
statement became effective upon filing under Rule 462(e) (“Rule
462(e)”)
of the
rules and regulations of the Commission (the “Securities
Act Regulations”)
under
the Securities Act of 1933, as amended (the “Securities
Act”).
Such
registration statement covers the registration of the Notes under the Securities
Act. Promptly after the date of this Agreement, the Company will prepare and
file a prospectus in accordance with the provisions of Rule 430B (“Rule
430B”)
of the
Securities Act Regulations and paragraph (b) of Rule 424 (“Rule
424(b)”)
of the
Securities Act Regulations. Any information included in such prospectus that
was
omitted from such registration statement at the time it became effective but
that is deemed to be part of and included in such registration statement
pursuant to Rule 430B is referred to as “Rule
430B Information.”
Each
prospectus used in connection with the offering of the Notes that omitted Rule
430B Information (other than a “free writing prospectus” as defined in Rule 405
of the Securities Act Regulations that has not been approved in writing by
the
Company and the Representatives) is herein called a “preliminary
prospectus.”
Such
registration statement, at any given time, including the amendments thereto
to
such time, the exhibits and any schedules thereto at such time, the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act at such time and the documents otherwise deemed to be a part
thereof or included therein by the Securities Act Regulations, is herein called
the “Registration
Statement.”
The
Registration Statement at the time it originally became effective is herein
called the “Original
Registration Statement.”
The
final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Notes, including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
as
of the date hereof and any preliminary prospectuses that form a part thereof,
is
herein called the “Prospectus.”
For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to any
of
the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references
of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in or
otherwise deemed by the Securities Act Regulations to be a part of or included
in the Registration Statement, any preliminary prospectus or the Prospectus,
as
the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the “Exchange
Act”)
which
is incorporated by reference in or otherwise deemed by the Securities Act
Regulations to be a part of or included in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be.
| 2. |
Representations
and Warranties.
|
The
Company represents and warrants to each Underwriter as of the date hereof,
the
Applicable Time referred to in Section 2(b) hereof and as of the Closing Date
referred to in Section 5 hereof, and agrees with each Underwriter as
follows:
(A)
At
the time of filing the Original Registration Statement, (B) at the time of
the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), (C) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
of the Securities Act Regulations) made any offer relating to the Notes in
reliance on the exemption of Rule 163 of the Securities Act Regulations or
made
a bona
fide
offer
(within the meaning of Rule 164(h)(2) of the Securities Act Regulations and
(D)
at the date hereof, the Company was and is eligible to register and issue the
Notes as a “well-known seasoned issuer” as defined in Rule 405 of the Securities
Act Regulations (“Rule
405”),
including not having been and not being an “ineligible issuer” as defined in
Rule 405. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Notes, since their registration on
the Registration Statement, have been and remain eligible for registration
by
the Company on a Rule 405 “automatic shelf registration statement.” The Company
has not received from the Commission any notice pursuant to Rule 401(g)(2)
of
the Securities Act Regulations objecting to the use of the automatic shelf
registration statement form.
(a) The
Original Registration Statement became effective upon filing under Rule 462(e)
of the Securities Act Regulations on March 20, 2006, and any post-effective
amendment thereto also became effective upon filing under Rule 462(e). No stop
order suspending the effectiveness of the Registration Statement and/or any
notice objecting to its use has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request
on
the part of the Commission for additional information has been complied
with.
Any
offer
that is a written communication relating to the Notes made prior to the filing
of the Original Registration Statement by the Company or any person acting
on
its behalf (within the meaning, for this paragraph only, of Rule 163(c) of
the
Securities Act Regulations) has been filed with the Commission in accordance
with the exemption provided by Rule 163 of the Securities Act Regulations
(“Rule
163”)
and
otherwise complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the exemption
from Section 5(c) of the Securities Act provided by Rule 163.
At
the
respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the Securities Act Regulations and at the Closing
Date, the Registration Statement complied and will comply in all material
respects with the requirements of the Securities Act and the Securities Act
Regulations and the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”)
and
the rules and regulations thereunder, and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
Neither
the Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the Closing
Date, included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Each
preliminary prospectus (including the prospectus or prospectuses filed as part
of the Original Registration Statement or any amendment thereto) complied when
so filed in all material respects with the Securities Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use
in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
As
of the
Applicable Time, neither (x) the Issuer General Use Free Writing Prospectus(es)
issued at or prior to the Applicable Time, the Statutory Prospectus and the
Issuer Free Writing Prospectus, including the Final Term Sheet prepared and
filed pursuant to Section 6(b) identified on Schedule A hereto, all
considered together (collectively, the “General
Disclosure Package”),
nor
(y) any individual Issuer Limited Use Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement
of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were
made, not misleading.
As
of the
time of the filing of the Final Term Sheet, the General Disclosure Package,
when
considered together with the Final Term Sheet, will not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time”
means
2:35 p.m. (New York City time) on July 13, 2006 or such other time as
agreed by the Company and the Representatives.
“Issuer
Free Writing Prospectus”
means
any “issuer free writing prospectus,” as defined in Rule 433 of the Securities
Act Regulations (“Rule
433”),
relating to the Notes that (i) is required to be filed with the Commission
by
the Company, (ii) is a “road show that is a written communication” within the
meaning of Rule 433(d)(8)(i), whether or not required to be filed with the
Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it contains a description of the Notes or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with
the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Issuer
General Use Free Writing Prospectus”
means
any Issuer Free Writing Prospectus that is intended for general distribution
to
prospective investors, as evidenced by its being specified in Schedule A
hereto.
“Issuer
Limited Use Free Writing Prospectus”
means
any Issuer Free Writing Prospectus that is not an Issuer General Use Free
Writing Prospectus.
“Permitted
Free Writing Prospectus”
means
any free writing prospectus consented to in writing by the Company and the
Representatives. For the avoidance of doubt, any free writing prospectus that
is
not consented to in writing by the Company does not constitute a Permitted
Free
Writing Prospectus and will not be an Issuer Free Writing Prospectus.
“Statutory
Prospectus”
as
of
any time means the prospectus relating to the Notes that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the completion of the public offer and sale of the Notes or until any
earlier date that the Company notified or notifies the Representatives as
described in Section 6(g), did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement or the Prospectus, including any
document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein or to any statements in or omissions
from the Statement of Eligibility of the Trustee under the Indenture. At the
effective date of the Registration Statement, the Indenture conformed in all
material respects to the Trust Indenture Act and the rules and regulations
thereunder;
(b) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, has the power
and authority to own its property and to conduct its business as described
in
the General Disclosure Package and the Prospectus and to enter and perform
its
obligations under this Agreement, the Indenture and the Notes and
is
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the
Company and its subsidiaries, taken as a whole;
(c) The
Notes
have been duly authorized by the Company and, when issued, authenticated and
delivered in the manner provided for in the Indenture and delivered against
payment of the consideration therefor, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms, except
to
the extent limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or moratorium laws or by other laws now or hereafter in effect
relating to or affecting the enforcement of creditors’ rights and by general
equitable principles (regardless of whether considered in a proceeding in equity
or at law), an implied covenant of good faith and fair dealing and consideration
of public policy, and federal or state securities law limitations on
indemnification and contribution (the “Enforceability
Exceptions”);
the
Notes will be in the forms established pursuant to, and entitled to the benefits
of, the Indenture; and the Notes will conform in all material respects to the
statements relating thereto contained in the General Disclosure Package and
the
Prospectus;
(d) The
Indenture has been duly authorized by the Company and, when Supplemental
Indenture No. 6 is executed and delivered by the Company, and assuming due
authorization, execution and delivery of Supplemental Indenture No. 6 by
the Trustee, will constitute a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms, except
to
the extent limited by the Enforceability Exceptions; the Indenture conforms
and
will conform in all material respects to the statements relating thereto
contained in the Prospectus; and at the effective date of the Registration
Statement, the Indenture was duly qualified under the Trust Indenture
Act;
(e) The
Company is in compliance in all material respects with its Certificate of
Formation and Limited Liability Company Agreement;
(f) No
consent, approval, authorization, order, registration or qualification of or
with any federal, state or local governmental agency or body or any federal,
state or local court is required to be obtained by the Company in connection
with its execution and delivery of this Agreement, the Indenture or the Notes,
or the performance by the Company of its obligations hereunder or thereunder,
except such as have been obtained and such as may be required under the blue
sky
laws of any jurisdiction in connection with the purchase and distribution of
the
Notes by the Underwriters in the manner contemplated herein and in the
Prospectus;
(g) Neither
the execution and delivery of this Agreement or Supplemental Indenture No.
6 or
the issue and sale of the Notes, nor the consummation of any of the transactions
herein or therein contemplated, will violate any law or any regulation, order,
writ, injunction or decree of any court or governmental instrumentality
applicable to the Company, or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the Company’s
Certificate of Formation or Limited Liability Company Agreement, or any material
agreement or instrument to which the Company or any of its subsidiaries is
a
party or by which it is bound, except in each case for such violations, breaches
or defaults that would not in the aggregate have a material adverse effect
on
the Company’s ability to per-form its obligations hereunder or thereunder;
(h) The
consolidated financial statements of the Company and its subsidiaries, together
with the related notes and schedules, each set forth or incorporated by
reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Securities Act
and
the Exchange Act and the related published rules and regulations thereunder;
such audited financial statements have been prepared in all material respects
in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and no material
modifications are required to be made to the unaudited interim financial
statements for them to be in conformity with generally accepted accounting
principles;
(i) This
Agreement has been duly and validly authorized, executed and delivered by the
Company;
(j) Since
the
respective dates as of which information is given in the General Disclosure
Package and the Prospectus, except as otherwise stated therein or contemplated
thereby, there has been no event or occurrence that would result in a material
adverse change in the financial position or results of operations of the Company
and its subsidiaries taken as a whole;
(k) The
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Prospectus,
will
not be, an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended;
(l) PricewaterhouseCoopers
LLP, who have audited certain financial statements of the Company and its
consolidated subsidiaries and issued their report with respect to the audited
consolidated financial statements and schedules included and incorporated by
reference in the Prospectus, is an independent registered public accounting
firm
with respect to the Company during the periods covered by their reports within
the meaning of the Securities Act and the Securities Act Regulations. Ernst
& Young LLP, who have performed certain agreed-upon procedures with respect
to certain financial statements of the Company and its consolidated
subsidiaries, are independent public accountants with respect to the Company
within the meaning of the Securities Act and the Securities Act Regulations;
and
(m) The
Company maintains systems of internal accounting controls sufficient to provide
reasonable assurance that transactions are executed in accordance with
management’s authorizations and transactions are recorded as necessary to permit
preparation of financial statements.
Each
of
you, as one of the several Underwriters, represents and warrants to, and agrees
with, the Company, its directors and such of its officers as shall have signed
the Registration Statement, and to each other Underwriter, that the information
set forth in Schedule B hereto furnished to the Company by or through you
or on your behalf expressly for use in the Registration Statement or the
Prospectus does not contain an untrue statement of a material fact and does
not
omit to state a material fact in connection with such information required
to be
stated therein or necessary to make such information not
misleading.
| 3. |
Purchase
and Sale of Notes.
|
On
the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein contained, the Company agrees to
sell
to the Underwriters, and the Underwriters agree, severally and not jointly,
to
purchase from the Company, at a purchase price of 98.796% of the principal
amount thereof, plus accrued interest, if any, from the date of the first
authentication of the Notes to the Closing Date (as hereinafter defined), the
respective principal amounts of the Notes set forth below opposite the names
of
such Underwriters.
|
Underwriters
|
Principal
Amount
of
Notes
|
|
BNP
Paribas Securities Corp. .
|
$
37,500,000
|
|
Credit
Suisse Securities (USA) LLC
|
37,500,000
|
|
Scotia
Capital (USA) Inc.
|
37,500,000
|
|
LaSalle
Financial Services, Inc.
|
18,750,000
|
|
KeyBanc
Capital Markets, a Division of McDonald Investments Inc.
|
18,750,000
|
|
|
|
|
Total
|
$
150,000,000
|
| 4. |
Public
Offering.
|
The
several Underwriters agree that as soon as practicable, in their judgment,
they
will make a public offering of their respective portions of the Notes in
accordance with the terms set forth in the Prospectus.
| 5. |
Delivery
and Payment.
|
(a)
The
Notes will be represented by one or more definitive global securities in
book-entry form which will be deposited by or on behalf of the Company with
The
Depository Trust Company (“DTC”)
or its
designated custodian. The Company will deliver the Notes to you against payment
by you of the purchase price therefor (such delivery and payment herein referred
to as the “Closing”)
by
wire transfer of immediately available funds to the Company’s account (“PPL
Energy Supply, LLC” Xx. 0 000 000) xx Xxxxxx Xxxx, XX (XXX Routing
Number 000000000) by 10:00 A.M., New York Time, on the Closing
Date. Such payment shall be made upon delivery of the Notes for the account
of
BNP Paribas Securities Corp. at DTC. The Notes so to be delivered will be in
fully registered form in such authorized denominations as established pursuant
to the Indenture. The Company will make the Notes available for inspection
by
you at the office of JPMorgan Chase Bank, 0 Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxx not later than 10:00 A.M., New
York Time, on the business day next preceding the Closing Date.
(b)
Each
Underwriter represents and agrees that, unless it obtains the prior written
consent of the Company and the Representatives, it has not and will not make
any
offer relating to the Notes that would constitute or would use an “issuer free
writing prospectus” as defined in Rule 433 or that would otherwise constitute a
“free writing prospectus” as defined in Rule 405 of the Securities Act
Regulations that would be required to be filed with the Commission, other than
information contained in the Final Term Sheet prepared in accordance with
Section 6(b).
The
term
“Closing
Date”
wherever used in this Agreement shall mean July 18, 2006, or such other
date (i) not later than the seventh full business day thereafter as maybe agreed
upon in writing by the Company and you, or (ii) as shall be determined by
postponement pursuant to the provisions of Section 10 hereof.
| 6. |
Certain
Covenants of the Company.
|
The
Company covenants and agrees with the several Underwriters as
follows:
(a) The
Company, subject to Section 6(b), will comply with the requirements of Rule
430B
and will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
or
new registration statement relating to the Notes shall become effective, or
any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request
by
the Commission for any amendment to the Registration Statement or the filing
of
a new registration statement or any amendment or supplement to the Prospectus
or
any document incorporated by reference therein or otherwise deemed to be a
part
thereof or for additional information, (iv) of the issuance by the Commission
of
any stop order suspending the effectiveness of the Registration Statement or
such new registration statement and/or any notice objecting to its use or of
any
order preventing or suspending the use of any preliminary prospectus, or of
the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of
such purposes or of any examination pursuant to Section 8(e) of the Securities
Act concerning the Registration Statement and (v) if the Company becomes the
subject of a proceeding under Section 8A of the Securities Act in connection
with the offering of the Notes. The Company will effect the filings required
under Rule 424(b), in the manner and within the time period required by Rule
424(b) (without reliance on Rule 424(b)(8)). The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
The Company shall pay the required Commission filing fees relating to the Notes
within the time required by Rule 456(b)(1)(i) of the Securities Act Regulations
without regard to the proviso therein and otherwise in accordance with Rules
456(b) and 457(r) of the Securities Act Regulations (including, if applicable,
by updating the “Calculation of Registration Fee” table in accordance with Rule
456(b)(1)(ii) either in a post-effective amendment to the Registration Statement
or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) The
Company will give the Representatives notice of its intention to file or prepare
any amendment to the Registration Statement or new registration statement
relating to the Notes or any amendment, supplement or revision to either any
preliminary prospectus (including any prospectus included in the Original
Registration Statement or amendment thereto at the time it became effective)
or
to the Prospectus, whether pursuant to the Securities Act, the Exchange Act
or
otherwise, and the Company will furnish the Representatives with copies of
any
such documents a reasonable amount of time prior to such proposed filing or
use,
as the case may be, and will not file or use any such document to which the
Representatives shall reasonably object in writing. The Company will give the
Representatives notice of its intention to make any such filing pursuant to
the
Exchange Act or Exchange Act Regulations from the Applicable Time to the Closing
Date and will furnish the Representatives with copies of any such documents
a
reasonable amount of time prior to such proposed filing and will not file or
use
any such document to which the Representatives shall reasonably object in
writing. The Company will prepare a final term sheet (the “Final
Term Sheet”)
reflecting the final terms of the Notes, in form and substance reasonably
satisfactory to the Representatives, and shall file such Final Term Sheet as
an
“Issuer Free Writing Prospectus” prior to the close of business two Business
Days after the date hereof (“Business
Day”
shall
mean any day other than a Saturday, a Sunday or a legal holiday or a day on
which banking institutions or trust companies are authorized or obligated by
law
to close in The City of New York); provided
that the
Company shall furnish the Representatives with copies of any such Final Term
Sheet a reasonable amount of time prior to such proposed filing and will not
use
or file any such document to which the Representatives shall reasonably object
in writing.
(c) The
Company will furnish to each Underwriter, without charge, during the period
when
the Prospectus is required to be delivered under the Securities Act, as many
copies of the Prospectus and any amendments and supplements thereto as each
Underwriter may reasonably request.
(d) The
Company agrees that before amending and supplementing the preliminary prospectus
or the Prospectus, it will furnish to the Representatives a copy of each such
proposed amendment or supplement and that it will not use any such proposed
amendment or supplement to which the Representatives reasonably object in
writing.
(e) The
Company will use its best efforts to qualify the Notes and to assist in the
qualification of the Notes by you or on your behalf for offer and sale under
the
securities or “blue sky” laws of such jurisdictions as you may designate, to
continue such qualification in effect so long as required for the distribution
of the Notes and to reimburse you for any expenses (including filing fees and
fees and disbursements of counsel) paid by you or on your behalf to qualify
the
Notes for offer and sale, to continue such qualification, to determine its
eligibility for investment and to print any preliminary or supplemental “blue
sky” survey or legal investment memorandum relating thereto; provided
that the
Company shall not be required to qualify as a foreign corporation in any State,
to consent to service of process in any State other than with respect to claims
arising out of the offering or sale of the Notes, or to meet any other
requirement in connection with this paragraph (b) deemed by the Company to
be unduly burdensome;
(f) The
Company will promptly deliver to you a true and correct copy of the Registration
Statement as originally filed and of all amendments thereto heretofore or
hereafter filed, including conformed copies of all exhibits except those
incorporated by reference, and such number of conformed copies of the
Registration Statement (but excluding the exhibits), each related preliminary
prospectus, the Prospectus, and any amendments and supplements thereto, as
you
may reasonably request;
(g) If
at any
time prior to the completion of the sale of the Notes by the Underwriters (as
determined by the Representatives), any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to amend or supplement the
Prospectus to comply with the Securities Act, the Company promptly (i) will
notify the Representatives of any such event; (ii) subject to the requirements
of paragraph (b) of this Section 4, will prepare an amendment or supplement
that
will correct such statement or omission or effect such compliance; and (iii)
will supply any supplemented or amended Prospectus to the several Underwriters
without charge in such quantities as they may reasonably request; provided
that the
expense of preparing and filing any such amendment or supplement (i) that
is necessary in connection with such a delivery of a prospectus more than nine
months after the date of this Agreement or (ii) that relates solely to the
activities of any Underwriter shall be borne by the Underwriter or Underwriters
or the dealer or dealers requiring the same; and provided further
that you
shall, upon inquiry by the Company, advise the Company whether or not any
Underwriter or dealer which shall have been selected by you retains any unsold
Notes and, for the purposes of this subsection (g), the Company shall be
entitled to assume that the distribution of the Notes has been completed when
it
is advised by you that no Underwriter or such dealer retains any Notes. If
at
any time following issuance of an Issuer Free Writing Prospectus, there occurs
an event or development as a result of which such Issuer Free Writing Prospectus
would conflict with the information contained in the Registration Statement
(or
any other registration statement related to the Notes) or the Statutory
Prospectus or any preliminary prospectus would include an untrue statement
of a
material fact or would omit to state a material fact necessary in order to
make
the statements therein, in the light of the circumstances prevailing at that
subsequent time, not misleading, the Company will promptly notify the
Representatives and will promptly amend or supplement, at its own expense,
such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission;
(h) The
Company will, as soon as practicable, make generally available to its security
holders an earnings statement covering a period of at least twelve months
beginning after the “effective date of the registration statement” within the
meaning of Rule 158 under the Securities Act which will satisfy the
provisions of Section 11(a) of the Act;
(i) The
Company will pay or bear (i) all expenses in connection with the matters
herein required to be performed by the Company, including all expenses (except
as provided in Section 6(g) above) in connection with the preparation and filing
of the Registration Statement, the General Disclosure Package and the
Prospectus, and any amendment or supplement thereto, and the furnishing of
copies thereof to the Underwriters, and all audits, statements or reports in
connection therewith, and all expenses in connection with the issue and delivery
of the Notes to the Underwriters at the place designated in Section 5 hereof,
any fees and expenses relating to the eligibility and issuance of the Notes
in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes, all federal and state taxes (if any) payable (not including
any
transfer taxes) upon the original issue of the Notes; (ii) all expenses in
connection with the printing, reproduction and delivery of this Agreement and
the printing, reproduction and delivery of any preliminary prospectus and each
Prospectus, and (except as provided in Section 6(g) above) any amendment or
supplement thereto, to the Underwriters; (iii) any and all fees payable in
connection with the rating of the Notes; and (iv) the reasonable fees and
expenses of the Trustee, including the fees and disbursements of counsel for
the
Trustee, in connection with the Indenture and the Notes;
(j) During
the period from the date of this Agreement through the Closing Date, the Company
shall not, without the Underwriters’ prior written consent, directly or
indirectly, sell, offer to sell, grant any option for the sale of, or otherwise
dispose of, any Notes, any security convertible into or exchangeable into or
exercisable for Notes or any debt securities substantially similar to the Notes
(except for the Notes issued pursuant to this Agreement); and
(k) The
Company represents and agrees that, unless it obtains the prior consent of
the
Representatives (such consent not to be unreasonably withheld), it has not
made
and will not make any offer relating to the Notes that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405 of the Securities Act Regulations,
required to be filed with the Commission. The Company represents that it has
treated or agrees that it will treat each Permitted Free Writing Prospectus
as
an “issuer free writing prospectus,” as defined in Rule 433, and has complied
and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping in accordance with the Securities Act
Regulations.
| 7. |
Conditions
of Underwriters’ Obligations.
|
The
obligations of the several Underwriters to purchase and pay for the Notes on
the
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein at the date of this
Agreement and the Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) You
shall
have received from PricewaterhouseCoopers LLP a letter, dated the date of this
Agreement, in form and substance reasonably satisfactory to you and
PricewaterhouseCoopers LLP, confirming that PricewaterhouseCoopers LLP is an
independent registered public accounting firm with respect to the Company within
the meaning of the Securities Act and the Securities Act Rules and Regulations,
and stating in effect that, in their opinion, the consolidated financial
statements and supplemental financial statement schedule of the Company audited
by them and included or incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act and the Exchange Act, and the related
published rules and regulations thereunder.
(b) You
shall
have received from Ernst & Young LLP letters, dated the date of this
Agreement and the Closing Date, confirming that Ernst & Young LLP is an
independent registered public accounting firm with respect to the Company within
the meaning of the Securities Act and the Securities Act Regulations and
that:
(i) they
have
read the minutes of the meetings of the Board of Managers of the Company and
Unanimous Written Consents of Managers in Lieu of Meetings of the Company as
set
forth in the minute books at a specified date not more than five days prior
to
the date of delivery of such letter;
(ii) they
have
performed the procedures specified by the Public Company Accounting Oversight
Board (United States) for a review of interim financial information as described
in Statement on Auditing Standards No. 100, Interim
Financial Information,
on the
unaudited condensed interim financial statements of the Company included or
incorporated by reference in the Registration Statement and have read the
unaudited interim financial data for the period from the date of the latest
balance sheet included or incorporated by reference in the Registration
Statement to the date of the latest available interim financial data;
and
(iii) on
the
basis of the review referred to in clause (ii) above, a reading of the latest
available interim financial statements of the Company, they have performed
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters regarding the specific items for which
representations are requested below and other specified procedures, nothing
came
to their attention that caused them to believe that:
(A) any
material modifications should be made to the unaudited condensed interim
financial statements included or incorporated by reference in the Registration
Statement for them to be in conformity with generally accepted accounting
principles;
(B) the
unaudited condensed interim financial statements included or incorporated by
reference in the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
the
Exchange Act and the related published rules and regulations thereunder;
or
(C) at
the
date of the latest available interim balance sheet of the Company and at a
specified date not more than five days prior to the date of such letter, there
was any increase in long-term debt or increase in notes payable to affiliates,
as compared with amounts shown on the latest consolidated balance sheet included
or incorporated by reference in the Registration Statement; except in all cases
for changes, increases or decreases that the Registration Statement discloses
have occurred or may occur or that are described in such letter;
and
(iv) they
have
read certain financial and statistical amounts included or incorporated by
reference in the Registration Statement and the Prospectus, which amounts are
set forth in such letter and agreed such amounts to the Company’s accounting
records which are subject to controls over financial reporting or which have
been derived directly from such accounting records by analysis or computation
and have found such amounts to be in agreement with such results, except as
otherwise specified in such letter and such other procedures as the Underwriters
may request and Ernst & Young LLP is willing to perform and report
upon.
(c) The
Registration Statement shall have become effective and on the Closing Date
no
stop order suspending the effectiveness of the Registration Statement and/or
any
notice objecting to its use shall have been issued under the Securities Act
or
proceedings therefor initiated or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel to the Underwriters.
A
prospectus containing the Rule 430B Information shall have been filed with
the
Commission in the manner and within the time period required by Rule 424(b)
without reliance on Rule 424(b)(8) (or a post-effective amendment providing
such
information shall have been filed and become effective in accordance with the
requirements of Rule 430B). The Company shall have paid the required Commission
filing fees relating to the Notes within the time period required by Rule
456(1)(i) of the Securities Act Regulations without regard to the proviso
therein and otherwise in accordance with Rules 456(b) and 457(r) of the
Securities Act Regulations and, if applicable, shall have updated the
“Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii)
either in a post-effective amendment to the Registration Statement or the cover
page of a prospectus filed pursuant to Rule 424(b).
(d) Subsequent
to the execution of this Agreement, there shall not have occurred (i) any
material adverse change not contemplated by the Prospectus (as it exists on
the
date hereof) in or affecting particularly the business or properties of the
Company which, in your judgment, materially impairs the investment quality
of
the Notes; (ii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for
trading on such exchange, or any suspension of trading of any securities of
the
Company on any exchange or in the over-the-counter market; (iii) a general
banking moratorium declared by federal or New York authorities or a
material disruption in securities settlement, payment or clearance services
in
the United States; (iv) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any
other substantial national or international calamity or emergency if, in your
reasonable judgment, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical and inadvisable to proceed with
completion of the sale of and payment for the Notes and you shall have made
a
similar determination with respect to all other underwritings of debt securities
of utility or energy companies in which you are participating and have a
contractual right to make such a determination; or (v) any decrease in the
ratings of the Notes by Standard & Poor’s Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc., Xxxxx’x Investors Service, Inc. or Fitch, Inc.
or any such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
the
Notes.
(e) You
shall
have received from Xxxxxx X. Xxxxx, Esq., Senior Counsel, or such other counsel
for the Company as may be acceptable to you, an opinion in form and substance
satisfactory to you, dated the Closing Date and addressed to you, as
Representatives of the Underwriters, to the effect that:
(i) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with power
and
authority to own its properties and conduct its business as described in the
General Disclosure Package and the Prospectus;
(ii) The
Notes
have been duly authorized, executed and delivered by the Company and, assuming
due authentication and delivery by the Trustee in the manner provided for in
the
Indenture, and delivery against payment therefor, constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except to the
extent limited by the Enforceability Exceptions;
(iii) The
Indenture has been duly authorized, executed and delivered by the Company,
and,
assuming due authorization, execution and delivery by the Trustee, constitutes
a
valid and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent limited by the
Enforceability Exceptions;
(iv) The
descriptions in the Registration Statement, the General Disclosure Package
and
the Prospectus of statutes, legal and governmental proceedings and contracts
and
other documents are accurate and fairly present the information required to
be
shown; and (1) such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement, any
Statutory Prospectus or the Prospectus which are not described, or of any
contracts or documents of a character required to be described in the
Registration Statement, any Statutory Prospectus or the Prospectus or to be
filed as exhibits to the Registration Statement which are not described and
filed as required and (2) nothing has come to the attention of such counsel
that
would lead such counsel to believe either that the Registration Statement,
as of
its applicable effective date, contained any untrue statement of a material
fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the General Disclosure
Package, as of the Applicable Time, or the Prospectus, as supplemented, as
of
the date of this Agreement, and as it shall have been amended or supplemented,
as of the Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial statements and other financial data contained in
the
Registration Statement, the General Disclosure Package or the
Prospectus;
(v) This
Agreement has been duly authorized, executed and delivered by the
Company;
(vi) No
consent, approval, authorization or other order of any public board or body
of
the United States or the Commonwealth of Pennsylvania (except for the
registration of the Notes under the Act and the qualification of the Indenture
under the Trust Indenture Act and other than in connection or compliance with
the provisions of the securities or “blue sky” laws of any jurisdiction, as to
which such counsel need express no opinion) is legally required for the
authorization of the issuance and sale of the Notes; and
(vii) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture and the Notes will not
contravene (i) the Company’s Certificate of Formation or Limited Liability
Company Agreement, (ii) to the best of such counsel’s knowledge, any indenture,
bank loan or credit agreement or other evidence of indebtedness binding upon
the
Company or any agreement or other instrument binding upon the Company that,
in
the case of any such agreement specified in this clause (ii) is material to
the
Company, or (iii) to the best of such counsel’s knowledge, any judgment, order
or decree of any governmental body, agency or court having jurisdiction over
the
Company.
In
rendering such opinion, such counsel may rely as to matters governed by New
York
law upon the opinion of Xxxxx Xxxxxxxxxx LLP referred to in Section 7(f) of
this
Agreement.
(f) You
shall
have received from Xxxxx Xxxxxxxxxx LLP, counsel to the Company, an opinion
in
form and substance satisfactory to you, dated the Closing Date and addressed
to
you, as Representatives of the Underwriters, to the effect that:
(i) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware;
(ii) The
Notes
have been duly authorized, executed and delivered by the Company and, assuming
due authentication and delivery by the Trustee in the manner provided for in
the
Indenture, will constitute valid and binding obligations of the Company entitled
to the benefits of the Indenture, enforceable against the Company in accordance
with their terms, except to the extent limited by the Enforceability
Exceptions;
(iii) The
Indenture has been duly authorized, executed and delivered by the Company,
is
duly qualified under the Trust Indenture Act and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent limited by the Enforceability
Exceptions;
(iv) (1) The
Registration Statement has become effective under the Act, and any preliminary
prospectus included in the General Disclosure Package at the Applicable Time
and
the Prospectus were filed with the Commission pursuant to the subparagraph
of
Rule 424(b) specified in such opinion on the date or dates specified
therein, and the Issuer General Use Free Writing Prospectus described in
Schedule A attached hereto was filed with the Commission pursuant to Rule 433
on
the date specified in such opinion; (2) to the best of the knowledge of
such counsel after inquiry of the Company and the staff of the Commission,
no
stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued and no proceedings for that purpose have been
instituted under the Act; (3) the Registration Statement, as of its effective
date, the General Disclosure Package, as of the Applicable Time, the Prospectus,
as of the date of this Agreement, and any amendment or supplement thereto,
as of
its date, complied as to form in all material respects with the requirements
of
the Act, the Trust Indenture Act and the Rules and Regulations thereunder;
and
(4) nothing has come to the attention of such counsel that would lead such
counsel to believe either that the Registration Statement, as of its effective
date, the General Disclosure Package, as of the Applicable Time, 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, as supplemented, as of the date of this
Agreement, and as it shall have been amended or supplemented, as of the Closing
Date, contained or contains any untrue statement of a material fact or omits
or
omitted to state any material fact necessary to make the statements therein,
in
the light of the circumstances under which they were made, not misleading;
it
being understood that such counsel need express no opinion as to the financial
statements and other financial or statistical data contained or incorporated
by
reference in the Registration Statement, the General Disclosure Package or
the
Prospectus;
(v) The
statements in the Prospectus under the caption “Description of the Notes”,
insofar as they purport to constitute summaries of certain terms of the
Indenture and the Notes, in each case constitute accurate summaries of such
terms of such document and securities, in all material respects;
(vi) This
Agreement has been duly authorized, executed and delivered by the
Company;
(vii) No
consent, approval, authorization or other order of any public board or body
of
the United States or the State of New York (except for the registration of
the
Notes under the Act and the qualification of the Indenture under the Trust
Indenture Act and other than in connection or compliance with the provisions
of
the securities or “blue sky” laws of any jurisdiction, as to which such counsel
need express no opinion) is legally required for the authorization of the
issuance of the Notes; and
(viii) The
Company is not an “investment company” as such term is defined in the Investment
Company Act of 1940, as amended.
In
rendering such opinion, Xxxxx Xxxxxxxxxx LLP may rely as to matters governed
by
Pennsylvania law upon the opinion of Xxxxxx X. Xxxxx, Esq. or such other
counsel referred to in subsection (d).
(g) You
shall
have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
such opinion or opinions in form and substance satisfactory to you, dated the
Closing Date, with respect to matters as you may require, and the Company shall
have furnished to such counsel such documents as they request for the purpose
of
enabling them to pass upon such matters. In rendering such opinion or opinions,
Xxxxxxxx & Xxxxxxxx LLP may rely as to matters governed by Pennsylvania law
upon the opinion of Xxxxxx X. Xxxxx, Esq. or such other counsel referred to
above.
(h) You
shall
have received a certificate, dated the Closing Date, of the Controller and
the
Treasurer or Assistant Treasurer of the Company, in which such officers, to
the
best of their knowledge after reasonable investigation, shall state that (i)
the
representations and warranties of the Company in this Agreement are true and
correct in all material respects as of the Closing Date, (ii) the Company has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date, (iii) no stop order suspending the effectiveness of the Registration
Statement and/or any notice objecting to its use has been issued, and no
proceedings for that purpose have been instituted or are pending by the
Commission, and (iv) subsequent to the date of the latest financial statements
in the Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company except as set forth or
contemplated in the Prospectus or as described in such certificate.
(i) You
shall
have received from the Company a copy of the rating letters from Standard &
Poor’s Ratings Service, a Division of The XxXxxx-Xxxx Companies, Xxxxx’x
Investors Service, Inc. and Fitch, Inc. assigning ratings on the Notes of at
least BBB, Baa2 and BBB+, respectively.
The
Company will furnish you as promptly as practicable after the Closing Date
with
such conformed copies of such opinions, certificates, letters and documents
as
you may reasonably request.
In
case
any such condition shall not have been satisfied, this Agreement may be
terminated by you upon notice in writing or by telegram to the Company without
liability or obligation on the part of the Company or any Underwriter, except
as
provided in Sections 6(e), 6(i), 9, 11 and 13 hereof.
| 8. |
Conditions
of Company’s Obligations.
|
The
obligations of the Company to sell and deliver the Notes on the Closing Date
are
subject to the condition that at the Closing Date no stop order suspending
the
effectiveness of the Registration Statement and/or any notice objecting to
its
use shall be in effect or proceeding therefor shall have been instituted or,
to
the knowledge of the Company, shall be contemplated.
If
such
condition shall not have been satisfied, then the Company shall be entitled,
by
notice in writing or by telegram to you, to terminate this Agreement without
any
liability on the part of the Company or any Underwriter, except as provided
in
Sections 6(e), 6(i), 9, 11 and 13 hereof.
| 9. |
Indemnification
and Contribution.
|
(a) The
Company agrees that it will indemnify and hold harmless each Underwriter and
the
officers and directors of each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Securities Act,
against any loss, expense, claim, damage or liability to which, jointly or
severally, such Underwriter or such controlling person may become subject,
under
the Securities Act or otherwise, insofar as such loss, expense, claim, damage
or
liability (or actions in respect thereof) arises out of or is based upon any
untrue statement or alleged untrue statement of any material fact contained
in
the Registration Statement, any Statutory Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or any amendment or supplement to any thereof,
or
arises out of or is based upon the omission or alleged omission to state therein
any material fact required to be stated therein or necessary to make the
statements therein not misleading and, except as hereinafter in this Section
provided, the Company agrees to reimburse each Underwriter and each person
who
controls any Underwriter as aforesaid for any reasonable legal or other expenses
as incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, expense, claim, damage or liability;
provided,
however,
that
the Company shall not be liable in any such case to the extent that any such
loss, expense, claim, damage or liability arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission made
in
any such document in reliance upon, and in conformity with, written information
furnished to the Company as set forth in Schedule B hereto by or through
you on behalf of any Underwriter expressly for use in any such document or
arises out of, or is based on, statements or omissions from the part of the
Registration Statement which shall constitute the Statement of Eligibility
under
the Trust Indenture Act of the Trustee under the Indenture.
(b) Each
Underwriter, severally and not jointly, agrees that it will indemnify and hold
harmless the Company and its officers and directors, and each of them, and
each
person, if any, who controls the Company within the meaning of Section 15 of
the
Securities Act, against any loss, expense, claim, damage or liability to which
it or they may become subject, under the Securities Act or otherwise, insofar
as
such loss, expense, claim, damage or liability (or actions in respect thereof)
arises out of or is based on any untrue statement or alleged untrue statement
of
any material fact contained in the Statutory Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or any amendment or supplement to any thereof,
or
arises out of or is based upon the omission or alleged omission to state therein
any material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, and only to
the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any such documents in reliance upon, and in
conformity with, written information furnished to the Company as set forth
in
Schedule B hereto by or through you on behalf of such Underwriter expressly
for use in any such document; and, except as hereinafter in this Section
provided, each Underwriter, severally and not jointly, agrees to reimburse
the
Company and its officers and directors, and each of them, and each person,
if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, for any reasonable legal or other expenses incurred by it or them in
connection with investigating or defending any such loss, expense, claim, damage
or liability.
(c) Upon
receipt of notice of the commencement of any action against an indemnified
party, the indemnified party shall, with reasonable promptness, if a claim
in
respect thereof is to be made against an indemnifying party under its agreement
contained in this Section 9, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify an indemnifying party shall
not relieve it from any liability which it may have to the indemnified party
otherwise than under its agreement contained in this Section 9. In the case
of
any such notice to an indemnifying party, the indemnifying party shall be
entitled to participate at its own expense in the defense, or if it so elects,
to assume the defense, of any such action, but, if it elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the indemnified party and to any other indemnifying party that
is a defendant in the suit. In the event that any indemnifying party elects
to
assume the defense of any such action and retain such counsel, the indemnified
party shall bear the fees and expenses of any additional counsel retained by
it.
No indemnifying party shall be liable in the event of any settlement of any
such
action effected without its consent. Each indemnified party agrees promptly
to
notify each indemnifying party of the commencement of any litigation or
proceedings against it in connection with the issue and sale of the
Notes.
(d) If
any
Underwriter or person entitled to indemnification by the terms of subsection
(a)
of this Section 9 shall have given notice to the Company of a claim in respect
thereof pursuant to subsection (c) of this Section 9, and if such claim for
indemnification is thereafter held by a court to be unavailable for any reason
other than by reason of the terms of this Section 9 or if such claim is
unavailable under controlling precedent, such Underwriter or person shall be
entitled to contribution from the Company for liabilities and expenses, except
to the extent that contribution is not permitted under Section 11(f) of the
Securities Act. In determining the amount of contribution to which such
Underwriter or person is entitled, there shall be considered the relative
benefits received by such Underwriter or person and the Company from the
offering of the Notes that were the subject of the claim for indemnification
(taking into account the portion of the proceeds of the offering realized by
each), the Underwriter or person’s relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The Company and
the Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if
the
Underwriters were treated as one entity for such purpose).
(e) No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
in
respect of which indemnification or contribution could be sought under this
Section 9 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes
an
unconditional release of each indemnified party and all liability arising out
of
such litigation, investigation, proceeding or claim, and (ii) does not
include a statement as to or an admission of fault, culpability or the failure
to act by or on behalf of any indemnified party.
(f) The
indemnity and contribution provided for in this Section 9 and the
representations and warranties of the Company and the several Underwriters
set
forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of any Underwriter
or
any person controlling any Underwriter or the Company or their respective
directors or officers, (ii) the acceptance of any Notes and payment therefor
under this Agreement, and (iii) any termination of this Agreement.
| 10. |
Default
of Underwriters.
|
If
any
Underwriter or Underwriters default in their obligations to purchase Notes
hereunder, the non-defaulting Underwriters may make arrangements satisfactory
to
the Company for the purchase of such Notes by other persons, including any
of
the non-defaulting Underwriters, but if no such arrangements are made by the
Closing Date, the other Underwriters shall be obligated, severally in the
proportion which their respective commitments hereunder bear to the total
commitment of the non-defaulting Underwriters, to purchase the Notes which
such
defaulting Underwriter or Underwriters agreed but failed to purchase. In the
event that any Underwriter or Underwriters default in their obligations to
purchase Notes hereunder, the Company may by prompt written notice to
non-defaulting Underwriters postpone the Closing 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 the Prospectus or in any other
documents, 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 “Underwriter” includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve
an Underwriter from liability for its default.
| 11. |
Survival
of Certain Representations and Obligations.
|
The
respective indemnities, agreements, representations and warranties of the
Company and of or on behalf of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter or the Company or any of its officers or directors or any
controlling person, and will survive delivery of and payment for the Notes.
If
for any reason the purchase of the Notes by the Underwriters is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 6, and the respective obligations of the Company
and
the Underwriters pursuant to Section 9 hereof shall remain in
effect.
| 12. |
Notices.
|
The
Company shall be entitled to act and rely upon any statement, request, notice
or
agreement on behalf of each of the Underwriters if the same shall have been
made
or given by you jointly or by BNP Paribas Securities Corp. All statements,
requests, notices, consents and agreements hereunder shall be in writing, or
by
telegraph subsequently confirmed in writing, and, if to the Company, shall
be
sufficient in all respects if delivered or mailed to the Company at Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000 (facsimile: 610-774-5235), Attn:
Treasurer, and, if to you, shall be sufficient in all respects if delivered
or
mailed to you at the address set forth on the first page hereof (a copy of
which
shall be sent to BNP Paribas Securities Corp., Attention: Syndicate Desk
(facsimile: 212-841-3930)); provided,
however,
that
any notice to an Underwriter pursuant to Section 9 hereof will also be delivered
or mailed to such Underwriter at the address, if any, of such Underwriter
furnished to the Company in writing for the purpose of communications
hereunder.
| 13. |
No
Advisory or Fiduciary Relationship.
|
The
Company acknowledges and agrees that (a) the purchase and sale of the Notes
pursuant to this Agreement, including the determination of the public offering
price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several
Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction, each
Underwriter is and has been acting solely as a principal and is not the agent
or
fiduciary of the Company, or its stockholders, creditors, employees or any
other
party, (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from those
of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
| 14. |
Parties
in Interest.
|
This
Agreement shall inure solely to the benefit of the Company and the Underwriters
and, to the extent provided in Section 9 hereof, to any person who controls
any
Underwriter, to the officers and directors of the Company, and to any person
who
controls the Company, and their respective successors. No other person,
partnership, association or corporation shall acquire or have any right under
or
by virtue of this Agreement. The term “successor” shall not include any assignee
of an Underwriter (other than one who shall acquire all or substantially all
of
such Underwriter’s business and properties), nor shall it include any purchaser
of Notes from any Underwriter merely because of such purchase.
| 15. |
Representation
of Underwriters.
|
Any
action under this Agreement taken by the Representatives will be binding upon
all the Underwriters.
| 16. |
Counterparts.
|
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all such counterparts shall together constitute
one and the same Agreement.
| 17. |
Effectiveness.
|
This
Agreement shall become effective upon the execution and delivery hereof by
the
parties hereto.
| 18. |
Applicable
Law.
|
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
| 19. |
Headings.
|
The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
Please
confirm that the foregoing correctly sets forth the agreement between us
by
signing in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Yours
very truly,
PPL
ENERGY SUPPLY, LLC
By: _________________________________
Name:
Title:
The
foregoing Underwriting Agreement is hereby
confirmed
and accepted as of the date first above written.
BNP
PARIBAS SECURITIES CORP.
CREDIT
SUISSE SECURITIES (USA) LLC
SCOTIA
CAPITAL (USA) INC.
By:
BNP
PARIBAS SECURITIES CORP.
_______________________________
Name:
Title:
Acting
severally on behalf of
themselves
and as Representatives of
the
several Underwriters named in
Section
3
hereof.
SCHEDULE A
Issuer
General Use
Free
Writing Prospectus
Final
Terms and Conditions, dated July 13, 2006, for $150,000,000 aggregate
principal amount of 6.20% Senior Notes due 2016, filed with the Commission
by
the Company pursuant to Rule 433 under the Securities Act.
SCHEDULE B
Information
Represented and Warranted by the Underwriters
Pursuant
to Section 2 of Underwriting Agreement
| 1. |
The
third paragraph under the caption “Underwriting” in the Prospectus
Supplement;
|
| 2. |
The
second half of the first sentence and the second sentence of the
sixth
paragraph under the caption “Underwriting” in the Prospectus Supplement;
and
|
| 3. |
The
seventh paragraph under the heading “Underwriting” in the Prospectus
Supplement.
|
