PPL ENERGY SUPPLY, LLC UNDERWRITING AGREEMENT
Exhibit
1(a)
PPL
ENERGY SUPPLY, LLC
$300,000,000
5.70%
REset Put Securities due
2035
October
20, 2005
Xxxxxx
Xxxxxxx & Co. Incorporated,
Barclays
Capital Inc.,
UBS
Securities LLC,
As
Representatives of the Several Underwriters,
c/o
Morgan
Xxxxxxx & Co. Incorporated,
0000
Xxxxxxxx,
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, $300,000,000 aggregate principal amount of the Company’s 5.70%
REset Put Securities ("REPSSM") due
2035
(the "Notes")
to be
issued under an Indenture, dated as of October 1, 2001, between the Company
and
JPMorgan Chase Bank (formerly The Chase Manhattan Bank), as trustee thereunder
(the "Trustee"),
as
supplemented by Supplemental Indenture No. 3 ("Supplemental
Indenture No.
3"),
to be
dated as of October 15, 2005 (as so supplemented, the "Indenture").
2. |
Representations
and Warranties.
|
The
Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) The
Company has filed with the Securities and Exchange Commission (the "Commission")
a
registration statement (No. 333-128219) on Form S-3, including a prospectus,
covering the registration of the Notes under the Securities Act of 1933,
as
amended (the "Act"),
and
such registration statement has become effective. Such registration statement,
as amended at the time of its effectiveness, and any post-effective amendment
thereto filed subsequent to the date hereof, are hereinafter referred to
as the
"Registration
Statement."
The
prospectus dated as of September 27, 2005, as supplemented to reflect the
terms
of the offering and sale of the Notes by a prospectus supplement to be filed
with the Commission pursuant to Rule 424(b) of the published rules and
regulations of the Commission (the "Rules
and Regulations")
under
the Act, including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus." Any reference herein to the
Registration Statement or the Prospectus shall be deemed to refer to and
include
all documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act and the information,
if any,
deemed to be part thereof pursuant to Rule 430A(b) of the Rules and
Regulations. Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement or the Prospectus
shall
be deemed to refer to and include the filing after the date of this agreement
and prior to the termination of the offering of the Notes by the Underwriters
of
any document under the Securities Exchange Act of 1934, as amended (the
"Exchange
Act"),
deemed
to be incorporated therein by reference;
(b) On
its
effective date, the Registration Statement conformed in all material respects
to
the requirements of the Act, the Trust Indenture Act of 1939, as amended
(the
"Trust
Indenture Act"),
and
the Rules and Regulations thereunder and did not contain an untrue statement
of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and to the Company’s
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission; as of its date and on the date of this
Agreement, the Prospectus conformed or conforms in all material respects
to the
requirements of the Act and the Rules and Regulations thereunder, and the
Prospectus did not and does 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, and as of the date of any amendment
or supplement thereto 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; and, as of the date of this Agreement,
no
post-effective amendment to the Registration Statement was required to be
filed
under the Act and the Rules and Regulations thereunder, provided
that the
foregoing representations and warranties in this subsection (b) shall not
apply
to statements or omissions made in reliance upon and in conformity with
information furnished hereunder or otherwise in writing to the Company by
or on
behalf of any Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus 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;
(c) 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 Prospectus and to enter and perform its obligations under this Agreement,
the Indenture, the Remarketing Agreement (the "Remarketing
Agreement"),
to be
entered into between the Company and Xxxxxx Xxxxxxx & Co. International
Limited (the "Remarketing
Dealer"),
the
Credit Support Agreement (the "Credit
Support Agreement"),
to be
entered into between the Company and the Remarketing Dealer, 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;
(d) The
Remarketing Agreement has been duly authorized by the Company and, when executed
and delivered by the Company will constitute a valid and binding obligation
of
the Company enforceable against the Company in accordance with its 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 (the "Enforceability
Exceptions"),
and
federal or state securities law limitations on indemnification and
contribution;
(e) 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 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 Prospectus;
(f) The
Indenture has been duly authorized by the Company and, when Supplemental
Indenture No. 3 is executed and delivered by the Company, and assuming
due
authorization, execution and delivery of Supplemental Indenture No. 3
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;
(g) The
Company is in compliance in all material respects with its Certificate of
Formation and Limited Liability Company Agreement;
(h) 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, the
Remarketing Agreement, the Credit Support Agreement 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;
(i) Neither
the execution and delivery of this Agreement, Supplemental Indenture No. 3,
the Remarketing Agreement or the Credit Support Agreement 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;
(j) The
Company is not subject to regulation under the Public Utility Holding Company
Act of 1935, as amended ("PUHCA"),
as a
"registered holding company", or as a "subsidiary company", "affiliate" or
"associate company" of a "registered holding company", within the meaning
of
PUHCA;
(k) 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 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;
(l) Each
of
this Agreement and the Credit Support Agreement has been duly and validly
authorized, executed and delivered by the Company;
(m) 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 in the financial position or results of operations of the Company
and its
subsidiaries taken as a whole;
(n) 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;
(o) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and its
subsidiaries, is an independent registered public accounting firm with respect
to the Company and its subsidiaries as required by the Securities Act;
and
(p) 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 A 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 103.650% (which includes
a
consideration of 4.32%
payable by Xxxxxx Xxxxxxx & Co. International Limited for the right to serve
as Remarketing Dealer) 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
|
Xxxxxx
Xxxxxxx & Co. Incorporated
|
$
97,500,000
|
Barclays
Capital Inc.
|
$
97,500,000
|
UBS
Securities LLC.
|
$
75,000,000
|
BNP
Paribas Securities Corp.
|
$
15,000,000
|
HSBC
Securities (USA) Inc.
|
$
15,000,000
|
Total
|
$
300,000,000
|
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.
|
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" No. 2-964-823) at Mellon Bank, NA (ABA 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 Barclays
Capital Inc. at DTC. The Notes so to be delivered will be in fully registered
form in such authorized denominations as established pursuant to the Indenture.
The Company will make the Notes available for inspection by you at the office
of
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.
The
term
"Closing
Date"
wherever
used in this Agreement shall mean October 26, 2005, 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:
(a) To
prepare the Prospectus in a form approved by you and to file the Prospectus
with
the Commission pursuant to Rule 424(b) not later than the second business
day
following the execution and delivery of this Agreement; to advise you promptly
of any such filing pursuant to Rule 424(b); to advise you promptly
of any
proposal to amend or supplement the Registration Statement or the Prospectus
(including through the filing of any document that would as a result of such
filing be incorporated or deemed to be incorporated by reference into the
Prospectus), and not to file or effect such amendment or supplement if you
have
reasonably objected in writing; also to advise you promptly of (i) any
amendment or supplement to the Registration Statement or the Prospectus
(including through the filing of any document that would as a result of such
filing be incorporated or deemed to be incorporated by reference into the
Prospectus), (ii) any request by the Commission for any amendment
or
supplement to the Registration Statement or the Prospectus or for additional
information, and (iii) the institution by the Commission of any stop
order
proceedings in respect of the Registration Statement or the initiation of
any
proceedings for that purpose, and to use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued;
(b) To
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;
(c) Promptly
to deliver to you one copy of the signed 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;
(d) If
at any
time when a prospectus relating to the Notes is required to be delivered
under
the Act in connection with sales by an Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented would
contain an 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 at any
time to
amend the Prospectus to comply with the Act in connection with sales by an
Underwriter or dealer, to advise you of such event or necessity, as the case
may
be, and, promptly upon request made by you, to prepare and file with the
Commission an amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance; 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 (d), 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;
(e) As
soon
as practicable to 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 Act which will satisfy the provisions of Section
11(a)
of the Act;
(f) To
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(d) above) 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 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(d) above) any amendment or supplement thereto, to the
Underwriters; (iii) any and all fees payable in connection with the
rating
of the Notes; (iv) the fees and expenses of the Company’s accountants and fees
and expenses of counsel (including any local or special counsel) for the
Company; and (v) 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; and
(g) 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).
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 Act and the Rules and Regulations, and stating in effect
that:
(i) in
their
opinion, the consolidated financial statements and supplemental financial
statement schedule of the Company audited by them and included or incorporated
by reference in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the Act and the Exchange
Act, and the related published Rules and Regulations thereunder;
(ii) they
have
read the minutes of the meetings of the Board of Managers of the Company
and
Unanimous Written Consents of Managers in Lieu of Meetings of the Company
as set
forth in the minute books at a specified date not more than five days prior
to
the date of delivery of such letter;
(iii) 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;
(iv) on
the
basis of the review referred to in clause (iii) 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 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 business days prior to the date of such
letter, there was any increase in long-term debt (including current portion
of
long-term debt), long-term debt with affiliate trust, and note payable to
affiliate of the Company, as compared with amounts shown on the latest
consolidated balance sheet included or incorporated by reference in the
Registration Statement; except in all cases for changes, increases or decreases
that the Registration Statement discloses have occurred or may occur or that
are
described in such letter; and
(v) they
have
read certain financial and statistical amounts included or incorporated by
reference in the Registration Statement and the Prospectus, which amounts
are
set forth in such letter and agreed such amounts to the Company’s accounting
records which are subject to controls over financial reporting or which have
been derived directly from such accounting records by analysis or computation
and have found such amounts to be in agreement with such results, except
as
otherwise specified in such letter and such other procedures as the Underwriters
may request and PricewaterhouseCoopers LLP is willing to perform and report
upon.
(b) The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 6(a) of this Agreement; and prior
to
Closing no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted, or, to the knowledge of the Company, shall be contemplated by
the
Commission and you shall have received at the Closing, a certificate, dated
the
Closing Date, of the Company to such effect.
(c) 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 Group, Xxxxx’x Investors
Service 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.
(d) 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
Prospectus;
(ii) The
Remarketing Agreement has been duly authorized, executed and delivered by
the
Company and 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 and federal or state securities
law limitations on indemnification and contribution;
(iii) 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;
(iv) 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;
(v) 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 (1) 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 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, at its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, 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
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 or the Prospectus;
(vi) Each
of
this Agreement and the Credit Support 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 Commonwealth of Pennsylvania (other than in connection
or compliance with the provisions of the securities or åblue skyæ 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
(viii) The
execution and delivery by the Company of, and the performance by the Company
of
its obligations under, this Agreement, the Indenture, the Remarketing Agreement,
the Credit Support Agreement 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(e)
of this
Agreement.
(e) 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
Remarketing Agreement has been duly authorized, executed and delivered by
the
Company and 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 and federal or state securities
law limitations on indemnification and contribution;
(iii) 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 legally 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;
(iv) 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;
(v) (1) The
Registration Statement has become effective under the Act, and the Prospectus
was filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein; (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 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, at its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required
to
be stated therein or necessary to make the statements therein not misleading,
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 or the Prospectus;
(vi) The
statements in the Prospectus under the captions "Description of the Debt
Securities" and "Description of the REPS," 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;
(vii) The
statements made in the prospectus supplement under the caption "Certain United
States Federal Income and Estate Tax Considerations," insofar as they purport
to
constitute a summary of United States federal tax law and regulations or
legal
conclusions with respect thereto, and subject to the exceptions, limitations
and
qualifications contained therein, constitute an accurate summary of the matters
described therein in all material respects;
(viii) Each
of
this Agreement and the Credit Support Agreement has been duly authorized,
executed and delivered by the Company;
(ix) No
consent, approval, authorization or other order of any public board or body
of
the United States or the State of New York (other than in connection or
compliance with the provisions of the securities or åblue skyæ 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
(x) 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).
(f) 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.
(g) You
shall
have received a certificate, dated the Closing Date, of the Controller and
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 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 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;
(h) You
shall
have received from the Company a copy of the rating letters from Standard
&
Poor’s, Xxxxx’x Investors Service and Fitch, Inc. assigning ratings on the Notes
of at least BBB, Baa2 and BBB+, respectively; and
(i) You
shall
have received a letter from PricewaterhouseCoopers LLP, dated the Closing
Date,
which meets the requirements of subsection (a) of this Section, except that
the
specified date referred to in such subsection will be a date not more than
five
days prior to the Closing Date for the purposes of this subsection.
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(b), 6(f), 10, 12 and 14 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 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(b), 6(f), 10, 12 and 14 hereof.
9. |
No
Fiduciary Duty.
|
The
Company acknowledges that in connection with the offering of the Notes: (a)
the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (b) the Underwriters owe the
Company
only those duties and obligations set forth in this Agreement and (c) the
Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims
it may
have against the Underwriters arising from an alleged breach of fiduciary
duty
in connection with the offering of the Notes.
10. |
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 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 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, any related preliminary 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 A 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; and provided
further,
that
with respect to any untrue statement or alleged untrue statement or omission
or
alleged omission made in any preliminary prospectus or supplement, the
indemnity
agreement contained in this subsection (a) shall not inure to the benefit
of any
Underwriter 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 Underwriter), 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 sent or given by or on behalf of such Underwriter to such
person at or prior to the written confirmation of the sale of such Notes
to such
person, and if the Prospectus (not including documents incorporated by
reference
therein) or the Prospectus as then amended or supplemented (not including
documents incorporated by reference therein) would have cured the defect
giving
rise to such loss, claim, damage or liability, unless such failure is the
result
of noncompliance by the Company with Section 6(c).
(b) Each
Underwriter 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 Act, against any loss,
expense, claim, damage or liability to which it or they may become subject,
under the 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, any related preliminary 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 A 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 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
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 10, 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 10. 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.
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 10 shall have given notice to the Company of a claim in
respect
thereof pursuant to subsection (c) of this Section 10, 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 10 or if such claim is
unavailable under controlling precedent, such Underwriter or person shall
be
entitled to contribution from the Company to liabilities and expenses,
except to
the extent that contribution is not permitted under Section 11(f) of the
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 10 (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 10 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.
11. |
Default
of Underwriters.
|
If,
on
the Closing Date, any one or more of the Underwriters shall fail or refuse
to
purchase Notes that it has or they have agreed to purchase hereunder on such
date, and the aggregate principal amount of Notes which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more
than one-tenth of the aggregate principal amount of Notes to be purchased
on
such 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, or in such other proportions as you may specify,
to
purchase the Notes which such defaulting Underwriter or Underwriters agreed
but
failed or refused to purchase on such date; provided
that in
no event shall the principal amount of Notes that any Underwriter has agreed
to
purchase pursuant to this Agreement be increased pursuant to this Section
11 by
an amount in excess of one-ninth of such principal amount of Notes without
the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or
Underwriters shall fail or refuse to purchase Notes which it or they have
agreed
to purchase hereunder on such date and the aggregate principal amount of
Notes
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Notes to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Notes
are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or of the
Company. In any such case either you or the Company shall have the right
to
postpone the Closing Date, but in no event for longer 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.
12. |
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 10 hereof shall remain in
effect.
13. |
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 Xxxxxx Xxxxxxx & Co. Incorporated. 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 Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Syndicate
Department); provided,
however,
that
any notice to an Underwriter pursuant to Section 10 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.
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 10 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.
20. |
Entire
Agreement.
|
This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that
relate
to the offering of the Notes, represents the entire agreement between the
Company, on the one hand, and the Underwriters, on the other, with respect
to
the preparation of the Prospectus, and the conduct of the offering, and the
purchase and sale of the Notes.
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: /s/
Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
Vice President and Treasurer
|
The
foregoing Underwriting Agreement is hereby
confirmed
and accepted as of the date first above written.
XXXXXX
XXXXXXX & CO. INCORPORATED
BARCLAYS
CAPITAL INC.
UBS
SECURITIES LLC
Acting
severally on behalf of
themselves
and as Representatives of
the
several Underwriters named in
Section
3
hereof.
By:
XXXXXX
XXXXXXX & CO. INCORPORATED
By: /s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Executive
Director
By:
BARCLAYS
CAPITAL INC.
By: /s/
Xxxxxx Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
Director
By:
UBS
SECURITIES LLC
By: /s/
Xxxxxxxxxxx Xxxxxxxx
Name:
Xxxxxxxxxxx
Xxxxxxxx
Title:
Managing Director
By:
/s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Associate Director
SCHEDULE
A
Information
Represented and Warranted by the Underwriters
Pursuant
to Section 2 of Underwriting Agreement
1. |
The
third paragraph under the caption åUnderwritingæ in the Prospectus
Supplement;
|
2. |
The
second half of the first sentence and the second sentence of the
sixth
paragraph under the caption åUnderwritingæ in the Prospectus Supplement;
and
|
3. |
The
seventh paragraph under the heading åUnderwritingæ in the Prospectus
Supplement.
|