PE ENVIRONMENTAL FUNDING LLC PE RENAISSANCE FUNDING, LLC THE POTOMAC EDISON COMPANY $[ ] SERIES A SENIOR SECURED SINKING FUND ENVIRONMENTAL CONTROL BONDS UNDERWRITING AGREEMENT
Exhibit
1.1
PE
RENAISSANCE FUNDING, LLC
THE
POTOMAC EDISON COMPANY
$[ ]
SERIES A SENIOR
SECURED SINKING FUND ENVIRONMENTAL CONTROL BONDS
[_______________],
2007
To
the
Representative Named in Schedule I
Hereto
of
the Several Underwriters
Named
in
Schedule II hereto
Ladies
and Gentlemen:
1. Introduction.
PE Environmental Funding LLC, a Delaware limited liability company (the
“Issuer”),
proposes to issue and sell $[__________] aggregate principal amount of its
Series A Senior Secured Sinking Fund Environmental Control Bonds (the
“Bonds”),
identified in Schedule
I
hereto.
The Issuer’s direct parent is PE Renaissance Funding, LLC, a special purpose
Delaware limited liability company (“PE
Renaissance”)
established to hold and convey to the Issuer certain environmental control
property (as more fully described in the Financing Order relating to the
Bonds,
the “Environmental
Control Property”).
PE
Renaissance is a wholly-owned subsidiary of The Potomac Edison Company, a
_______________ corporation (“Potomac
Edison”).
The
Issuer, Potomac Edison and PE Renaissance hereby confirm their agreement
with
the several Underwriters (as defined below) as set forth herein.
The
term
“Underwriters”
as
used
herein shall be deemed to mean the entity or several entities named in
Schedule
II
hereto
and any underwriter substituted as provided in Section 8 hereof and the term
“Underwriter”
shall
be deemed to mean any one of such Underwriters. If the entity or entities
listed
in Schedule
I
hereto
(the “Representatives”)
are
the same as the entity or entities listed in Schedule
II
hereto,
then the terms “Underwriters”
and
“Representatives”,
as
used herein, shall each be deemed to refer to such entity or entities. All
obligations of the Underwriters hereunder are several and not joint. If more
than one entity is named in Schedule
I
hereto,
any action under or in respect of this underwriting agreement (“Underwriting
Agreement”)
may be
taken by such entities jointly as the Representatives or by one of the entities
acting on behalf of the Representatives and such action will be binding upon
all
the Underwriters.
Capitalized
terms used and not otherwise defined in this Underwriting Agreement shall
have
the meanings given to them in the Indenture (as defined below).
2. Description
of the Bonds.
The
Bonds will be issued pursuant to an indenture to be dated as of
[______________], 2007, as supplemented by one or more series
supplemental
thereto (as so supplemented, the “Indenture”),
between the Issuer and U.S. Bank National Association, as indenture trustee
(the
“Indenture
Trustee”).
Potomac Edison will transfer the Environmental Control Property to PE
Renaissance pursuant to the Environmental Control Property Transfer Agreement,
to be dated on or about [_____________], 2007, between PE Renaissance and
Potomac Edison (the “Transfer
Agreement”).
The
Bonds will be obligations of the Issuer and will be supported by the transferred
Environmental Control Property (“Transferred
Environmental Control Property”),
to be
sold to the Issuer by PE Renaissance pursuant to the Transferred Environmental
Control Property Sale Agreement, to be dated on or about [_____________],
2007,
between PE Renaissance and the Issuer (the “Sale
Agreement”).
The
Transferred Environmental Control Property will be serviced pursuant to the
Transferred Environmental Control Property Servicing Agreement, to be dated
on
or about [____________], 2007, between Potomac Edison, as servicer, and the
Issuer, as owner of the Transferred Environmental Control Property sold to
it
pursuant to the Sale Agreement (the “Servicing
Agreement”).
3. Representations
and Warranties of the Issuer.
The Issuer represents and warrants to the several Underwriters
that:
(a) The
Issuer and the Bonds meet the requirements for the use of Form S-1 under
the
Securities Act of 1933, as amended (the “Securities
Act”),
and
the Issuer has filed with the Securities and Exchange Commission (the
“Commission”)
a
registration statement on such form on January 11, 2007 (Registration No.
333-139937), as amended by Amendment No. 1 thereto dated March ____, 2007,
including a form of prospectus, for the registration under the Securities
Act of
up to $[__________] aggregate principal amount of the Bonds. Such registration
statement, as amended (“Registration
Statement No. 333-139937”),
has
been declared effective by the Commission and no stop order suspending such
effectiveness 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
Issuer, threatened by the Commission. No environmental control bonds registered
with the Commission under the Securities Act pursuant to Registration Statement
No. 333-139937 have been previously issued. References herein to the term
“Registration
Statement”
shall
be deemed to refer to Registration Statement No. 333-139937, including any
amendment thereto, and any information in a prospectus or a prospectus
supplement deemed or retroactively deemed to be a part thereof pursuant to
Rule
430A (“Rule
430A”)
or
Rule 430C (“Rule
430C”)
under
the Securities Act that has not been superseded or modified. “Registration
Statement” without reference to a time means the Registration Statement as of
the Applicable Time (as defined below), which the parties agree is the time
of
the first Contract of Sale (as used in Rule 159 under the Securities Act)
for
the Bonds, and shall be considered the “Effective
Date”
of
the
Registration Statement relating to the Bonds. For purposes of this definition,
information contained in a form of prospectus or prospectus supplement that
is
deemed retroactively to be a part of the Registration Statement pursuant
to Rule
430A or Rule 430C, shall be considered to be included in the Registration
Statement as of the time specified in Rule 430A or Rule 430C, as appropriate.
The final prospectus and the final prospectus supplement relating to the
Bonds,
as filed with the Commission pursuant to Rule 424(b) under the Securities
Act
(“Rule
424(b)”),
are
referred to herein as the “Final
Prospectus;”
and
the most recent preliminary prospectus and prospectus supplement that omitted
information to be included upon pricing in a form of prospectus filed with
the
Commission pursuant to Rule 424(b) and that was used after the initial
effectiveness of the Registration Statement and prior to
2
the
Applicable Time (as defined below) is referred to herein as the “Pricing
Prospectus.”
The
Issuer is not, and at the time of filing the Registration Statement was not,
an
“ineligible issuer” as defined under Rule 405 of the Securities Act
(“Rule
405”).
(b) (i)
At the earliest time after the filing of the Registration Statement that
the
Issuer or another offering participant made a bona
fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of the Bonds
and
(ii) at the date hereof, the Issuer was not and is not an “ineligible
issuer,” as defined in Rule 405.
(c) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of
the
Securities Act (whether by post-effective amendment, incorporated report
or form
of prospectus) and on the Effective Date relating to the Bonds, the Registration
Statement, and the Indenture, at the Closing Date (as defined below), fully
complied and will fully comply in all material respects with the applicable
requirements of the Securities Act, the Trust Indenture Act of 1939 (the
“Trust
Indenture Act”)
and,
in each case, the applicable instructions, rules and regulations of the
Commission thereunder; the Registration Statement, at each of the aforementioned
dates, did not and will not include any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
to
make the statements therein, in light of the circumstances in which they
were
made, not misleading. As of the Applicable Time (as defined below) and as
of the
Closing Date, the Registration Statement and the Final Prospectus fully complied
and will fully comply in all material respects with the applicable requirements
of the Securities Act, the Trust Indenture Act and the applicable rules and
regulations of the Commission thereunder, and neither of such documents includes
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances in which they were made, not
misleading; provided that the foregoing representations and warranties in
this
paragraph (c) shall not apply to statements or omissions made in reliance
upon
information furnished in writing to the Issuer or Potomac Edison by, or on
behalf of, any Underwriter through the Representatives expressly for use
in
connection with the preparation of the Registration Statement or the Final
Prospectus or to any statements in or omissions from any Statements of
Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee
filed
as exhibits to the Registration Statement or to any statements or omissions
made
in the Registration Statement or the Final Prospectus relating to The Depository
Trust Company (“DTC”)
Book-Entry System that are based solely on information contained in published
reports of the DTC.
(d) As
of its
date, at the Applicable Time (as defined below) and on the date of its filing,
if applicable, and on the Closing Date, the Pricing Prospectus and each Issuer
Free Writing Prospectus (as defined below) (other than the Pricing Term Sheet,
as defined in Section 6(b) below), considered together, did 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
in
which they were made, not misleading (except that (i) the principal amount
of
the Bonds, the tranches, the initial principal balances, the scheduled final
payment dates, the final maturity dates, the expected average lives, and
the
Expected Sinking Fund Schedule described in the Pricing Prospectus supersede
any
previously issued descriptions of such information and (ii) the interest
rate,
price to the public and underwriting discounts and commissions for each tranche
was not included in the Pricing Prospectus). The Pricing Term Sheet, as of its
issue date and at
3
all
subsequent times through the completion of the public offer and sale of the
Bonds, considered together with the Pricing Prospectus and each other Issuer
Free Writing Prospectus, did 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 circumstance in which they are made, not
misleading. The two preceding sentences do not apply to statements in or
omissions from the Pricing Prospectus, the Pricing Term Sheet or any other
Issuer Free Writing Prospectus in reliance upon and in conformity with written
information furnished to the Issuer or Potomac Edison by any Underwriter
through
the Representatives specifically for use therein, it being understood and
agreed
that the only such information furnished by any Underwriter consists of the
information set forth in Schedule
IV
hereto.
“Issuer
Free Writing Prospectus”
means
any “issuer free writing prospectus,” as defined in Rule 433(h) under the
Securities Act, relating to the Bonds, 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
Issuer’s records pursuant to Rule 433(g) under the Securities Act. References to
the term “Free
Writing Prospectus”
shall
mean a free writing prospectus, as defined in Rule 405. References to the
term
“Applicable
Time”
mean
[
], eastern time, on the date hereof, except that if, subsequent to such
Applicable Time, the Issuer, Potomac Edison and the Underwriters have determined
that the information contained in the Pricing Prospectus or any Issuer Free
Writing Prospectus issued prior to such Applicable Time included an untrue
statement of a material fact or omitted to state a material fact necessary
in
order to make the statements therein, in the light of the circumstances in
which
they were made, not misleading and have terminated their old purchase contracts
and entered into new purchase contracts with purchasers of the Bonds, then
“Applicable Time” will refer to the first of such times when such new purchase
contracts are entered into. The Issuer represents, warrants and agrees that
it
has treated and agrees that it will treat each of the free writing prospectuses
listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Free Writing Prospectus
has fully complied and will fully comply with the applicable requirements
of
Rule 164 (“Rule
164”)
and
Rule 433 (“Rule
433”)
under
the Securities Act, including timely Commission filing where required, legending
and record keeping.
(e) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times
through the Closing Date or until any earlier date that Potomac Edison, PE
Renaissance or the Issuer notified or notifies the Representatives as described
in the next sentence, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information then contained
in the Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurred or occurs an event or development
as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement or included
or
would include an untrue statement of a material fact or omitted 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,
(i) Potomac Edison, PE Renaissance or the Issuer has promptly notified or
will promptly notify the Representatives and (ii) Potomac Edison, PE
Renaissance or the Issuer has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not
apply
to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to Potomac
Edison, PE Renaissance or the Issuer by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such
4
information
furnished by any Underwriter consists of the information set forth on
Schedule
IV
hereto.
(f) The
Issuer has been duly formed and is validly existing as a limited liability
company in good standing under the Limited Liability Company Act of the State
of
Delaware, as amended, with full limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
the Bonds, the Sale Agreement, the Servicing Agreement, the Indenture, the
Issuer Administration Agreement and the other agreements and instruments
contemplated by the Pricing Prospectus (collectively, the “Issuer
Documents”)
and to
own its properties and conduct its business as described in the Pricing
Prospectus; the Issuer has been duly qualified as a foreign limited liability
company for the transaction of business and is in good standing under the
laws
of each other jurisdiction in which it owns or leases properties or conducts
any
business so as to require such qualification, except where failure to so
qualify
or to be in good standing would not have a material adverse effect on the
business, properties or financial condition of the Issuer; the Issuer has
conducted and will conduct no business in the future that would be inconsistent
with the description of the Issuer’s business set forth in the Pricing
Prospectus; the Issuer is not a party to or bound by any agreement or instrument
other than the Issuer Documents and other agreements or instruments incidental
to its formation; the Issuer has no material liabilities or obligations other
than those arising out of the transactions contemplated by the Issuer Documents
and as described in the Pricing Prospectus; PE Renaissance is the beneficial
owner of all of the limited liability company interests of the Issuer; and
based
on current law, the Issuer is not classified as an association taxable as
a
corporation for United States federal income tax purposes.
(g) The
issuance and sale of the Bonds by the Issuer, the purchase of the Transferred
Environmental Control Property by the Issuer from PE Renaissance and the
consummation of the transactions herein contemplated by the Issuer, and the
fulfillment of the terms hereof on the part of the Issuer to be fulfilled,
will
not result in a breach of any of the terms or provisions of, or constitute
a
default under the Issuer’s certificate of formation or the Issuer LLC Agreement
(collectively, the “Issuer
Formation Documents”),
or
any indenture, mortgage, deed of trust or other agreement or instrument to
which
the Issuer is now a party.
(h) This
Underwriting Agreement has been duly authorized, executed and delivered by
the
Issuer, which has the necessary limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
and constitutes a valid and binding obligation of the Issuer, enforceable
against the Issuer in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity (including
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law; and
limitations on enforceability of rights to indemnification or contribution
by
federal or state securities laws or regulations or by public
policy.
(i) The
Issuer (i) is not in violation of the Issuer Formation Documents,
(ii) is not in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust or other agreement or instrument to
5
which
it
is a party or by which it is bound or to which any of its properties is subject,
except for any such defaults that would not, individually or in the aggregate,
have a material adverse effect on its business, property or financial condition,
and (iii) is not in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property may be subject, except
for any such violations that would not, individually or in the aggregate,
have a
material adverse effect on its business, property or financial
condition.
(j) The
Indenture has been duly authorized by the Issuer, and, on the Closing Date,
will
have been duly executed and delivered by the Issuer and will be a valid and
binding instrument, enforceable against the Issuer in accordance with its
terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to
or
affecting creditors’ or secured parties’ rights generally and by general
principles of equity (including concepts of materiality, reasonableness,
good
faith and fair dealing), regardless of whether considered in a proceeding
in
equity or at law; and limitations on enforceability of rights to indemnification
by federal or state securities laws or regulations or by public policy. On
the
Closing Date, the Indenture will (i) comply as to form in all material
respects with the requirements of the Trust Indenture Act and (ii) conform
in all material respects to the description thereof in the Pricing Prospectus
and Final Prospectus.
(k) The
Bonds
have been duly authorized by the Issuer for issuance and sale to the
Underwriters pursuant to this Underwriting Agreement and, when executed by
the
Issuer and authenticated by the Indenture Trustee in accordance with the
Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms of this Underwriting Agreement, will constitute
valid
and binding obligations of the Issuer entitled to the benefits of the Indenture
and enforceable against the Issuer in accordance with their terms, except
as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting
creditors’ or secured parties’ rights generally and by general principles of
equity (including concepts of materiality, reasonableness, good faith and
fair
dealing), regardless of whether considered in a proceeding in equity or at
law;
and limitations on enforceability of rights to indemnification by federal
or
state securities laws or regulations or by public policy, and the Bonds conform
in all material respects to the description thereof in the Pricing Prospectus
and Final Prospectus. The Issuer has all requisite limited liability company
power and authority to issue, sell and deliver the Bonds in accordance with
and
upon the terms and conditions set forth in this Underwriting Agreement and
in
the Pricing Prospectus and Final Prospectus.
(l) Other
than as set forth or contemplated in the Pricing Prospectus, there is no
litigation or governmental proceeding to which the Issuer is a party or to
which
any property of the Issuer is subject or which is pending or, to the knowledge
of the Issuer, threatened against the Issuer that would reasonably be expected
to, individually or in the aggregate, result in a material adverse effect
on the
Issuer’s business, property or financial condition.
(m) Other
than any necessary action of the PSCWV, any filings required under the Statute
or the Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except such as have been already obtained and other than in connection
or
in compliance with the provisions of applicable blue-sky laws or securities
laws
of any state, as to which the Issuer
6
makes
no
representations or warranties), is legally required for the issuance and
sale by
the Issuer of the Bonds.
(n) The
Issuer is not, and, after giving effect to the sale and issuance of the Bonds,
will not be, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended (the “1940
Act”).
(o) Each
of
the Sale Agreement, the Servicing Agreement and the Issuer Administration
Agreement has been duly authorized by the Issuer, and when executed and
delivered by the Issuer and the other parties thereto, will constitute a
valid
and legally binding obligation of the Issuer, enforceable against the Issuer
in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of
whether
considered in a proceeding in equity or at law, and limitations on
enforceability of rights to indemnification by federal or state securities
laws
or regulations or by public policy.
4. Representations
and Warranties of Potomac Edison.
Potomac Edison represents and warrants to the several Underwriters
that:
(a) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act
(whether by post effective amendment, incorporated report or form of prospectus)
and on the Effective Date relating to the Bonds, the Registration Statement,
and
the Indenture, on the Closing Date, fully complied and will fully comply
in all
material respects with the applicable requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder; the Registration Statement, at each of the aforementioned dates,
did
not and will not include any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they were
made,
not misleading. As of the Applicable Time and as of the Closing Date, the
Registration Statement and the Final Prospectus fully complied and will fully
comply in all material respects to the requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder, and neither of such documents includes any untrue statement of
a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, that the
foregoing representations and warranties in this paragraph (a) shall not
apply
to statements or omissions made in reliance upon and in conformity with
information furnished in writing to Potomac Edison, PE Renaissance or the
Issuer
by, or on behalf of, any Underwriter through the Representatives expressly
for
use in connection with the preparation of the Registration Statement or the
Final Prospectus, or to any statements in or omissions from any Statement
of
Eligibility on Form T 1, or amendments thereto, of the Indenture Trustee
filed
as exhibits to the Registration Statement or to any statements or omissions
made
in the Registration Statement or Final Prospectus relating to the DTC
Book-Entry-Only System that are based solely on information contained in
published reports of DTC.
7
(b) As
of its
date, at the Applicable Time, on the date of its filing, if applicable, and
on
the Closing Date, the Pricing Prospectus and each Issuer Free Writing Prospectus
(other than the Pricing Term Sheet), considered together, did 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
in
which they were made, not misleading (except that (i) the principal amount
of the Bonds, the tranches, the initial principal balances, the scheduled
final
payment dates, the final maturity dates, the expected average lives, and
the
Expected Sinking Fund Schedule described in the Pricing Prospectus supersede
any
previously issued descriptions of such information and (ii) the interest
rate, price to the public and underwriting discounts and commissions for
each
tranche was not included in the Pricing Prospectus). The Pricing Term Sheet,
as
of its issue date and at all subsequent times through the completion of the
public offer and sale of the Bonds, considered together with the Pricing
Prospectus and each other Issuer Free Writing Prospectus, did 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
in
which they were made, not misleading. The two preceding sentences do not
apply
to statements in or omissions from the Pricing Prospectus, the Pricing Term
Sheet or any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to Potomac Edison, PE Renaissance or the
Issuer by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information set forth in Schedule
IV
hereto.
Potomac Edison represents, warrants and agrees that it has treated and agrees
that it will treat each of the free writing prospectuses listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing
Prospectus has fully complied and will fully comply with the applicable
requirements of Rule 164 and Rule 433, including timely Commission filing
where
required, legending and record keeping
(c) 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 Bonds or until
any
earlier date that Potomac Edison, PE Renaissance or the Issuer notified or
notifies the Representatives as described in the next sentence, did not,
does
not and will not include any information that conflicted, conflicts or will
conflict with the information then contained in the Registration Statement.
If
at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer
Free
Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would include an untrue
statement of a material fact or omitted 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,
(i) Potomac Edison, PE Renaissance or the Issuer has promptly notified or
will promptly notify the Representatives and (ii) Potomac Edison, PE
Renaissance or the Issuer has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two sentences do not
apply
to statements in or omissions from any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to Potomac
Edison, PE Renaissance or the Issuer by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information set forth on Schedule
IV
hereto.
8
(d) Potomac
Edison has been duly formed and is validly existing as a corporation in good
standing under the laws of the State of _____________, has the corporate
power
and authority to execute, deliver and perform its obligations under this
Underwriting Agreement, the Servicing Agreement, the Transfer Agreement and
the
other agreements and instruments contemplated by the Pricing Prospectus
(collectively, the “Potomac
Edison Documents”)
and to
own, lease and operate its properties and to conduct its business as presently
conducted and as set forth in or contemplated by the Pricing Prospectus,
and is
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by
reason
of the ownership or leasing of property or the conduct of business, except
where
the failure to so qualify or be in good standing would not have a material
adverse effect on the business, property or financial condition of Potomac
Edison and its subsidiaries considered as a whole; Potomac Edison has conducted
its business in a manner that is not inconsistent with the description of
Potomac Edison’s business in the Pricing Prospectus. Potomac Edison is the
beneficial owner of all of the limited liability company interests of the
PE
Renaissance and such interests are owned free and clear of all liens,
encumbrances, equities or claims.
(e) Potomac
Edison has no significant subsidiaries within the meaning of Rule 1-02(w)
of
Regulation S-X under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
(f) The
conveyance by Potomac Edison of the Environmental Control Property to PE
Renaissance and the consummation of the transactions herein contemplated
by
Potomac Edison, and the fulfillment of the terms hereof on the part of Potomac
Edison to be fulfilled, will not result in a breach of any of the terms or
provisions of, or constitute a default under, Potomac Edison’s articles of
incorporation or bylaws (collectively, the “Potomac
Edison Charter Documents”),
or in
a material breach of any of the terms of, or constitute a material default
under, any indenture, mortgage, deed of trust or other agreement or instrument
to which Potomac Edison is now a party.
(g) This
Underwriting Agreement has been duly authorized, executed and delivered by
Potomac Edison, which has the necessary corporate power and authority to
execute, deliver and perform its obligations under this Underwriting Agreement,
and constitutes a valid and binding obligation of Potomac Edison, enforceable
against Potomac Edison in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting
creditors’ or secured parties’ rights generally and by general principles of
equity (including concepts of materiality, reasonableness, good faith and
fair
dealing), regardless of whether considered in a proceeding in equity or at
law,
and limitations on enforceability of rights to indemnification or contribution
by federal or state securities laws or regulations or by public
policy.
(h) Potomac
Edison (i) is not in violation of Potomac Edison Charter Documents,
(ii) is not in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust or other agreement or instrument to which it is a
party
or by which it is bound or to which any of its properties is subject, except
for
any such defaults that would not, individually or in the aggregate, have
a
9
material
adverse effect on the business, property or financial condition of Potomac
Edison and its subsidiaries considered as a whole, or (iii) is not in
violation of any law, ordinance, governmental rule, regulation or court decree
to which it or its property may be subject, except for any such violations
that
would not, individually or in the aggregate, have a material adverse effect
on
the business, property or financial condition of Potomac Edison and its
subsidiaries considered as a whole.
(i) Except
as
set forth or contemplated in the Pricing Prospectus, there is no litigation
or
governmental proceeding to which Potomac Edison or any of its subsidiaries
is a
party or to which any property of Potomac Edison or any of its subsidiaries
is
subject or which is pending or, to the knowledge of Potomac Edison, threatened
against Potomac Edison or any of its subsidiaries that would reasonably be
expected to, individually or in the aggregate, result in a material adverse
effect on the Issuer’s business, property, or financial condition or on Potomac
Edison’s ability to perform its obligations under the Sale Agreement and the
Servicing Agreement.
(j) Other
than any necessary action of the PSCWV, any filings required under the Statute
or Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except such as have been already obtained and other than in connection
or
in compliance with the provisions of applicable blue-sky laws or securities
laws
of any state, as to which Potomac Edison makes no representations or
warranties), is legally required for the issuance and sale by the Issuer
of the
Bonds.
(k) Neither
Potomac Edison, PE Renaissance nor the Issuer is, and after giving effect
to the
sale and issuance of the Bonds, neither Potomac Edison, PE Renaissance nor
the
Issuer will be, an “investment company” within the meaning of the 1940
Act.
(l) Each
of
the Transfer Agreement and the Servicing Agreement has been duly and validly
authorized by Potomac Edison, and when executed and delivered by Potomac
Edison
and the other parties thereto each will constitute a valid and legally binding
obligation of Potomac Edison, enforceable against Potomac Edison in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting creditors’ or secured parties’ rights
generally and by general principles of equity (including concepts of
materiality, reasonableness, good faith and fair dealing), regardless of
whether
considered in a proceeding in equity or at law, and limitations on
enforceability of rights to indemnification by federal or state securities
laws
or regulations or by public policy.
(m) There
are
no West Virginia transfer taxes related to the transfer of the Environmental
Control Property or the Transferred Environmental Control Property or the
issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting
Agreement required to be paid at or prior to the Closing Date by Potomac
Edison,
PE Renaissance or the Issuer.
10
5. Representations
and Warranties of PE Renaissance.
PE Renaissance represents and warrants to the several Underwriters
that:
(a) At
the
time the Registration Statement initially became effective, at the time of
each
amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act
(whether by post effective amendment, incorporated report or form of prospectus)
and on the Effective Date relating to the Bonds, the Registration Statement,
and
the Indenture, on the Closing Date, fully complied and will fully comply
in all
material respects with the applicable requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder; the Registration Statement, at each of the aforementioned dates,
did
not and will not include any untrue statement of a material fact or omit
to
state any material fact required to be stated therein or necessary to make
the
statements therein, in the light of the circumstances in which they were
made,
not misleading. As of the Applicable Time and as of the Closing Date, the
Registration Statement and the Final Prospectus fully complied and will fully
comply in all material respects to the requirements of the Securities Act,
the
Trust Indenture Act and the applicable rules and regulations of the Commission
thereunder, and neither of such documents includes any untrue statement of
a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, that the
foregoing representations and warranties in this paragraph (a) shall not
apply
to statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Issuer or PE Renaissance by, or on
behalf of, any Underwriter through the Representatives expressly for use
in
connection with the preparation of the Registration Statement or the Final
Prospectus, or to any statements in or omissions from any Statement of
Eligibility on Form T 1, or amendments thereto, of the Indenture Trustee
filed
as exhibits to the Registration Statement or to any statements or omissions
made
in the Registration Statement or Final Prospectus relating to the DTC
Book-Entry-Only System that are based solely on information contained in
published reports of DTC.
(b) As
of its
date, at the Applicable Time, on the date of its filing, if applicable, and
on
the Closing Date, the Pricing Prospectus and each Issuer Free Writing Prospectus
(other than the Pricing Term Sheet), considered together, did 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
in
which they were made, not misleading (except that (i) the principal amount
of the Bonds, the tranches, the initial principal balances, the scheduled
final
payment dates, the final maturity dates, the expected average lives, and
the
Expected Sinking Fund Schedule described in the Pricing Prospectus supersede
any
previously issued descriptions of such information and (ii) the interest
rate, price to the public and underwriting discounts and commissions for
each
tranche was not included in the Pricing Prospectus). The Pricing Term Sheet,
as
of its issue date and at all subsequent times through the completion of the
public offer and sale of the Bonds, considered together with the Pricing
Prospectus and each other Issuer Free Writing Prospectus, did 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
in
which they were made, not misleading. The two preceding sentences do not
apply
to statements in or omissions from the Pricing Prospectus, the Pricing Term
Sheet or any Issuer Free Writing Prospectus in reliance upon and in conformity
with written information furnished to the Issuer or PE Renaissance by any
Underwriter through
11
the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information set forth in Schedule
IV
hereto.
PE Renaissance represents, warrants and agrees that it has treated and agrees
that it will treat each of the free writing prospectuses listed on Schedule
III
hereto
as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing
Prospectus has fully complied and will fully comply with the applicable
requirements of Rule 164 and Rule 433, including timely Commission filing
where
required, legending and record keeping
(c) 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 Bonds or until
any
earlier date that the Issuer or PE Renaissance notified or notifies the
Representatives as described in the next sentence, did not, does not and
will
not include any information that conflicted, conflicts or will conflict with
the
information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or
occurs
an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information then contained in the
Registration Statement or included or would include an untrue statement of
a
material fact or omitted 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, (i) PE Renaissance or
the Issuer has promptly notified or will promptly notify the Representatives
and
(ii) PE Renaissance or the Issuer has promptly amended or will promptly
amend or supplement such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing two sentences
do not
apply to statements in or omissions from any Issuer Free Writing Prospectus
in
reliance upon and in conformity with written information furnished to the
Issuer
or PE Renaissance by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information set forth on
Schedule
IV
hereto.
(d) PE
Renaissance has been duly formed and is validly existing as a limited liability
company in good standing under the Limited Liability Company Act of the State
of
Delaware, as amended, with full limited liability company power and authority
to
execute, deliver and perform its obligations under this Underwriting Agreement,
the Transfer Agreement, the Sale Agreement, the PER Administration Agreement
and
the other agreements and instruments contemplated by the Pricing Prospectus
(collectively, the “PER
Documents”)
and to
own its properties and conduct its business as described in the Pricing
Prospectus; PE Renaissance has been duly qualified as a foreign limited
liability company for the transaction of business and is in good standing
under
the laws of each other jurisdiction in which it owns or leases properties
or
conducts any business so as to require such qualification, except where failure
to so qualify or to be in good standing would not have a material adverse
effect
on the business, properties or financial condition of the PE Renaissance;
PE
Renaissance has conducted and will conduct no business in the future that
would
be inconsistent with the description of the PE Renaissance’s business set forth
in the Pricing Prospectus; PE Renaissance is not a party to or bound by any
agreement or instrument other than the PER Documents and other agreements
or
instruments incidental to its formation; the Issuer has no material liabilities
or obligations other than those arising out of the transactions contemplated
by
the PER Documents and as described in the Pricing Prospectus; PE Renaissance
is
the beneficial owner of all of the limited liability company interests of
the
Issuer and such interests are owned free and clear of all liens,
12
encumbrances,
equities or claims; and based on current law, the Issuer is not classified
as an
association taxable as a corporation for United States federal income tax
purposes.
(e) The
Issuer is the only subsidiary of PE Renaissance.
(f) The
sale
by PE Renaissance of the Transferred Environmental Control Property to the
Issuer and the consummation of the transactions herein contemplated by PE
Renaissance, and the fulfillment of the terms hereof on the part of PE
Renaissance to be fulfilled, will not result in a breach of any of the terms
or
provisions of, or constitute a default under, PE Renaissance’s certificate of
formation or limited liability company agreement (the “PER
Charter Documents”),
or in
a material breach of any of the terms of, or constitute a material default
under, any indenture, mortgage, deed of trust or other agreement or instrument
to which PE Renaissance is now a party.
(g) This
Underwriting Agreement has been duly authorized, executed and delivered by
PE
Renaissance, which has the necessary limited liability company power and
authority to execute, deliver and perform its obligations under this
Underwriting Agreement, and constitutes a valid and binding obligation of
PE
Renaissance, enforceable against PE Renaissance in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other similar laws relating to
or
affecting creditors’ or secured parties’ rights generally and by general
principles of equity (including concepts of materiality, reasonableness,
good
faith and fair dealing), regardless of whether considered in a proceeding
in
equity or at law, and limitations on enforceability of rights to indemnification
or contribution by federal or state securities laws or regulations or by
public
policy.
(h) PE
Renaissance (i) is not in violation of the PER Charter Documents,
(ii) is not in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust or other agreement or instrument to which it is a
party
or by which it is bound or to which any of its properties is subject, except
for
any such defaults that would not, individually or in the aggregate, have
a
material adverse effect on the business, property or financial condition
of PE
Renaissance and its subsidiaries considered as a whole, or (iii) is not in
violation of any law, ordinance, governmental rule, regulation or court decree
to which it or its property may be subject, except for any such violations
that
would not, individually or in the aggregate, have a material adverse effect
on
the business, property or financial condition of PE Renaissance and its
subsidiaries considered as a whole.
(i) Except
as
set forth or contemplated in the Pricing Prospectus, there is no litigation
or
governmental proceeding to which PE Renaissance or any of its subsidiaries
is a
party or to which any property of PE Renaissance or any of its subsidiaries
is
subject or which is pending or, to the knowledge of PE Renaissance, threatened
against PE Renaissance or any of its subsidiaries that would reasonably be
expected to, individually or in the aggregate, result in a material adverse
effect on the Issuer’s business, property, or financial condition or on PE
Renaissance’s ability to perform its obligations under the Transfer Agreement or
the Sale Agreement.
13
(j) Other
than any necessary action of the PSCWV, any filings required under the Statute
or Financing Order or as otherwise set forth or contemplated in the Pricing
Prospectus, no approval, authorization, consent or order of any public board
or
body (except such as have been already obtained and other than in connection
or
in compliance with the provisions of applicable blue-sky laws or securities
laws
of any state, as to which PE Renaissance makes no representations or
warranties), is legally required for the issuance and sale by the Issuer
of the
Bonds.
(k) PE
Renaissance is not, and after giving effect to the sale and issuance of the
Bonds, will not be, an “investment company” within the meaning of the 1940
Act.
(l) Each
of
the Transfer Agreement, the Sale Agreement and the PER Administration Agreement
has been duly and validly authorized by PE Renaissance, and when executed
and
delivered by PE Renaissance and the other parties thereto will constitute
a
valid and legally binding obligation of PE Renaissance, enforceable against
PE
Renaissance in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium or other similar laws relating to or affecting creditors’ or secured
parties’ rights generally and by general principles of equity (including
concepts of materiality, reasonableness, good faith and fair dealing),
regardless of whether considered in a proceeding in equity or at law, and
limitations on enforceability of rights to indemnification by federal or
state
securities laws or regulations or by public policy.
(m) There
are
no West Virginia transfer taxes related to the transfer of the Transferred
Environmental Control Property or the issuance and sale of the Bonds to the
Underwriters pursuant to this Underwriting Agreement required to be paid
at or
prior to the Closing Date by PE Renaissance or the Issuer.
6. Investor
Communications.
(a) The
Issuer, PE Renaissance and Potomac Edison represent and agree that, unless
they
obtain the prior consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior consent of the Issuer, PE
Renaissance and Potomac Edison and the Representatives, it has not made and
will
not make any offer relating to the Bonds that would constitute an Issuer
Free
Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” required to be filed by the Issuer, PE Renaissance or Potomac
Edison, as applicable, with the Commission or retained by the Issuer, PE
Renaissance or Potomac Edison, as applicable, under Rule 433; provided that
the
prior written consent of the parties hereto shall be deemed to have been
given
in respect of the Term Sheets and each other Free Writing Prospectus identified
in Schedule
III
hereto.
(b) Potomac
Edison, PE Renaissance and the Issuer (or the Representatives at the direction
of the Issuer) will prepare a final pricing term sheet relating to the Bonds
(the “Pricing
Term Sheet”),
containing only information that describes the final pricing terms of the
Bonds
and otherwise in a form consented to by the Representatives, and will file
such
final pricing term sheet within the period required by Rule 433(d)(5)(ii)
under
the Securities Act following the date such final terms have been established
for
all classes of the offering of the
14
Bonds.
The Pricing Term Sheet is an Issuer Free Writing Prospectus for purposes
of this
Agreement.
(c) Each
Underwriter may provide to investors one or more of the Free Writing
Prospectuses, including the Term Sheets, subject to the following
conditions:
(i) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Securities Act, an Underwriter shall not convey or deliver any
Written Communication (as defined herein) to any person in connection with
the
initial offering of the Bonds, unless such Written Communication (i) is
made in reliance on Rule 134 under the Securities Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430A, (iii) is an Issuer
Free Writing Prospectus listed on Schedule
III
hereto
or (iv) is an Underwriter Free Writing Prospectus (as defined below).
“Written Communication” has the same meaning as that term is defined in Rule
405. An “Underwriter Free Writing Prospectus” means any free writing prospectus
that contains only preliminary or final terms of the Environmental Control
Bonds
and is not required to be filed by Potomac Edison or the Issuer pursuant
to Rule
433 and that contains information substantially the same as the information
contained in the Pricing Prospectus or Pricing Term Sheet (including, without
limitation, (i) the class, size, rating, price, CUSIPs, coupon, yield, spread,
benchmark, status and/or legal maturity date of the Bonds, the weighted average
life, expected first and final payment dates, trade date, settlement date,
transaction parties, credit enhancement, roadshow details, ERISA eligibility,
legal investment status and payment window of one or more classes of Bonds
and
(ii) a column or other entry showing the status of the subscriptions for
the
Bonds, both for the Bonds as a whole and for each Underwriter’s retention,
and/or expected pricing parameters of the Bonds).
(ii) Each
Underwriter shall comply with all applicable laws and regulations in connection
with the use of Free Writing Prospectuses and Term Sheets, including but
not
limited to Rule 164 and Rule 433.
(iii) All
Free
Writing Prospectuses provided to investors, whether or not filed with the
Commission, shall bear a legend including substantially the following
statement:
THE
ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST,
YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND
THE OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE
SEC
WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY
15
UNDERWRITER
OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE
BASE
PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE 1-8_________ OR EMAILING
_________ AT __________________.
The
Issuer and the Representatives shall have the right to require additional
specific legends or notations to appear on any Free Writing Prospectus, the
right to require changes regarding the use of terminology and the right to
determine the types of information appearing therein with the approval of,
in
the case of the Issuer, Representatives and, in the case of the Representatives,
the Issuer (which in either case shall not be unreasonably
withheld).
(iv) Each
Underwriter covenants with the Issuer, Potomac Edison and PE Renaissance
that
after the Final Prospectus is available such Underwriter shall not distribute
any written information concerning the Bonds to an investor unless such
information is preceded or accompanied by the Final Prospectus or by notice
to
the investor that the Final Prospectus is available for free by visiting
▇▇▇▇▇
on the SEC website at ▇▇▇.▇▇▇.▇▇▇.
(v) Each
Underwriter agrees and covenants that (a) no information that is conveyed
to investors has been or will be inconsistent with the information contained
in
the Registration Statement, the Pricing Prospectus and each Issuer Free Writing
Prospectus, and (b) if an Underwriter shall use an Underwriter Free Writing
Prospectus, the liability arising from its use shall be the sole responsibility
of the Underwriter using such Underwriter Free Writing Prospectus unless
the
Underwriter Free Writing Prospectus was consented to in advance by Potomac
Edison, PE Renaissance and the Issuer; provided, however, that, for the
avoidance of doubt, (i) this clause (v) shall not be interpreted as
tantamount to the indemnification obligations contained in Section 12(b)
hereof
and (ii) no Underwriter shall be responsible for any “issuer information”
as defined in Rule 433(h)(2) under the Securities Act giving rise to such
Underwriter liability provided by the Issuer, PE Renaissance or Potomac Edison
for inclusion in the Registration Statement, the Pricing Prospectus or any
Issuer Free Writing Prospectus or was otherwise previously provided by the
Issuer, PE Renaissance or Potomac Edison to such Underwriter for use in such
Underwriter Free Writing Prospectus.
7. Purchase
and Sale.
On the basis of the representations and warranties herein contained, and
subject
to the terms and conditions herein set forth, the Issuer shall sell to each
of
the Underwriters, and each Underwriter shall purchase from the Issuer, at
the
time and place herein specified, severally and not jointly, at the purchase
price set forth in Schedule
I
hereto,
the principal amount of the Bonds set forth opposite such Underwriter’s name in
Schedule
II
hereto.
The Underwriters agree to make a public offering of the Bonds. The Issuer
shall
pay (in the form of a discount to the principal amount of the offered Bonds)
to
the Underwriters a commission equal to $[ ].
8. Time
and Place of Closing.
Delivery of the Bonds against payment of the aggregate purchase price therefor
by wire transfer in federal funds shall be made at the place, on
16
the
date
and at the time specified in Schedule
I
hereto,
or at such other place, time and date as shall be agreed upon in writing
by the
Issuer and the Representatives. The hour and date of such delivery and payment
are herein called the “Closing
Date.”
The
Bonds shall be delivered to DTC or to [_______________], as custodian for
DTC,
in fully registered global form registered in the name of Cede & Co., for
the respective accounts specified by the Representatives not later than the
close of business on the business day preceding the Closing Date or such
other
time as may be agreed upon by the Representatives. The Issuer agrees to make
the
Bonds available to the Representatives for checking purposes not later than
[ ]
P.M. New York Time on the last business day preceding the Closing Date at
the
place specified for delivery of the Bonds in Schedule
I
hereto,
or at such other place as the Issuer may specify.
If
any
Underwriter shall fail or refuse to purchase and pay for the aggregate principal
amount of Bonds that such Underwriter has agreed to purchase and pay for
hereunder, the Issuer shall immediately give notice to the other Underwriters
of
the default of such Underwriter, and the other Underwriters shall have the
right
within 24 hours after the receipt of such notice to determine to purchase,
or to
procure one or more others, who are members of the National Association of
Securities Dealers, Inc. (“NASD”)
(or,
if not members of the NASD, who are not eligible for membership in the NASD
and
who agree (i) to make no sales within the United States, its territories or
its possessions or to persons who are citizens thereof or residents therein
and
(ii) in making sales to comply with the NASD’s Conduct Rules) and
satisfactory to the Issuer, to purchase, upon the terms herein set forth, the
aggregate principal amount of Bonds that the defaulting Underwriter had agreed
to purchase. If any non-defaulting Underwriter or Underwriters shall determine
to exercise such right, such Underwriter or Underwriters shall give written
notice to the Issuer of the determination in that regard within 24 hours
after
receipt of notice of any such default, and thereupon the Closing Date shall
be
postponed for such period, not exceeding three business days, as the Issuer
shall determine. If in the event of such a default no non-defaulting Underwriter
shall give such notice, then this Underwriting Agreement may be terminated
by
the Issuer, upon like notice given to the non-defaulting Underwriters, within
a
further period of 24 hours. If in such case the Issuer shall not elect to
terminate this Underwriting Agreement it shall have the right, irrespective
of
such default:
(a) to
require each non-defaulting Underwriter to purchase and pay for the respective
aggregate principal amount of Bonds that it had agreed to purchase hereunder
as
hereinabove provided and, in addition, the aggregate principal amount of
Bonds
that the defaulting Underwriter shall have so failed to purchase up to aggregate
principal amount of Bonds equal to one tenth (1/10) of the aggregate principal
amount of Bonds that such non-defaulting Underwriter has otherwise agreed
to
purchase hereunder, and/or
(b) to
procure one or more persons, reasonably acceptable to the Representatives,
who
are members of the NASD (or, if not members of the NASD, who are not eligible
for membership in the NASD and who agree (i) to make no sales within the
United States, its territories or its possessions or to persons who are citizens
thereof or residents therein and (ii) in making sales to comply with the
NASD’s Conduct Rules), to purchase, upon the terms herein set forth, either all
or a part of the aggregate principal amount of Bonds that such defaulting
Underwriter had agreed to purchase or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the foregoing
clause
(a).
17
In
the
event the Issuer shall exercise its rights under (a) and/or (b) above, the
Issuer shall give written notice thereof to the non-defaulting Underwriters
within such further period of 24 hours, and thereupon the Closing Date shall
be
postponed for such period, not exceeding three business days, as the Issuer
shall determine.
In
the
computation of any period of 24 hours referred to in this Section 8, there
shall
be excluded a period of 24 hours in respect of each Saturday, Sunday or legal
holiday that would otherwise be included in such period of time.
Any
action taken by the Issuer under this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter
under
this Underwriting Agreement. Termination by the Issuer under this Section
8
shall be without any liability on the part of the Issuer, Potomac Edison,
PE
Renaissance or any non-defaulting Underwriter, except as otherwise provided
in
Sections 9(a)(viii) and 12 hereof.
9. Covenants.
(a) Covenants
of the Issuer.
The Issuer covenants and agrees with the several Underwriters that:
(i) The
Issuer will upon request promptly deliver to the Representatives and Counsel
to
the Underwriters a signed copy of the Registration Statement as originally
filed
or, to the extent a signed copy is not available, a conformed copy, certified
by
an officer of the Issuer to be in the form as originally filed, including
all
amendments thereto.
(ii) The
Issuer will deliver to the Underwriters, as soon as practicable after the
date
hereof, as many copies of the Pricing Prospectus and the Final Prospectus
as
they may reasonably request.
(iii) The
Issuer will cause the Pricing Prospectus and the Final Prospectus to be filed
with the Commission pursuant to Rule 424 under the Securities Act (“Rule
424”)
as
soon as practicable and advise the Underwriters of any stop order suspending
the
effectiveness of the Registration Statement or the institution of any proceeding
therefor of which Issuer shall have received notice. The Issuer will use
its
reasonable best efforts to prevent the issuance of any such stop order and,
if
issued, to obtain as soon as possible the withdrawal thereof. The Issuer
has
complied and will comply with Rule 433 in connection with the offering of
the
Bonds.
(iv) As
soon
as practicable, but not later than 12 months after the date hereof, the Issuer
will make generally available to its security holders, an earnings statement
(which need not be audited) that will satisfy the provisions of Section 11(a)
of
the Securities Act with respect to the Bonds.
(v) The
Issuer will furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the Bonds for offer and sale under the
blue-sky laws of such jurisdictions as the Representatives may designate;
provided that neither the Issuer, Potomac Edison nor PE Renaissance shall
be
required to qualify as a
18
foreign
limited liability company or dealer in securities, to file any consents to
service of process under the laws of any jurisdiction, or meet any other
requirements deemed by the Issuer, Potomac Edison or PE Renaissance, as
applicable, to be unduly burdensome.
(vi) The
Issuer will not file any amendment to the Registration Statement or amendment
or
supplement to the Final Prospectus during the period when a prospectus relating
to the Bonds is required to be delivered under the Securities Act, without
prior
notice to the Underwriters, or to which ▇▇▇ ▇▇▇▇▇▇ LLP, who are acting as
counsel for the Underwriters (“Counsel
for the Underwriters”),
shall
reasonably object by written notice to Potomac Edison and the
Issuer.
(vii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in
the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Securities Act (“Rule
172”)),
any
event relating to or affecting the Issuer, the Bonds or the Transferred
Environmental Control Property or of which the Issuer shall be advised in
writing by the Representatives shall occur that in the Issuer’s reasonable
judgment after consultation with Counsel for the Underwriters should be set
forth in a supplement to, or an amendment of, the Final Prospectus in order
to
make the Final Prospectus not misleading in the light of the circumstances
when
it is delivered to a purchaser (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), the Issuer will, at its
expense, amend or supplement the Final Prospectus by either (A) preparing
and furnishing to the Underwriters at the Issuer’s expense a reasonable number
of copies of a supplement or supplements or an amendment or amendments to
the
Final Prospectus or (B) making an appropriate filing pursuant to Section 13
or Section 15 of the Exchange Act, which will supplement or amend the Final
Prospectus so that, as supplemented or amended, it will not contain 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 when
the
Final Prospectus is delivered to a purchaser (including in circumstances
where
such requirement may be satisfied pursuant to Rule 172), not misleading;
provided that should such event relate solely to the activities of any of
the
Underwriters, then such Underwriters shall assume the expense of preparing
and
furnishing any such amendment or supplement.
(viii) The
Issuer will, except as herein provided, pay or cause to be paid all expenses
and
taxes (except transfer taxes) in connection with (i) the preparation and
filing by it of the Registration Statement, Pricing Prospectus and Final
Prospectus, (ii) the issuance and delivery of the Bonds as provided in Section
8
hereof (including, without limitation, reasonable fees and disbursements
of
Counsel for the Underwriters and all trustee, rating agency and PSCWV financial
advisor fees), (iii) the qualification of the Bonds under blue-sky laws,
(iv) the printing and delivery to the Underwriters of reasonable quantities
of the Registration Statement, the Pricing Prospectus and Final Prospectus
and
(v) any amendment or supplement to the Registration Statement, Pricing
Prospectus, or Issuer Free Writing Prospectus required to be filed with the
Commission to correct any untrue statement of a material fact or omission
of any
statement necessary to
19
make
the
statements therein, in the light of the circumstances in which they were
made,
not misleading, the result of which requires the reforming of any contracts
of
sale of the Bonds made by the Underwriters (including any damages or other
amounts payable in connection with legal and contractual liability). If this
Underwriting Agreement shall be terminated in accordance with the provisions
of
Section 11 or 13 hereof, the Issuer shall not be required to pay any amount
for
any expenses of the Underwriters or for any fees and expenses of counsel
for the
PSCWV financial advisor, except that the Issuer will reimburse the Underwriters
for their reasonable out-of-pocket expenses, in an aggregate amount not
exceeding $[__________], incurred in contemplation of the performance of
this
Underwriting Agreement and will reimburse the Underwriters for the reasonable
fees and disbursements of Counsel for the Underwriters. The Issuer shall
not in
any event be liable to any of the several Underwriters for damages on account
of
loss of anticipated profits.
(ix) During
the period from the date of this Underwriting Agreement to the date that
is five
days after the Closing Date, the Issuer will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(x) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting Agreement is conditioned upon the furnishing
of documents or the taking of other actions by the Issuer on or after the
Closing Date, the Issuer shall furnish such documents and take such other
actions.
(xi) For
a
period from the date of this Underwriting Agreement until the retirement
of the
Bonds or until such time as the Underwriters shall cease to maintain a secondary
market in the Bonds, whichever occurs first, the Issuer shall file with the
Commission, and to the extent permitted by and consistent with the Issuer’s
obligations under applicable law, make available on the website associated
with
the Issuer’s parent, such periodic reports, if any, as are required (without
regard to the number of holders of Bonds to the extent permitted by and
consistent with the Issuer’s obligations under applicable law) from time to time
under Section 13 or Section 15(d) of the Exchange Act, and the Issuer shall
not
voluntarily suspend or terminate its filing obligations with the Commission.
The
Issuer shall also, to the extent permitted by and consistent with the Issuer’s
obligations under applicable law, include in the periodic and other reports
to
be filed with the Commission as provided above, such information as required
by
Section 3.07(e) of the Indenture with respect to the Bonds. To the extent
that
the Issuer’s obligations are terminated or limited by an amendment to Section
3.07(e) of the Indenture, or otherwise, such obligations shall be
correspondingly terminated or limited hereunder.
(xii) During
a
period of one year from the effective date of the Registration Statement,
to
furnish to the Representatives (A) as soon as they are available, copies
of any
reports and financial statements of the Issuer furnished to or filed with
the
Commission, other than such reports and financial statements that are publicly
available on the Commission’s ▇▇▇▇▇ system; and (B) such additional
information
20
concerning
the business and financial condition of the Issuer as the Representatives
may
from time to time reasonably request (such financial statements to be on
a
consolidated basis to the extent the accounts of the Issuer are consolidated
in
reports furnished to its shareholders generally or to the
Commission).
(xiii) The
Issuer will file with the Commission such information on Form 10-D or Form
10-K
as may be required by Rule 463 under the Securities Act.
(xiv) If
the
Issuer elects to rely upon Rule 462(b) under the Securities Act (“Rule
462(b)”),
the
Issuer shall file a Rule 462(b) Registration Statement with the Commission
in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the
date of
this Agreement, and the Issuer shall at the time of filing either pay to
the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Securities Act.
(b) Covenants
of Potomac Edison.
Potomac Edison covenants and agrees with the several Underwriters that, to
the
extent that the Issuer has not already performed such act pursuant to Section
9(a):
(i) To
the
extent permitted by applicable law and the agreements and instruments that
bind
Potomac Edison, Potomac Edison will use its reasonable best efforts to cause
the
Issuer to comply with the covenants set forth in Section 9(a)
hereof.
(ii) Potomac
Edison will use its reasonable best efforts to prevent the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the withdrawal
thereof.
(iii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in
the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event relating to or affecting Potomac Edison, the Bonds or the
Transferred Environmental Control Property or of which Potomac Edison shall
be
advised in writing by the Representatives shall occur that in Potomac Edison’s
reasonable judgment after consultation with Counsel for the Underwriters
should
be set forth in a supplement to, or an amendment of, the Final Prospectus
in
order to make the Final Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser, Potomac Edison will cause
the
Issuer, at Potomac Edison’s or the Issuer’s expense, to amend or supplement the
Final Prospectus by either (A) preparing and furnishing to the Underwriters
at
Potomac Edison’s or the Issuer’s expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final Prospectus
or (B) causing the Issuer to make an appropriate filing pursuant to Section
13
or Section 15 of the Exchange Act, which will supplement or amend the Final
Prospectus so that, as supplemented or amended, it will not contain 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 when
the
Final Prospectus is delivered to a purchaser, not
21
misleading;
provided that should such event relate solely to the activities of any of
the
Underwriters, then such Underwriters shall assume the expense of preparing
and
furnishing any such amendment or supplement.
(iv) During
the period from the date of this Underwriting Agreement to the date that
is five
days after the Closing Date, Potomac Edison will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(v) Potomac
Edison will cause the proceeds for the issuance and sale of the Bonds to
be
applied for the purposes described in the Pricing Prospectus.
(vi) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting Agreement is conditioned upon the furnishing
of documents or the taking of other actions by Potomac Edison on or after
the
Closing Date, Potomac Edison shall furnish such documents and take such other
actions.
(c) Covenants
of PE Renaissance.
PE Renaissance covenants and agrees with the several Underwriters that, to
the
extent that the Issuer has not already performed such act pursuant to Section
9(a):
(i) To
the
extent permitted by applicable law and the agreements and instruments that
bind
PE Renaissance, PE Renaissance will use its reasonable best efforts to cause
the
Issuer to comply with the covenants set forth in Section 9(a)
hereof.
(ii) PE
Renaissance will use its reasonable best efforts to prevent the issuance
by the
Commission of any stop order suspending the effectiveness of the Registration
Statement and, if issued, to obtain as soon as possible the withdrawal
thereof.
(iii) If,
during such period of time (not exceeding nine months) after the Final
Prospectus has been filed with the Commission pursuant to Rule 424 as in
the
opinion of Counsel for the Underwriters a prospectus covering the Bonds is
required by law to be delivered in connection with sales by an Underwriter
or
dealer, any event relating to or affecting PE Renaissance, the Bonds or the
Transferred Environmental Control Property or of which PE Renaissance shall
be
advised in writing by the Representatives shall occur that in PE Renaissance’s
reasonable judgment after consultation with Counsel for the Underwriters
should
be set forth in a supplement to, or an amendment of, the Final Prospectus
in
order to make the Final Prospectus not misleading in the light of the
circumstances when it is delivered to a purchaser, PE Renaissance will cause
the
Issuer, at PE Renaissance’s or the Issuer’s expense, to amend or supplement the
Final Prospectus by either (A) preparing and furnishing to the Underwriters
at
PE Renaissance’s or the Issuer’s expense a reasonable number of copies of a
supplement or supplements or an amendment or amendments to the Final Prospectus
or (B) causing the Issuer to make an appropriate filing pursuant to Section
13
or Section
22
15
of the
Exchange Act, which will supplement or amend the Final Prospectus so that,
as
supplemented or amended, it will not contain 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 when the Final Prospectus
is delivered to a purchaser, not misleading; provided that should such event
relate solely to the activities of any of the Underwriters, then such
Underwriters shall assume the expense of preparing and furnishing any such
amendment or supplement.
(iv) During
the period from the date of this Underwriting Agreement to the date that
is five
days after the Closing Date, PE Renaissance will not, without the prior written
consent of the Representatives, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any
asset-backed securities (other than the Bonds).
(v) PE
Renaissance will cause the proceeds for the issuance and sale of the Bonds
to be
applied for the purposes described in the Pricing Prospectus.
(vi) To
the
extent, if any, that any rating necessary to satisfy the condition set forth
in
Section 10(z) of this Underwriting Agreement is conditioned upon the furnishing
of documents or the taking of other actions by PE Renaissance on or after
the
Closing Date, PE Renaissance shall furnish such documents and take such other
actions.
10. Conditions
to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Bonds shall be subject
to
the accuracy of the representations and warranties on the part of the Issuer,
PE
Renaissance and Potomac Edison contained in this Underwriting Agreement,
on the
part of Potomac Edison contained in Article III of the Transfer Agreement,
on
the part of PE Renaissance contained in Article III of the Sale Agreement,
and
on the part of Potomac Edison contained in Section 5.01 of the Servicing
Agreement as of the Closing Date, to the accuracy of the statements of the
Issuer, PE Renaissance and Potomac Edison made in any certificates pursuant
to
the provisions hereof, to the performance by the Issuer, PE Renaissance and
Potomac Edison of their obligations hereunder, and to the following additional
conditions:
(a) The
Final
Prospectus shall have been filed with the Commission pursuant to Rule 424
prior
to 5:30 P.M., New York time, on the second business day after the date of
this
Underwriting Agreement. In addition, all material required to be filed by
the
Issuer or Potomac Edison pursuant to Rule 433(d) under the Securities Act
that
was prepared by either of them or that was prepared by any Underwriter and
timely provided to the Issuer or Potomac Edison shall have been filed with
the
Commission within the applicable time period prescribed for such filing by
such
Rule 433(d).
(b) No
stop
order suspending the effectiveness of the Registration Statement shall be
in
effect, and no proceedings for that purpose shall be pending before, or
threatened by, the Commission on the Closing Date; and the Underwriters shall
have received one or more certificates, dated the Closing Date and signed
by an
officer of Potomac Edison and the Issuer, as appropriate, to the effect that
no
such stop order is in effect and that no proceedings for such
23
purpose
are pending before, or to the knowledge of Potomac Edison or the Issuer,
as the
case may be, threatened by, the Commission.
(c) The
Issuer shall have complied with the provisions of Section 9(a)(ii) hereof
with
respect to the furnishing of prospectuses.
(d) ▇▇▇
▇▇▇▇▇▇ LLP, Counsel for the Underwriters, shall have furnished to the
Representatives their written opinion or opinions, dated the Closing Date,
in a
form or forms acceptable to the Representatives, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to render such opinion or opinions.
(e) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Potomac Edison and the
Issuer, shall have furnished to the Representatives their written opinion,
dated
the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(e)
and such
other matters as the Representatives may reasonably request.
(f) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Potomac Edison and the
Issuer, shall have furnished to the Representatives their written opinion,
dated
the Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(f)
and such
other matters as the Representatives may reasonably request.
(g) [ ],
counsel for the
Issuer, PE Renaissance and Potomac Edison, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(g)
and such
other matters as the Representatives may reasonably request.
(h) [ ],
counsel for the
Issuer, PE Renaissance and Potomac Edison, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(h)
and such
other matters as the Representatives may reasonably request.
(i) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated
the
Closing Date and in form and substance reasonably acceptable to the
Representatives, addressing the matters set forth in Exhibit
10(i)
and such
other matters as the Representatives may reasonably request.
(j) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(j)
and such
other matters as the Representatives may reasonably request.
(k) ▇▇▇▇▇▇▇
▇▇▇▇▇ PLLC, counsel for the Issuer, PE Renaissance and Potomac Edison, shall
have furnished to the Representatives their written opinion, dated the Closing
Date
24
and
in
form and substance reasonably acceptable to the Representatives, addressing
the
matters set forth in Exhibit
10(k)
and such
other matters as the Representatives may reasonably request.
(l) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(l)
and such
other matters as the Representatives may reasonably request.
(m) [ ],
[in-house counsel]
for Potomac Edison, PE Renaissance and the Issuer shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(m)
and such
other matters as the Representatives may reasonably request.
(n) [ ],
counsel
for the Issuer, PE Renaissance and Potomac Edison, shall have furnished to
the
Representatives their written opinion, dated the Closing Date and in form
and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(n)
and such
other matters as the Representatives may reasonably request.
(o) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(o)
and such
other matters as the Representatives may reasonably request.
(p) [ ],
counsel for the
Indenture Trustee, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(p)
and such
other matters as the Representatives may reasonably request.
(q) [ ],
counsel for
the
Issuer, PE Renaissance and Potomac Edison, shall have furnished to the
Representatives their written opinion, dated the Closing Date and in form
and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(q)
and such
other matters as the Representatives may reasonably request.
(r) [ ],
counsel for
the
Issuer, PE Renaissance and Potomac Edison, shall have furnished to the
Representatives their written opinion, dated the Closing Date and in form
and
substance reasonably acceptable to the Representatives, addressing the matters
set forth in Exhibit
10(r)
and such
other matters as the Representatives may reasonably request.
(s) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(s)
and such
other matters as the Representatives may reasonably request.
25
(t) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Issuer, PE
Renaissance and Potomac Edison, shall have furnished to the Representatives
their written opinion, dated the Closing Date and in form and substance
reasonably acceptable to the Representatives, addressing the matters set
forth
in Exhibit
10(t)
and such
other matters as the Representatives may reasonably request.
(u) ▇▇▇▇▇▇▇
▇▇▇▇▇ PLLC, counsel for the Issuer, PE Renaissance and Potomac Edison, shall
have furnished to the Representatives their written opinion, dated the Closing
Date and in form and substance reasonably acceptable to the Representatives,
addressing the matters set forth in Exhibit
10(u)
and such
other matters as the Representatives may reasonably request.
(v) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(v)
and such
other matters as the Representatives may reasonably request.
(w) ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Raysman & ▇▇▇▇▇▇▇ LLP, counsel for the Issuer, PE Renaissance and
Potomac Edison, shall have furnished to the Representatives their written
opinion, dated the Closing Date and in form and substance reasonably acceptable
to the Representatives, addressing the matters set forth in Exhibit
10(w)
and such
other matters as the Representatives may reasonably request.
(x) Pricewaterhouse
Coopers LLP shall have furnished to the Representatives on the date hereof
and
on the Closing Date, letters, the first dated the date hereof and the second
dated the Closing Date, each in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to
certain financial, accounting, and statistical information contained in the
Pricing Prospectus and the Final Prospectus.
(y) Subsequent
to the respective dates as of which information is given in each of the
Registration Statement, the Pricing Prospectus and the Final Prospectus,
there
shall not have been any change specified in the certificates required by
subsection (cc)
of this
Section 10
which
is, in the judgment of the Representatives, so material and adverse as to
make
it impracticable or inadvisable to proceed with the offering or the delivery
of
the Bonds as contemplated by the Registration Statement and the Final
Prospectus.
(z) The
Issuer LLC Agreement, the PER LLC Agreement, the Issuer Administrative
Agreement, the PER Administration Agreement, the Transfer Agreement, the
Sale
Agreement, the Servicing Agreement and the Indenture and any amendment or
supplement to any of the foregoing shall have been executed and
delivered.
(aa) Since
the
respective dates as of which information is given in each of the Registration
Statement and in the Pricing Prospectus and as of the Closing Date there
shall
have been no (i) material adverse change in the business, property or
financial condition of Potomac Edison and its subsidiaries, taken as a whole,
or
the Issuer or (ii) adverse development concerning the business or assets of
Potomac Edison and its subsidiaries, taken as a whole, or the
26
Issuer
which would be reasonably likely to result in a material adverse change in
the
prospective business, property or financial condition of Potomac Edison and
its
subsidiaries, taken as a whole, whether or not in the ordinary course of
business, or the Issuer or (iii) development which would be reasonably
likely to result in a material adverse change in the Transferred Environmental
Control Property, the Bonds or the Financing Order.
(bb) At
the
Closing Date, (i) the Bonds shall be rated at least “Aaa”, “AAA”, and “AAA”
by ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”),
Standard & Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(“S&P”)
and
Fitch, Inc. (“Fitch”),
respectively, and the Issuer shall have delivered to the Underwriters a letter
from each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Bonds have such ratings, and (ii) neither
Moody’s, S&P nor Fitch shall have, since the date of this Underwriting
Agreement, downgraded or publicly announced that it has under surveillance
or
review, with possible negative implications, its ratings of the
Bonds.
(cc) The
Issuer, PE Renaissance and Potomac Edison shall have furnished or caused
to be
furnished to the Representatives at the Closing Date certificates of officers
of
Potomac Edison, PE Renaissance and the Issuer, as the case may be, reasonably
satisfactory to the Representatives, as to the accuracy of the representations
and warranties of Potomac Edison, PE Renaissance and the Issuer, in the Transfer
Agreement, the Sale Agreement, Servicing Agreement and the Indenture at and
as
of the Closing Date, as to the performance by the Issuer, PE Renaissance
and
Potomac Edison of all of their obligations hereunder to be performed at or
prior
to such Closing Date, as to the matters set forth in subsections (b)
and
(aa)
of this
Section 10
and as
to such other matters as the Representatives may reasonably
request.
(dd) An
issuance advice letter, in a form consistent with the provisions of the
Financing Order, shall have been filed with the PSCWV and shall have become
effective.
(ee) On
or
prior to the Closing Date, the Issuer shall have delivered to the
Representatives evidence, in form and substance reasonably satisfactory to
the
Representatives, that appropriate filings have been or are being made in
accordance with the Statute, the Financing Order and other applicable law
reflecting the grant of a security interest by the Issuer in the collateral
relating to the Bonds to the Indenture Trustee, including the filing of the
requisite notices in the office of the West Virginia State Department of
Assessments and Taxation.
(ff) On
or
prior to the Closing Date, PE Renaissance shall have funded the capital
subaccount of the Issuer with cash in an amount equal to $[ ].
(gg) The
Issuer, PE Renaissance and Potomac Edison shall have furnished or caused
to be
furnished or agree to furnish to the Rating Agencies at the Closing Date
such
opinions and certificates as the Rating Agencies shall have reasonably requested
prior to such Closing Date.
11. Conditions
of Issuer’s Obligations.
The obligation of the Issuer to deliver the Bonds shall be subject to the
conditions that no stop order suspending the effectiveness of the Registration
Statement shall be in effect at the Closing Date and no proceeding for that
purpose
27
shall
be
pending before, or threatened by, the Commission at the Closing Date and
the
issuance advice letter described in Section 10(dd)
shall
have become effective. In case these conditions shall not have been fulfilled,
this Underwriting Agreement may be terminated by the Issuer upon notice thereof
to the Underwriters. Any such termination shall be without liability of any
party to any other party except as otherwise provided in Sections 9(a)(viii)
and
12 hereof.
12. Indemnification
and Contribution.
(a) Potomac
Edison, PE Renaissance and the Issuer, jointly and severally, shall indemnify,
defend and hold harmless each Underwriter, each Underwriter’s members, managers,
employees, agents, officers and directors and each person who controls any
Underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the Securities Act or
any
other statute or common law and shall reimburse each such Underwriter and
person
for any reasonable legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) as and when incurred by them in connection
with investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in the
Registration Statement or any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Prospectus, the Final
Prospectus and, together with the Pricing Prospectus, the Issuer Free Writing
Prospectuses, or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, collectively, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances in which they were
made,
not misleading or (iii) any information prepared by or on behalf of Potomac
Edison, PE Renaissance or the Issuer and provided to the Underwriters; provided,
however, that the indemnity agreement contained in this Section 12 shall
not
apply to any such losses, claims, damages, liabilities, expenses or actions
arising out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, in each case if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Issuer, PE Renaissance or Potomac
Edison
by any Underwriter, by or through the Representatives, expressly for use
in
connection with the preparation of the Registration Statement, the Pricing
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus or
any
amendment or supplement to either thereof, or arising out of, or based upon,
statements in or omissions from that part of the Registration Statement that
shall constitute the Statement of Eligibility under the Trust Indenture Act
of
the Indenture Trustee with respect to any indenture qualified pursuant to
the
Registration Statement; and provided further, that the indemnity agreement
contained in this Section 12 shall not inure to the benefit of any Underwriter
(or of any member, manager, employee, agent, officer or director of such
Underwriter or of any person controlling such Underwriter within the meaning
of
Section 15 of the Securities Act) on account of any such losses, claims,
damages, liabilities, expenses or actions, joint or several, arising from
the
sale of the Bonds to any person if a copy of the Pricing Prospectus (including
any amendment or supplement thereto if any amendments or supplements thereto
shall have been furnished to the Underwriters at or prior to the time of
the
sale involved) shall not have been given or sent to such person by or on
behalf
of such Underwriter with or
28
prior
to
the sale of the Bonds to such person unless the alleged omission or alleged
untrue statement was not corrected in the Pricing Prospectus (including any
amendment or supplement thereto if any amendments or supplements thereto
shall
have been furnished to the Underwriters at or prior to the time of the sale
involved) at the time of such sale. The indemnity agreement of Potomac Edison,
PE Renaissance and the Issuer contained in this Section 12 and the
representations and warranties of the Issuer, Potomac Edison and PE Renaissance
contained in Sections 3, 4 and 5 hereof shall remain operative and in full
force
and effect regardless of any termination of this Underwriting Agreement or
of
any investigation made by or on behalf of any Underwriter, its officers or
its
directors or any such controlling person, and shall survive the delivery
of the
Bonds.
(b) Each
Underwriter shall severally indemnify, defend and hold harmless Potomac Edison,
PE Renaissance and the Issuer, each of Potomac Edison’s, PE Renaissance’s and
Issuer’s officers, directors, and managers, and each person who controls the
Issuer or Potomac Edison within the meaning of Section 15 of the Securities
Act,
from and against any and all losses, claims, damages or liabilities, joint
or
several, to which they or any of them may become subject under the Securities
Act or any other statute or common law and shall reimburse each of them for
any
reasonable legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) as and when incurred by them in connection
with investigating any such losses, claims, damages or liabilities or in
connection with defending any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in the
Registration Statement or any omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Pricing Prospectus, the Final
Prospectus and, together with the Pricing Prospectus, the Issuer Free Writing
Prospectuses, collectively, or any omission or alleged omission to state
therein
a material fact necessary to make the statements therein, in the light of
the
circumstances in which they were made, not misleading; if such statement
or
omission was made in reliance upon and in conformity with information furnished
in writing to Potomac Edison, PE Renaissance or Issuer by such Underwriter,
through the Representatives, expressly for use in connection with the
preparation of the Registration Statement, the Pricing Prospectus, the Final
Prospectus or any Issuer Free Writing Prospectus or any amendment or supplement
to any of them. The only information furnished to Potomac Edison, PE Renaissance
and the Issuer by the Underwriters in writing expressly for use in such
foregoing documents is set forth in Schedule
IV
hereto.
The indemnity agreement of the respective Underwriters contained in this
Section
12 shall remain operative and in full force and effect regardless of any
termination of this Underwriting Agreement or of any investigation made by
or on
behalf of Potomac Edison, PE Renaissance or the Issuer, their directors,
managers or officers, any such Underwriter, or any such controlling person,
and
shall survive the delivery of the Bonds.
(c) Potomac
Edison, PE Renaissance, the Issuer and the several Underwriters each shall,
upon
the receipt of notice of the commencement of any action against it or any
person
controlling it as aforesaid, in respect of which indemnity may be sought
on
account of any indemnity agreement contained herein, promptly give written
notice of the commencement thereof to the party or parties against whom
indemnity shall be sought under (a) or (b) above, but the failure to notify
such
indemnifying party or parties of any such action shall not relieve
such
29
indemnifying
party or parties from any liability hereunder to the extent such indemnifying
party or parties is/are not materially prejudiced as a result of such failure
to
notify and in any event shall not relieve such indemnifying party or parties
from any liability which it or they may have to the indemnified party otherwise
than on account of such indemnity agreement. In case such notice of any such
action shall be so given, such indemnifying party shall be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense of such
action,
in which event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and reasonably satisfactory to the indemnified
party or parties who shall be defendant or defendants in such action, and
such
defendant or defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall elect not to
assume the defense of such action, such indemnifying party will reimburse
such
indemnified party or parties for the reasonable fees and expenses of any
counsel
retained by them; provided, however, if the defendants in any such action
(including impleaded parties) include both the indemnified party and the
indemnifying party and counsel for the indemnifying party shall have reasonably
concluded that there may be a conflict of interest involved in the
representation by a single counsel of both the indemnifying party and the
indemnified party, the indemnified party or parties shall have the right
to
select separate counsel, satisfactory to the indemnifying party, whose
reasonable fees and expenses shall be paid by such indemnifying party, to
participate in the defense of such action on behalf of such indemnified party
or
parties (it being understood, however, that the indemnifying party shall
not be
liable for the fees and expenses of more than one separate counsel (in addition
to local counsel) representing the indemnified parties who are parties to
such
action). Each of Potomac Edison, PE Renaissance, Issuer and the several
Underwriters agrees that without the other party’s prior written consent, which
consent shall not be unreasonably withheld, it will not settle, compromise
or
consent to the entry of any judgment in any claim in respect of which
indemnification may be sought under the indemnification provisions of this
Underwriting Agreement, unless such settlement, compromise or consent
(i) includes an unconditional release of such other party from all
liability arising out of such claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on
behalf
of such other party.
(d) If
the
indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable under applicable law by an indemnified party, each indemnifying
party agrees to contribute to such indemnified party with respect to any
and all
losses, claims, damages, liabilities and expenses for which each such
indemnification provided for in subparagraph (a) or (b) above shall be
unenforceable, in such proportion as shall be appropriate to reflect
(i) the relative benefits received by Potomac Edison, PE Renaissance and
the Issuer on the one hand and the Underwriters on the other hand from the
offering of the Bonds pursuant to this Underwriting Agreement or (ii) if an
allocation solely on the basis provided by clause (i) is not permitted by
applicable law or is inequitable or against public policy, in such proportion
as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each indemnifying party on the one
hand
and the indemnified party on the other in connection with the statements
or
omissions which have resulted in such losses, claims, damages, liabilities
and
expenses and (iii) any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution from any indemnifying party not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by reference
30
to,
among
other things, whether the untrue or alleged untrue statement of a material
fact
or the omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the indemnified party
and
each such party’s relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. Potomac
Edison, PE Renaissance, the Issuer and each of the Underwriters agree that
it
would not be just and equitable if contributions pursuant to this subparagraph
(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this Section 12, no Underwriter
shall be required to contribute in excess of the amount equal to the excess
of
(i) the total underwriting fees, discounts and commissions received by it,
over (ii) the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement
or
omission or alleged omission. The obligations of each Underwriter to contribute
pursuant to this Section 12 are several and not joint and shall be in the
same
proportion as such Underwriter’s obligation to underwrite Bonds is to the total
number of Bonds set forth in Schedule
II
hereto.
13. Termination.
This Underwriting Agreement may be terminated, at any time prior to the Closing
Date with respect to the Bonds by the Representatives by written notice to
the
Issuer if after the date hereof and at or prior to the Closing Date
(a) there shall have occurred any general suspension of trading in
securities on the New York Stock Exchange (“NYSE”)
or
there shall have been established by the NYSE, or the over-the-counter market,
or by the Commission any general limitation on prices for such trading or
any
general restrictions on the distribution of securities, or a general banking
moratorium declared by New York or federal authorities or (b) there shall
have occurred any (i) material outbreak of hostilities (including, without
limitation, an act of terrorism) or (ii) declaration by the United States
of war or national or international calamity or crisis, including, but not
limited to, a material escalation of hostilities that existed prior to the
date
of this Underwriting Agreement or (iii) material adverse change in the
financial markets in the United States, and the effect of any such event
specified in clause (a) or (b) above on the financial markets of the United
States shall be such as to materially and adversely affect, in the reasonable
judgment of the Representatives, their ability to proceed with the public
offering or the delivery of the Bonds on the terms and in the manner
contemplated by the Final Prospectus. Any termination hereof pursuant to
this
Section 13 shall be without liability of any party to any other party except
as
otherwise provided in Sections 9(a)(viii) and 12 hereof.
14. Absence
of Fiduciary Relationship.
The Issuer, PE Renaissance and Potomac Edison each acknowledge and agree
that
the Underwriters are acting solely in the capacity of an arm’s length
contractual counterparty to the Issuer, PE Renaissance and Potomac Edison
with
respect to the offering of the Bonds contemplated hereby (including in
connection with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Issuer, PE Renaissance or
Potomac
Edison. Additionally, none of the Underwriters is advising the Issuer, PE
Renaissance or Potomac Edison as to any legal, tax, investment, accounting
or
regulatory matters in any jurisdiction. The Issuer, PE Renaissance and Potomac
Edison shall consult with their own advisors concerning such matters and
shall
be responsible for making their own independent investigation and appraisal
of
the transactions contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Issuer, PE Renaissance or Potomac Edison
with
respect thereto. Any review by the Underwriters of the
31
Issuer,
PE Renaissance or Potomac Edison, the transactions contemplated hereby or
other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Issuer, PE Renaissance
or
Potomac Edison.
15. Venue.
Each of the parties hereto irrevocably (i) agrees that any legal suit, action
or
proceeding against Potomac Edison, PE Renaissance or the Issuer brought by
any
Underwriter or by any person who controls any Underwriter within the meaning
of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any federal or state court located in the State
of
New York (each, a “New
York Court”),
(ii)
waives, to the fullest extent it may effectively do so, any objection which
it
may now or hereafter have to the laying of venue of any such proceeding,
(iii)
waives, to the fullest extent it may effectively do so, any objection based
on
the absence of a necessary or indispensable party in any such proceeding,
and
(iv) submits to the non-exclusive jurisdiction of such courts in any such
suit,
action or proceeding. Potomac Edison, PE Renaissance and the Issuer each
irrevocably waives any immunity to jurisdiction to which they may otherwise
be
entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against them arising out of or based on this
Agreement or the transactions contemplated hereby which is instituted in
any New
York Court or in any foreign court. To the fullest extent permitted by law,
the
Issuer hereby waives any objection to the enforcement by any competent foreign
court of any judgment validly obtained in any such proceeding. The provisions
of
this Section 15 shall survive any termination of this Agreement, in whole
or in
part.
16. Notices.
All communications hereunder will be in writing and may be given by United
States mail, courier service, telecopy, telefax or facsimile (confirmed by
telephone or in writing in the case of notice by telecopy, telefax or facsimile)
or any other customary means of communication, and any such communication
shall
be effective when delivered, or if mailed, three days after deposit in the
United States mail with proper postage for ordinary mail prepaid, and if
sent to
the Representatives, to it at the address specified in Schedule I
hereto;
and if sent to Potomac Edison, to it at [ ]; and if sent to PE Renaissance,
to
it at [ ] and if sent to the Issuer, to it at [ ]. The parties hereto, by
notice
to the others, may designate additional or different addresses for subsequent
communications.
17. Successors.
This Underwriting Agreement will inure to the benefit of and be binding upon
the
parties hereto and their respective successors and the members, managers,
employees, agents, officers and directors and controlling persons referred
to in
Section 12 hereof, and no other person will have any right or obligation
hereunder.
18. Applicable
Law.
This Underwriting Agreement will be governed by and construed in accordance
with
the laws of the State of New York.
19. Counterparts.
This Underwriting Agreement may be signed in any number of counterparts,
each of
which shall be deemed an original, which taken together shall constitute
one and
the same instrument.
32
20. Integration.
This Agreement supersedes all prior agreements and understandings (whether
written or oral) among the Issuer, PE Renaissance Potomac Edison and the
Underwriters, or any of them, with respect to the subject matter
hereof.
[Remainder
of page intentionally left blank; signature page follows]
33
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this Agreement
and
your acceptance shall represent a binding agreement among Potomac Edison,
PE
Renaissance, the Issuer and the several Underwriters.
|
Very
truly yours,
|
||
|
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
THE
POTOMAC EDISON COMPANY
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
PE
RENAISSANCE FUNDING, LLC
|
||
|
By:
|
||
|
Name:
Title:
|
||
Signature
Page to Potomac Edison Underwriting Agreement
S-1
|
The
foregoing Underwriting Agreement is hereby confirmed
and
accepted as of the date specified in Schedule
I
hereto.
|
||
|
BARCLAYS
CAPITAL INC.
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
FIRST
ALBANY CAPITAL INC.
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
LOOP
CAPITAL MARKETS, LLC
|
||
|
By:
|
||
|
Name:
Title:
|
||
Signature
Page to Potomac Edison Underwriting Agreement
S-2
SCHEDULE
I
Underwriting
Agreement dated [____________], 2007
Registration
Statement No. 333-139937
Representatives:
|
Barclays
Capital Inc.
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
|
|
First
Albany Capital Inc.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
|
Loop
Capital Markets, LLC
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
Title,
Purchase Price and Description of Bonds:
Senior
Secured Sinking Fund Environmental Control Bonds, Series A
|
Total
Principal
Amount
of
Tranche
|
Bond
Rate
|
Price
to
Public
|
Underwriting
Discounts and Commissions
|
Proceeds
to
Issuer
|
|
|
Per
Tranche A-1 Bond
|
$
|
%
|
%
|
%
|
$
|
|
Per
Tranche A-2 Bond
|
$
|
%
|
%
|
%
|
$
|
|
Per
Tranche A-3 Bond
|
$
|
%
|
%
|
%
|
$
|
|
Per
Tranche A-4 Bond
|
$
|
%
|
%
|
%
|
$
|
|
Per
Tranche A-5 Bond
|
$
|
%
|
%
|
%
|
$
|
|
Total
|
$
|
$
|
Original
Issue Discount (if any): $[ ]
Redemption
provisions:
Other
provisions:
Closing
Date, Time and Location: [ ]
SCHEDULE
II
Principal
Amount of Bonds to be Purchased
|
Principal
Amount
(in
millions)
|
||||||
|
Underwriter
|
Tranche
▇-▇
|
▇▇▇▇▇▇▇
▇-▇
|
▇▇▇▇▇▇▇
▇-▇
|
Tranche
A-4
|
Tranche
A-5
|
Total
|
|
Barclays
Capital Inc.
|
||||||
|
First
Albany Capital Inc.
|
||||||
|
Loop
Capital Markets, LLC
|
||||||
|
Bear,
▇▇▇▇▇▇▇ & Co. Inc.
|
||||||
|
Scotia
Capital
|
||||||
|
Total
|
||||||
SCHEDULE
III
Schedule
of Issuer Free Writing Prospectuses
|
A.
|
Free
Writing Prospectuses not required to be
filed
|
Electronic
Road Show
|
B.
|
Free
Writing Prospectuses Required to be filed pursuant to Rule
433
|
Preliminary
Term Sheet
Pricing
Term Sheet
SCHEDULE
IV
DESCRIPTIVE
LIST OF UNDERWRITER PROVIDED INFORMATION
A: Pricing
Prospectus
[to
come]
B. Final
Prospectus
[to
come]
EXHIBIT
10(e)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR POTOMAC EDISON AND THE ISSUER
EXHIBIT
10(f)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR POTOMAC EDISON AND THE ISSUER
EXHIBIT
10(g)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(h)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(i)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(j)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(k)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(l)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(m)
MATTERS
TO BE COVERED IN OPINION OF
[IN-HOUSE
COUNSEL] FOR THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(n)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(o)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(p)
MATTERS
TO BE COVERED IN OPINION OF
COUNSEL
FOR THE INDENTURE TRUSTEE
EXHIBIT
10(q)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(r)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(s)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(t)
MATTERS
TO BE COVERED IN OPINION OF SPECIAL
DELAWARE
COUNSEL FOR POTOMAC EDISON AND THE ISSUER
EXHIBIT
10(u)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(v)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON
EXHIBIT
10(w)
MATTERS
TO BE COVERED IN OPINION OF COUNSEL
FOR
THE ISSUER, PE RENAISSANCE AND POTOMAC EDISON