Exhibit 1.1
PSEG POWER LLC
(a Delaware limited liability company)
Senior Debt Securities
UNDERWRITING AGREEMENT
[________], 20[__]
[Names and Addresses of Underwriters]
Ladies and Gentlemen:
PSEG Power LLC, a Delaware limited liability company (the "Company"),
proposes to issue and sell up to $4,000,000,000 aggregate initial public
offering price of its senior debt securities (the "Notes"), from time to time,
in or pursuant to one or more offerings on terms to be determined at the time of
sale.
The Notes will be issued in one or more series pursuant to the provisions
of an Indenture dated as of April 16, 2001 as amended and supplemented by the
First Supplemental Indenture, dated as of March 13, 2002 (the "Indenture") among
the Company, PSEG Nuclear LLC, a Delaware limited liability company ("Nuclear"),
PSEG Fossil LLC, a Delaware limited liability company ("Fossil"), PSEG Energy
Resources & Trade LLC, a Delaware limited liability company ("ER&T"), and The
Bank of New York Mellon, a New York banking corporation, as Trustee (the
"Trustee"). The Notes and the Guarantees (as defined below) are hereinafter
together referred to as the "Securities". Nuclear, Fossil and ER&T are
individually referred to herein as a "Guarantor" and collectively referred to
herein as the "Guarantors," as the context requires. Each of Nuclear, Fossil and
ER&T will jointly and severally and unconditionally guarantee the payment of
principal and interest and any make-whole premium on the Notes (each, a
"Guarantee" and collectively, the "Guarantees"). Each series of Notes may vary,
as applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions and any
other variable terms established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities through
[______________] (the "Representative"; provided that the term "Representative"
shall only apply to [_____________] to the extent that such party is designated
as a representative of a particular offering of Securities), or through an
underwriting syndicate managed by the Representative, the Company will enter
into an agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, the Representative and
such other underwriters, if any, selected by the Representative (the
"Underwriters", which term shall include the Representative, whether acting as
sole Underwriter or as a member of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Securities shall specify the aggregate principal
amount of Securities to be initially issued (the "Initial Underwritten
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than the Representative
acting as co-manager in connection with such offering, the aggregate principal
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, whether such offering is on a fixed or variable price basis
and, if on a fixed price basis, the initial offering price, the price at which
the Initial Underwritten Securities are to be purchased by the Underwriters, the
Applicable Time (as defined below), the form, time, date and place of delivery
and payment of the Initial Underwritten Securities and any other material
variable terms of the Initial Underwritten Securities. In addition, if
applicable, such Terms Agreement shall specify whether the Company has agreed to
grant to the Underwriters an option to purchase additional Securities to cover
over-allotments, if any, and the aggregate principal amount of Securities
subject to such option (the "Option Underwritten Securities"). As used herein,
the term "Underwritten Securities" shall include the Initial Underwritten
Securities and all or any portion of any Option Underwritten Securities. The
Terms Agreement, which shall be substantially in the form of Exhibit A hereto,
may take the form of an exchange of any standard form of written
telecommunication between the Company and the Representative, acting for itself
and, if applicable, as representative of any other Underwriters. Each offering
of Underwritten Securities through the Representative as the sole Underwriter or
through an underwriting syndicate managed by the Representative will be governed
by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company and the Guarantors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-[______]) for the registration of the Securities under the Securities Act of
1933, as amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Pursuant to Rule 429 under the 1933
Act, the prospectus contained in the registration statement is a combined
prospectus and relates to the registration statement on Form S-3 (No.
333-105704) that was previously filed by the Company and the Guarantors. Such
registration statement has been declared effective by the Commission and the
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Company and the Guarantors have filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement and each such post-effective amendment has been
declared effective by the Commission. Promptly after execution and delivery of
the applicable Terms Agreement, the Company and the Guarantors will prepare and
file a prospectus supplement relating to the Underwritten Securities in
accordance with the provisions of Rule 430B ("Rule 430B") of the 1933 Act
Regulations and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act
Regulations. Any information included in such prospectus supplement that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of and included in such registration statement
pursuant to Rule 430B is referred to as "Rule 430B Information." Each
prospectus, if any, used in connection with the offering of the Underwritten
Securities that omitted Rule 430B Information, together with the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, is herein called a "preliminary prospectus." Such registration statement,
at each time of effectiveness under the 1933 Act and the 1933 Act Regulations
prior to the execution of the applicable Terms Agreement, including the
amendments thereto to such time, the exhibits and any schedules thereto at such
time, the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at such time and the documents otherwise deemed to
be a part thereof or included therein by the 1933 Act Regulations, is herein
called the "Registration
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Statement"; provided, however, that the term "Registration Statement" shall be
deemed to include information contained in the final prospectus supplement
relating to the Underwritten Securities that is retroactively deemed to be a
part of such registration statement (as amended) as of the time specified in
Rule 430B of the 1933 Act Regulations; and provided, further, that if the
Company files a registration statement with the Commission pursuant to Rule
462(b) of the 1933 Act Regulations (the "Rule 462(b) Registration Statement"),
then, after such filing, all references to "Registration Statement" shall also
be deemed to include the Rule 462(b) Registration Statement. The Registration
Statement at the time it originally became effective is herein called the
"Original Registration Statement." The base prospectus and final prospectus
supplement, in the form first furnished or made available to the Underwriters
for use in connection with the offering of the Underwritten Securities,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act at the time of the execution and delivery of the
applicable Terms Agreement, is herein called the "Prospectus." For purposes of
this Underwriting Agreement, all references to the Registration Statement, any
preliminary prospectus or the Prospectus or to any amendment or supplement to
any of the foregoing shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement thereto shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in or
otherwise deemed by the 1933 Act Regulations to be a part of or included in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be, and all references in this Underwriting Agreement to amendments or
supplements to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is or is
deemed to be incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a part of or included in the Registration Statement, such
preliminary prospectus or the Prospectus, as the case may be, after the most
recent effective date prior to the execution of the applicable Terms Agreement,
in the case of the Registration Statement, or the respective dates of any
preliminary prospectus or the Prospectus, in the case of any preliminary
prospectus and the Prospectus.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties. The Company and each Guarantor, jointly
and severally, represents and warrants to the Representative, as of the date
hereof, and to each Underwriter named in the applicable Terms Agreement, as of
the date thereof, as of the Applicable Time, as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below) (in
each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company and each
Guarantor meets the requirements for use of Form S-3 under the 1933 Act.
The Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued under the
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1933 Act and no proceedings for that purpose or pursuant to Section 8A of
the 1933 Act against the Company or any Guarantor or related to an offering
of Securities have been instituted or are pending or, to the knowledge of
the Company or any Guarantor, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with. In addition, the Indenture has been duly qualified under the
1939 Act.
At the respective times the Original Registration Statement and each
amendment thereto became effective and at each deemed effective date with
respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act
Regulations, the Registration Statement complied, complies and will comply
in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"), and did not,
does not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
The Prospectus and each amendment or supplement thereto, if any, at
the time the Prospectus or any such amendment or supplement is issued and
at the Closing Time and at each Date of Delivery, if any, complied,
complies and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations, and neither the Prospectus nor
any amendment or supplement thereto included, includes or will include an
untrue statement of a material fact or omitted, omits or will omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
Each preliminary prospectus (including the base prospectus filed as
part of the Original Registration Statement or any amendment thereto)
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered or
made available to the Underwriters for use in connection with the offering
of Underwritten Securities was and will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
As of the Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) (including the Final Term Sheet
(as defined in Section 3(b))) issued at or prior to the Applicable Time or
any preliminary prospectus relating to the Underwritten Securities
delivered or made available to the Underwriters prior to the execution of
the applicable Terms Agreement, all considered together (collectively, the
"General Disclosure Package"), nor (y) any individual Issuer Limited Use
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
As used in this subsection and elsewhere in this Agreement:
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"Applicable Time" means such time and date as indicated in the
applicable Terms Agreement.
"Issuer Free Writing Prospectus" means any "issuer free writing
prospectus," as defined in Rule 433 of the 1933 Act Regulations ("Rule
433"), relating to the Underwritten Securities that (i) is required to be
filed with the Commission, (ii) is a "road show that is a written
communication" within the meaning of Rule 433(d)(8)(i), whether or not
required to be filed with the Commission or (iii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the
Underwritten Securities or of the offering thereof that does not reflect
the final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form retained
in the Company's and each Guarantor's records pursuant to Rule 433(g).
"Issuer General Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being specified in Schedule A to the
applicable Terms Agreement, and the Final Term Sheet.
"Issuer Limited Use Free Writing Prospectus" means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
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
Underwritten Securities or until any earlier date that the Company and the
Guarantors notified or notify you as described in Section 3(e), did not,
does not and will not include any information that conflicted, conflicts or
will conflict with the information contained in the Registration Statement
or the Prospectus.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement, the
Prospectus or any Issuer Free Writing Prospectus made in reliance upon and
in conformity with written information furnished to the Company and the
Guarantors by any Underwriter through the Representative expressly for use
therein.
(2) At the earliest time that the Company, any Guarantor or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) under the ▇▇▇▇ ▇▇▇) of the Underwritten Securities and at the
date of execution of the applicable Terms Agreement, neither the Company
nor any Guarantor was or is an "ineligible issuer," as defined in Rule 405
under the 1933 Act.
(3) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, when they became effective or at the time
they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together with the other information in the
Registration Statement, any preliminary prospectus or the Prospectus, as
the case may be,
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(a) at the time the Original Registration Statement became effective, (b)
at the earlier of the time the Prospectus was first used and the date and
time of the first contract of sale of Underwritten Securities and (c) at
each Representation Date, did not and will not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(4) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement, the General Disclosure Package or the Prospectus
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations and the Public Company Accounting Oversight Board (United
States).
(5) Financial Statements. The financial statements of the Company
included in the Registration Statement, the General Disclosure Package or
the Prospectus, together with the related schedules and notes, as well as
those financial statements, schedules and notes of any other entity
included therein, present fairly the financial position of the Company and
its consolidated subsidiaries, or such other entity, as the case may be, at
the dates indicated and the statement of operations, member's equity and
cash flows of the Company and its consolidated subsidiaries, or such other
entity, as the case may be, for the periods specified. Such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement, the General Disclosure Package or the Prospectus
present fairly in accordance with GAAP the information required to be
stated therein. The Company's ratios of earnings to fixed charges included
in the General Disclosure Package or the Prospectus and in Exhibit 12 to
the Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The selected financial data and
the summary financial information included in the General Disclosure
Package or the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement, the General Disclosure
Package or the Prospectus. All disclosures contained in the Registration
Statement, the General Disclosure Package or the Prospectus, if any,
regarding "non-GAAP financial measures" (as such term is defined by the
rules and regulations of the Commission) comply with Regulation G under the
1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to the
extent applicable.
(6) No Material Adverse Change in Business. Neither the Company nor
any Guarantor has sustained since the date of the latest audited financial
statements included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus any material
loss from fire, explosion, flood, accident or other calamity not fully
covered by insurance, otherwise than as set forth or contemplated in the
Registration Statement, the General Disclosure Package and the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package or the Prospectus,
except as otherwise stated therein, (A) there has been no material adverse
change or any development involving a prospective
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material adverse change in the general affairs, financial condition,
earnings or business affairs of the Company and its subsidiaries, including
each Guarantor (each such subsidiary and Guarantor, a "Subsidiary" and,
collectively, the "Subsidiaries"), considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Change"); (B) there have been no transactions entered into by the Company
or any of its Subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise; (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any
class of its membership interests; and (D) there has not been any material
change in the long-term debt of the Company and its Subsidiaries.
(7) Good Standing of the Company. The Company has been duly organized,
is validly existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization, has the power and
authority to own its property and to conduct its business as described in
the General Disclosure Package and the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not result in a Material Adverse
Change. All of the issued membership interests in the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and are directly owned by Public Service Enterprise Group Incorporated,
free and clear of all liens, encumbrances, equities or claims.
(8) Good Standing of Subsidiaries. Each direct and indirect Subsidiary
of the Company has been duly incorporated or organized, is validly existing
as a corporation or limited liability company in good standing under the
laws of the jurisdiction of its incorporation or organization, has the
power and authority to own its property and to conduct its business as
described in the General Disclosure Package and the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not result in a Material
Adverse Change. All of the issued shares of capital stock or membership
interests of each direct and indirect Subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and are owned directly by the Company or a direct Subsidiary of the
Company, as the case may be, free and clear of all liens, encumbrances,
equities or claims. None of the outstanding shares of capital stock or
membership interests of any Subsidiary was issued in violation of
preemptive or other similar rights of any security holder of such
Subsidiary.
(9) Capitalization. If the General Disclosure Package and the
Prospectus contain a "Capitalization" section, the authorized, issued and
outstanding membership interests of the Company is as set forth in the
column entitled "Actual" under such section (except for subsequent
issuances thereof, if any, pursuant to reservations, agreements or employee
benefit plans referred to in the General Disclosure Package and the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the General Disclosure Package and the Prospectus). Such
membership interests have been duly authorized and validly issued by the
Company and are fully paid and non-
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assessable, and none of such membership interests was issued in violation
of preemptive or other similar rights of any security holder of the
Company.
(10) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company and each Guarantor.
(11) Authorization of Notes. The Notes being sold pursuant to the
applicable Terms Agreement have been, or as of the date of such Terms
Agreement will have been, duly authorized by the Company for issuance and
sale pursuant to this Underwriting Agreement and such Terms Agreement. Such
Notes, when issued and authenticated in the manner provided for in the
Indenture and delivered against payment of the consideration therefor
specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any debt securities payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United States.
Such Notes will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(12) Authorization of Guarantees. The Guarantees being sold pursuant
to the applicable Terms Agreement have been, or as of the date of such
Terms Agreement will have been, duly authorized by the Company for issuance
and sale pursuant to this Underwriting Agreement and such Terms Agreement.
Such Guarantees, when issued and authenticated in the manner provided for
in the Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and
legally binding obligations of each applicable Guarantor, enforceable
against each applicable Guarantor in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any obligations payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Guarantees will be in the form contemplated
by, and each registered holder thereof is entitled to the benefits of, the
Indenture.
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(13) Authorization of the Indenture. The Indenture has been, or prior
to the issuance of the Securities thereunder will have been, duly
authorized, executed and delivered by the Company and each Guarantor and,
upon such authorization, execution and delivery, will constitute a valid
and legally binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding
in equity or at law).
(14) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the Indenture, as of each Representation Date, when issued
and delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the General Disclosure Package and the
Prospectus and will be substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(15) Absence of Defaults and Conflicts. Neither the Company nor any of
its Subsidiaries is in violation of its Limited Liability Company Operating
Agreement, Certificate of Formation, other organization document or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
assets, properties or operations of the Company or any of its Subsidiaries
is subject (collectively, "Agreements and Instruments"), except for such
defaults that would not result in a Material Adverse Change. The execution,
delivery and performance of this Underwriting Agreement, the applicable
Terms Agreement, the Indenture, the Notes, the Guarantees and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company or the Guarantors in connection with the transactions
contemplated hereby or thereby or in the Registration Statement, the
General Disclosure Package and the Prospectus and the consummation of the
transactions contemplated herein and in the Registration Statement, the
General Disclosure Package and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the
sale of the Underwritten Securities as described under the caption "Use of
Proceeds") and compliance by the Company and the Guarantors with their
obligations hereunder and thereunder have been duly authorized by all
necessary company action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its Subsidiaries pursuant to, any Agreements and Instruments, nor will
such action result in any violation of the provisions of the governing
documents or by-laws of the Company or any of its Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
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foreign, having jurisdiction over the Company or any of its Subsidiaries or
any of their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its Subsidiaries.
(16) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its Subsidiaries exists or, to the knowledge of the
Company or the Guarantors, is imminent, and the Company and the Guarantors
are not aware of any existing or imminent labor disturbance by the
employees of any of its or any Subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Change.
(17) Absence of Proceedings. Other than as set forth in or
contemplated by the General Disclosure Package and the Prospectus, there is
no action, suit, proceeding, inquiry or investigation before or brought by
any court or governmental agency or body, domestic or foreign, now pending,
or to the knowledge of the Company or the Guarantors threatened, against or
affecting the Company or any of its Subsidiaries which is required to be
disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Change, or which might reasonably
be expected to materially and adversely affect the consolidated assets,
properties or operations thereof or the consummation of the transactions
contemplated under the General Disclosure Package and the Prospectus, this
Underwriting Agreement, the applicable Terms Agreement, the Notes, a
Guarantee or the Indenture, or the performance by the Company or any
Guarantor of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company or any of
its Subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statement, the General Disclosure Package and the Prospectus,
including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Change.
(18) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the General
Disclosure Package, the Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(19) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company and each Guarantor of this
Underwriting Agreement, the applicable Terms Agreement, the Notes and each
applicable Guarantee or for the performance by the Company and each
Guarantor of the transactions contemplated under the General Disclosure
Package and the Prospectus, this Underwriting Agreement, such Terms
Agreement, the Notes, each applicable Guarantee or the Indenture, except
the registration of the Securities under the 1933 Act, the
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qualification of the Indenture under the 1939 Act and such consents,
approvals, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issuance and sale, as
the case may be, of the Securities and except such as have been already
made, obtained or rendered, as applicable.
(20) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them. The Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Change. All of the
Governmental Licenses are valid and in full force and effect, except where
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Change. Neither the Company nor any of its Subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.
(21) Title to Property. The Company and its Subsidiaries have good and
marketable title to all real property owned by the Company and its
Subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement, the General Disclosure Package and
the Prospectus or (B) those which do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company or any of
its Subsidiaries. All of the leases and subleases material to the business
of the Company and its Subsidiaries considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties described in
the General Disclosure Package and the Prospectus, are in full force and
effect, and neither the Company nor any of its Subsidiaries has received
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its Subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such Subsidiary of the continued
possession of the leased or subleased premises under any such lease or
sublease.
(22) Facilities. The mechanical, electrical and other operating
systems in the applicable Subsidiaries' generation facilities are in good
working order and repair and are adequate in all material respects for the
present operation of the generation facilities by the Company as described
in the General Disclosure Package and the Prospectus.
(23) Insurance. The Company and its Subsidiaries have in full force
and effect insurance with reputable insurers covering their assets,
properties, operations, personnel and business against such losses, damage,
risks and hazards as are adequate in accordance with customary industry
practice to protect the Company, its Subsidiaries and their businesses.
11
(24) Commodity Exchange Act. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the
Commodity Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(25) Investment Company Act. The Company and each Guarantor is not,
and upon the issuance and sale of the Underwritten Securities as herein
contemplated and the application of the net proceeds therefrom as described
in the General Disclosure Package and the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 Act").
(26) Environmental Laws. Except as otherwise stated in the
Registration Statement, the General Disclosure Package and the Prospectus
and except as would not, singly or in the aggregate, result in a Material
Adverse Change, (A) neither the Company nor any of its Subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(27) Patriot Act. The Company will apply the net proceeds received
from the offering as provided in the section captioned "Use of Proceeds" in
the General Disclosure Package and the Prospectus and, to the best of the
Company's knowledge, none of the proceeds received from the offering will
be used to further any action in violation or contravention of the U.S.A.
Patriot Act or otherwise violate or contravene the rules, regulations or
policies of the U.S. Office of Foreign Assets Control.
(28) The Company and each of its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are
12
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the Registration Statement, the General
Disclosure Package and the Prospectus, since the end of the Company's most
recent audited fiscal year, there has been (A) no material weakness in such
party's internal control over financial reporting (whether or not
remediated) and (B) no change in such party's internal control over
financial reporting that has materially affected, or is reasonably likely
to materially affect, such internal control over financial reporting.
(29) The Company employs disclosure controls and procedures that are
designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported, within the time periods specified in
the Commission's rules and forms, and is accumulated and communicated to
the Company's management, including its principal executive officer or
officers and principal financial officer or officers, as appropriate, to
allow timely decisions regarding disclosure.
(30) There is and has been no failure on the part of the Company or
any of the Company's directors or officers, in their capacities as such, to
comply in all material respects with any provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002 and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections 302 and 906
related to certifications.
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company and the
Guarantors, as applicable, to each Underwriter as to the matters covered thereby
on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company and the Guarantors may grant, if so provided in
the applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the aggregate principal amount of the Option
Underwritten Securities set forth therein at a price per Option Underwritten
Security equal to the price per Initial Underwritten Security. Such option, if
granted, will expire 30 days after the date of such Terms Agreement, and may be
exercised in
13
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by the
Representative to the Company and the Guarantors setting forth the aggregate
principal amount of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
the Representative, but shall not be later than seven full business days after
the exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by the Representative and the Company and the Guarantors.
If the option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total aggregate principal amount of Option Underwritten
Securities then being purchased which the aggregate principal amount of Initial
Underwritten Securities each such Underwriter has severally agreed to purchase
as set forth in such Terms Agreement bears to the total aggregate principal
amount of Initial Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of the Company, ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Representative and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Representative and the Company (such time and date of payment and delivery
being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or all of the
Option Underwritten Securities, payment of the purchase price for, and delivery
of such Option Underwritten Securities, shall be made at the above-mentioned
offices of the Company, or at such other place as shall be agreed upon by the
Representative and the Company, on the relevant Date of Delivery as specified in
the notice from the Representative to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Underwritten Securities which it has severally agreed to purchase. The
Representative, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the case
may be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as the Representative may
request in writing at least one full business day prior to the Closing Time or
the relevant Date of Delivery, as the case may be. The Underwritten Securities
will be made available for examination and packaging by the Representative in
The City of New York not later than 9:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
14
SECTION 3. Covenants of the Company and the Guarantors. The Company and
each Guarantor covenants with the Representative and with each Underwriter
participating in the offering of Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company and the Guarantors, subject to Section 3(b), will comply with the
requirements of Rule 430B and will notify the Representative promptly, and
confirm the notice in writing, (i) of the effectiveness of any post-effective
amendment to the Registration Statement or of a new registration statement
relating to the Securities or the filing of any supplement or amendment to the
Prospectus or any preliminary prospectus, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or the filing of a new registration statement or any
amendment or supplement to the Prospectus or any preliminary prospectus or any
document incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or
such new registration statement or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes or of any examination pursuant to Section 8(e) of the 1933 Act
concerning the Registration Statement and (v) if the Company or any Guarantor
becomes the subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Underwritten Securities. The Company and the
Guarantors will promptly effect the filings necessary pursuant to Rule 424(b),
in the manner and within the time period required by Rule 424(b) (without
reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under Rule
424(b) was received for filing by the Commission and, in the event that it was
not, it will promptly file the Prospectus. The Company and the Guarantors will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, promptly to use its best efforts to obtain its
withdrawal.
(b) Filing of Amendments. The Company and the Guarantors will give the
Representative notice of their intention to file or prepare any amendment to the
Registration Statement or a new registration statement relating to the
Securities or any amendment, supplement or revision to any preliminary
prospectus (including the base prospectus included in the Original Registration
Statement or amendment thereto at the time it became effective) or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representative with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file or use any such document of which the Representative or counsel for the
Underwriters shall reasonably disapprove. The Company and the Guarantors will
prepare a final term sheet (the "Final Term Sheet") reflecting the final terms
of the Underwritten Securities, in form and substance satisfactory to the
Underwriters and attached as an exhibit to the applicable Terms Agreement, and
shall promptly file such Final Term Sheet as an "issuer free writing prospectus"
pursuant to Rule 433 as soon as possible after the execution of such Terms
Agreement.
(c) Delivery of Registration Statements. The Company and the Guarantors
have furnished or will deliver to the Representative and counsel for the
Underwriters, in such quantities as the Representative may reasonably request,
without charge, signed copies of the
15
Original Registration Statement and any new registration statement containing
the Prospectus and, in each case, any amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein or otherwise deemed to be a
part thereof) and signed copies of all consents and certificates of experts, and
will also deliver to the Representative, without charge, a conformed copy of the
Original Registration Statement and any new registration statement containing
the Prospectus and, in each case, any amendment thereto (without exhibits) for
each of the Underwriters. The Original Registration Statement and any new
registration statement and, in each case, any amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S T.
(d) Delivery of Prospectuses. The Company and the Guarantors will deliver
to each Underwriter, without charge, as many copies of each preliminary
prospectus and any amendment or supplement thereto as such Underwriter may
reasonably request, and the Company and each Guarantor hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company and each
Guarantor will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered (or but for the exception
afforded by Rule 172 of the 1933 Act Regulations would be required to be
delivered) under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. Each preliminary prospectus and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S T.
(e) Continued Compliance with Securities Laws. The Company and each
Guarantor will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations
so as to permit the completion of the distribution of the Underwritten
Securities as contemplated in this Underwriting Agreement and the applicable
Terms Agreement and in the Registration Statement, the General Disclosure
Package and the Prospectus. If at any time when the Prospectus is required by
the 1933 Act or the 1934 Act to be delivered (or but for the exception afforded
by Rule 172 of the 1933 Act Regulations would be required to be delivered) in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company and the Guarantors, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the General Disclosure Package or the Prospectus in
order that the General Disclosure Package or the Prospectus, as the case may be,
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement, to file a new registration
statement or to amend or supplement the General Disclosure Package or the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company and the Guarantors will: (i) promptly prepare and
file with the Commission, subject to Sections 3(b) and 3(l), such amendment or
supplement or new registration statement as may be necessary to
16
correct such statement or omission or to make the Registration Statement, the
General Disclosure Package or the Prospectus comply with such requirements; (ii)
use their best efforts to have such amendment or new registration statement
declared effective as soon as practicable (if it is not an automatic shelf
registration statement); and (iii) furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement or new registration
statement as the Underwriters may reasonably request. If, prior to the
completion of the public offer and sale of the Underwritten Securities, at any
time following the 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 any other registration statement relating to the
Underwritten Securities) or the Prospectus 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, the Company
and the Guarantors will promptly (i) notify the Representative and (ii) either
(1) amend or supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission or (2) file a report with
the Commission under the 1934 Act that corrects such untrue statement or
omission and notify the Representative in writing that such Issuer Free Writing
Prospectus shall no longer be used.
(f) Blue Sky Qualifications. The Company and the Guarantors will use their
best efforts, in cooperation with the Underwriters, to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representative may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date of the applicable Terms Agreement; provided,
however, that neither the Company nor any Guarantor shall be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each jurisdiction in
which the Underwritten Securities have been so qualified, the Company and the
Guarantors will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
General Disclosure Package and the Prospectus under "Use of Proceeds."
(i) Listing. The Company and the Guarantors will use their best efforts to
effect the listing of the Underwritten Securities, prior to the Closing Time, on
any national securities exchange or quotation system if and as specified in the
applicable Terms Agreement.
17
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, neither the Company nor any Guarantor will, without the prior written
consent of the Representative, directly or indirectly, issue, sell, offer or
contract to sell, grant any option for the sale of, or otherwise dispose of, the
Securities specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered (or but for the exception afforded by
Rule 172 of the 1933 Act Regulations would be required to be delivered) under
the 1933 Act or the 1934 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(l) Free Writing Prospectuses. The Company and each Guarantor represents
and agrees that, unless it obtains the prior consent of the Representative, and
each Underwriter represents and agrees that, unless it obtains the prior consent
of the Representative and the prior consent of the Company and each Guarantor,
it has not made and will not make any offer relating to the Underwritten
Securities that would constitute an "issuer free writing prospectus," as defined
in Rule 433, or that would otherwise constitute a "free writing prospectus," as
defined in Rule 405, required to be filed with the Commission; provided,
however, that the Underwriters are authorized to use any free writing prospectus
that contains substantially only information specified in the Final Term Sheet.
Any such free writing prospectus consented to by the Company and each Guarantor
and the Representative is hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company and each Guarantor represents that it has treated or
agrees that it will treat each Permitted Free Writing Prospectus as an "issuer
free writing prospectus," as defined in Rule 433, and has complied and will
comply with the requirements of Rule 433 applicable to each and every Permitted
Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping.
(m) Renewal of Registration Statement. The date of any agreement by an
Underwriter to act as principal or agent in connection with the Underwritten
Securities is not more than three years subsequent to the initial effective date
of the Registration Statement (the "Renewal Date"). If, immediately prior to the
third anniversary of the Renewal Date, any of such Underwritten Securities
remain unsold by the applicable Underwriter(s) and a Prospectus is required to
be delivered or made available by such Underwriter(s) under the 1933 Act or the
1934 Act in connection with the sale of such Underwritten Securities, the
Company and each Guarantor will, prior to the Renewal Date and subject to
Section 3(b), file, if they have not already done so, a new shelf registration
statement or, if applicable, an automatic shelf registration statement relating
to such Underwritten Securities, and, if such registration statement is not an
automatic shelf registration statement, will use its reasonable best efforts to
cause such registration statement to be declared effective within 180 days after
the Renewal Date, and will take all other reasonable actions necessary or
appropriate to permit the public offering and sale of such Underwritten
Securities to continue as contemplated in the expired registration statement
relating to such Underwritten Securities. References herein to the "Registration
Statement" shall include such new shelf registration statement or automatic
shelf registration statement, as the case may be.
18
SECTION 4. Payment of Expenses. (a) Expenses. The Company and the
Guarantors will pay all expenses incident to the performance of their
obligations under this Underwriting Agreement or the applicable Terms Agreement,
including (i) the preparation, printing and filing of the Original Registration
Statement (including financial statements and exhibits) and any new registration
statement containing the Prospectus and, in each case, any amendment thereto,
(ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Terms Agreement, any Agreement Among Underwriters,
the Indenture and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Underwritten Securities,
(iii) the preparation, issuance and delivery of the Underwritten Securities to
the Underwriters, including any transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Underwritten Securities to
the Underwriters, (iv) the fees and disbursements of counsel to the Company and
the Guarantors, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustee and
its counsel, (v) the qualification of the Underwritten Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of the Original
Registration Statement and any new registration statement containing the
Prospectus, each preliminary prospectus, any Issuer Free Writing Prospectus and
the Prospectus and any amendments or supplements thereto, (vii) the fees charged
by nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, (viii) the fees and expenses incurred with respect to
the listing of the Underwritten Securities, (ix) the filing fees incident to,
and the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review, if any, by the Financial Industry Regulatory
Authority ("FINRA") of the terms of the sale of the Underwritten Securities, (x)
all other costs and expenses incident to the performance of obligations
hereunder which are not otherwise specifically provided for in this Section and
(xi) the fees and expenses of any Underwriter acting in the capacity of a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of the
Conduct Rules of the FINRA), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by the Representative in accordance with the provisions of Section 5
hereof, the Company shall reimburse the Underwriters for all of their out of
pocket expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company and the Guarantors contained in Section 1 hereof
or in certificates of any officer of the Company, any Guarantor or any of their
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company and the Guarantors of their covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time, (i) the
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no
19
proceedings for that purpose or pursuant to Section 8A of the 1933 Act against
the Company or any Guarantor or related to an offering of Securities shall have
been instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of counsel for the Underwriters,
(ii) each preliminary prospectus and the Prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430B) and (iii)
the Final Term Sheet and any other material required to be filed by the Company
and the Guarantors pursuant to Rule 433(d) of the 1933 Act Regulations shall
have been filed with the Commission within the applicable time periods
prescribed for such filings under such Rule 433.
(b) Opinion of Counsel for Company. At Closing Time, the Representative
shall have received the favorable opinion, dated as of Closing Time, of any of
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, R. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire, or ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire,
counsel for the Company and the Guarantors, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters, to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of Closing
Time, of Sidley Austin LLP, counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters, with
respect to the matters set forth in (4) to (8), (9) (solely as to the
information in the General Disclosure Package and the Prospectus under
"Description of Debt Securities," or any caption purporting to describe any such
Securities), (15), (16), (19) and the penultimate paragraph of Exhibit B hereto.
In giving such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its Subsidiaries and certificates of public officials.
(d) Officer's Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the General Disclosure Package or the
Prospectus, any Material Adverse Change, and the Representative shall have
received a certificate of the Chairman, the President or any Vice President of
the Company and of an executive officer of each Guarantor, dated as of Closing
Time, to the effect that (i) there has been no such Material Adverse Change,
(ii) the representations and warranties in Section 1(a) are true and correct
with the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company and each Guarantor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose or
pursuant to Section 8A of the 1933 Act against the Company or any Guarantor or
relating to the offering
20
have been instituted, are pending or, to the best of such officer's knowledge,
are threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representative shall be furnished with a letter
from Deloitte & Touche LLP dated such date and addressed to the Board of
Directors of the Company and the Representative (on its own behalf and as
representative of the Underwriters) with copies thereof for each of the
Underwriters, to the effect that (i) they are independent public accountants
with respect to the Company and its Subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations; (ii) in their opinion, the audited
consolidated financial statements and financial statement schedule(s)
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus and included in the Company's most recent Annual
Report on Form 10-K filed with the Commission under Section 13 of the 1934 Act
(the "Form 10-K") comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations; (iii) on the basis of (1) the performance of the
procedures specified by the American Institute of Certified Public Accountants
for a review of interim financial information as described in Statement on
Auditing Standards No. 100, Interim Financial Information, on the unaudited
consolidated balance sheets, the unaudited consolidated statements of income and
retained earnings, and the unaudited consolidated statements of cash flows of
the Company and its Subsidiaries incorporated by reference in the Registration
Statement, the General Disclosure Package or the Prospectus and included in the
Company's Form 10-Q Quarterly Reports filed with the Commission under Section 13
of the 1934 Act (the "Forms 10-Q") subsequent to the most recent Form 10-K, (2)
a reading of the latest available unaudited financial statements of the Company,
(3) a reading of the latest Consent of the Sole Shareholder in Lieu of Annual
Meeting, the minutes of Meetings of the Board of Directors of the Company as set
forth in the minute books for the current year and certain draft resolutions for
subsequent meetings, and (4) inquiries of the officers of the Company who have
responsibility for financial and accounting matters (it being understood that
the foregoing procedures do not constitute an audit made in accordance with
generally accepted auditing standards and would not necessarily reveal matters
of significance with respect to the comments made in such letter, and
accordingly that Deloitte & Touche LLP makes no representation as to the
sufficiency of such procedures for the purposes of the Underwriters), nothing
has come to their attention which caused them to believe that (A) any material
modifications should be made to the unaudited financial statements included in
the Forms 10-Q for them to be in conformity with GAAP; (B) the unaudited
financial statements included in the Forms 10-Q do not comply as to form in all
material respects with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations; or (C) at the date of the latest available
financial statements and at a specified date not more than three business days
prior to the date of such letter, there was any change in the common stock or
preferred stock or increase in long-term debt (except for such stock and
long-term debt acquired for sinking fund purposes or redeemed pursuant to
optional redemption or sinking fund provisions, or changes in capital lease
obligations incurred in the ordinary course of the Company's business) of the
Company or any decreases in the consolidated net assets or consolidated net
current assets of the Company (except as occasioned by the declaration of
dividends), in each case as compared with the amounts shown on the most recent
consolidated balance sheet of the Company incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus or,
during the period from the date of such balance sheet to a specified date not
more than three
21
business days prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in consolidated
revenues, operating income, or net income of the Company, except in each such
case as set forth in or contemplated by the Registration Statement, the General
Disclosure Package and the Prospectus or except for such exceptions enumerated
in such letter as shall have been agreed to by the Underwriters and the Company
and the Guarantors; (iv) in addition to the audit referred to in their report
included or incorporated by reference in the Registration Statement, the General
Disclosure Package or the Prospectus, and the limited procedures referred to in
clause (iii) above, they have carried out certain other specified procedures,
not constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus and
which are specified by the Underwriters, and have found such amounts,
percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its Subsidiaries
identified in such letter, provided, that said letter may vary from requirements
specified above in such manner as the Representative may deem not to be material
or as may be acceptable to the Representative with the consent of Underwriters
who, together with the Representative have agreed to purchase in the aggregate
50% or more of the Underwritten Securities.
(f) Bring-down Comfort Letter. At Closing Time, the Representative shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, in
form and substance satisfactory to the Representative, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section 5, except that the specified date referred to
shall be a date not more than three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any "nationally
recognized statistical rating organization", as defined by the Commission for
purposes of Rule 436(g)(2) of the 1933 Act Regulations, as specified in the
applicable Terms Agreement, and the Company shall have delivered to the
Representative a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to the Representative, confirming
that the Underwritten Securities have such ratings. Since the time of execution
of such Terms Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or any of the
Company's or any Guarantor's other securities by any such rating organization,
and no such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of the
Company's or any Guarantor's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities shall
have been approved for listing, subject only to official notice of issuance, if
and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the FINRA for review, the FINRA
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
22
(j) Lock-up Agreements. On the date of the applicable Terms Agreement, the
Representative shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company and the Guarantors contained herein and the statements in any
certificates furnished by the Company, any Guarantor or any of their
subsidiaries hereunder shall be true and correct as of each Date of Delivery,
and, at the relevant Date of Delivery, the Representative shall have received:
(1) A certificate, dated such Date of Delivery, of the Chairman, the
President or any Vice President of the Company and of an executive officer
of each Guarantor, confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as
of such Date of Delivery.
(2) The favorable opinion of any of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, R.
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire, or ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, counsel for the
Company and each Guarantor, each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(3) The favorable opinion of Sidley Austin LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(4) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to
the Representative pursuant to Section 5(f) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph shall
be a date not more than three business days prior to such Date of
Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's or any Guarantor's
other securities by any nationally recognized statistical rating
organization, and no such rating organization shall have publicly
announced that it has under surveillance or review its rating of the
Underwritten Securities or any of the Company's or any Guarantor's other
securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale
23
of the Underwritten Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company and each Guarantor in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the obligations of the
Underwriters to purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by the Representative by notice to the Company at
any time at or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and each Guarantor,
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430B Information,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, any
Issuer Free Writing Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission referred to in
subsection (i) above or any alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use in
24
the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or any preliminary prospectus, any Issuer Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto) or made in reliance
upon the Trustee's Statement of Eligibility filed as an exhibit to the
Registration Statement.
(b) In no case shall the Company or any Guarantor be liable under the
indemnity agreement set forth in Section 6(a) hereof with respect to any claim
made against any Underwriter or any such controlling person unless such party
shall be notified in writing of the nature of the claim promptly after the
assertion thereof, but failure to so notify such party shall not relieve it from
any liability which it may have otherwise than on account of said indemnity
agreement. The Company and the Guarantors shall be entitled to participate at
their own expense in the defense, or, if they so elects, within a reasonable
time after receipt of such notice, to assume the defense of any suit brought to
enforce any such claim, but if they so elect to assume the defense, such defense
shall be conducted by counsel chosen by them and approved by the Underwriter or
Underwriters or controlling person or persons, defendant or defendants in any
suit so brought, which approval shall not be unreasonably withheld. In the event
that the Company and the Guarantors elect to assume the defense of any such suit
and retain such counsel, the Underwriter or Underwriters or controlling person
or persons, defendant or defendants in the suit shall bear the fees and expenses
of any additional counsel thereafter retained by them. In the event that the
parties to any such action (including impleaded parties) include the Company or
the Guarantors and one or more Underwriters and any such Underwriter shall have
been advised by counsel chosen by it and satisfactory to the Company, as the
case may be, that there may be one or more legal defenses available to it which
are different from or additional to those available to the Company or the
Guarantors, the Company or the Guarantors shall not have the right to assume the
defense of such action on behalf of such Underwriter and the Company and the
Guarantors will reimburse such Underwriter and any person controlling such
Underwriter as aforesaid for the reasonable fees and expenses of any counsel
retained by them, it being understood that the Company and the Guarantors shall
not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling persons,
which firm shall be designated by the Representative in writing. The Company
agrees to notify the Representative promptly after the assertion of any claim
against it, any of its directors, any of its officers who signed the
Registration Statement, or any person who controls it within the meaning of
Section 15 of the 1933 Act, in connection with the issuance and sale, as the
case may be, of the Securities.
(c) Indemnification of the Company, the Guarantors, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Guarantors, their directors, each of their officers who signed the
Registration Statement, and each person, if any, who controls the Company or any
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430B Information, or any preliminary
prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to
25
the Company and the Guarantors by such Underwriter through the Representative
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus, such Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto). In case any action shall be
brought against the Company, any Guarantor or any person so indemnified based on
the Registration Statement, such preliminary prospectus, such Issuer Free
Writing Prospectus or the Prospectus, or any amendment or supplement thereto and
in respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company and the
Guarantors, and the Company and the Guarantors and each person so indemnified
shall have the rights and duties given to the Underwriters by the provisions of
Section 6(b) hereof.
(d) The indemnity agreements contained in this Section 6 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Company, the Guarantors, or any Underwriter or any
controlling person, and shall survive the delivery of the Securities to the
Underwriters.
(e) Settlement. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the Guarantors
and the Underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreements incurred by the Company, the Guarantors and one or more of the
Underwriters, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount in the
Terms Agreement or appearing on the cover page of the Prospectus relating to the
Securities bears to the initial public offering price appearing thereon and the
Company and the Guarantors are responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company or any Guarantor, each officer of
the Company or any Guarantor who signed the Registration Statement, and each
person, if any, who controls the Company or any Guarantor within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company and the Guarantors. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the aggregate
principal amount of Initial Underwritten
26
Securities set forth opposite their respective names in the applicable Terms
Agreement and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company, any Guarantor or any of their subsidiaries submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or any Guarantor, and
shall survive delivery of and payment for the Underwritten Securities.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company and the Guarantors shall not be under any liability to any Underwriter
except as provided in Sections 4, 6 and 7 hereof; but if, for any other reason
the transactions contemplated herein are not consummated, the Company and the
Guarantors will reimburse the Underwriters for all out of pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Securities, but the Company and the Guarantors shall then be under no further
liability to the Underwriters in respect of the Securities not so delivered
except as provided in Sections 4, 6 and 7 hereof. Except as provided above, the
Company and the Guarantors shall not be liable to the Underwriters for damages
on account of any other consequential damages or loss of anticipated profits.
In all dealings hereunder, the Representative shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representative or by the Representative on behalf of the
Underwriters.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company and the Guarantors or by the Representative upon the giving of 30 days'
prior written notice of such termination to the other party hereto.
(b) Terms Agreement. The Representative may terminate the applicable Terms
Agreement, by notice to the Company and the Guarantors, at any time at or prior
to the Closing Time or any relevant Date of Delivery, (i) if there has been,
since the time of execution of this Underwriting Agreement or since the
respective dates as of which information is given in the General Disclosure
Package or the Prospectus, any Material Adverse Change, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Underwriters,
impracticable or inadvisable to market the Underwritten Securities or to enforce
contracts for the sale of the Underwritten Securities, or (iii) if trading in
any securities of the Company or any Guarantor has been suspended or materially
limited by the Commission or the
27
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq Stock Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the FINRA or any other governmental
authority, or a material disruption has occurred in commercial banking or
settlement or clearance services in the United States, or (iv) if a banking
moratorium has been declared by either federal or New York authorities or (v) if
the rating accorded the Securities or any debt securities or other security of
the Company or any Guarantor, by any nationally recognized statistical rating
organization shall have been decreased or withdrawn or any such rating
organization has publicly announced or given notice of any intended or potential
decrease in or withdrawal of any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then the Representative shall have the right, within 36
hours thereafter, to make arrangements for one or more of the non defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 36 hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations under
such Terms Agreement bear to the underwriting obligations of all non
defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to
be purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and the
Company and the Guarantors to sell, such Option Underwritten
Securities on such Date of Delivery) shall terminate without
liability on the part of any non defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
28
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company and the Guarantors with respect to the related
Option Underwritten Securities, as the case may be, either the Representative,
on the one hand, or the Company and the Guarantors, on the other, shall have the
right to postpone the Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement, the General Disclosure Package or the
Prospectus or in any other documents or arrangements.
SECTION 11. No Advisory or Fiduciary Relationship. The Company and each
Guarantor, jointly and severally, acknowledges and agrees that (a) the purchase
and sale of the Underwritten Securities pursuant to this Underwriting Agreement
and the applicable Terms Agreement, including the determination of the public
offering price of the Underwritten Securities and any related discounts and
commissions, is an arm's-length commercial transaction among the Company and the
Guarantors, on the one hand, and the Underwriters, on the other hand, (b) in
connection with the offering contemplated by this Underwriting Agreement and the
applicable Terms Agreement and the process leading to such transaction, each
Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company or any Guarantor, or their members, creditors,
employees or any other party, (c) no Underwriter has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company or any Guarantor
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether such Underwriter has advised or is currently advising
the Company or any Guarantor on other matters) and no Underwriter has any
obligation to the Company or any Guarantor with respect to the offering
contemplated by this Underwriting Agreement and the applicable Terms Agreement
except the obligations expressly set forth in this Underwriting Agreement and
the applicable Terms Agreement, (d) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company or any Guarantor and (e) no
Underwriter has provided any legal, accounting, regulatory or tax advice with
respect to the offering contemplated by this Underwriting Agreement and the
applicable Terms Agreement and the Company and each Guarantor has consulted its
own legal, accounting, regulatory and tax advisors to the extent it deemed
appropriate.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at [__________________],
Attention: [____________]; and notices to the Company or the Guarantors shall be
directed to them at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇ Esq.
SECTION 13. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
the Guarantors, the Representative and, upon execution of such Terms Agreement,
any other Underwriters and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Guarantors and their respective successors and
29
the controlling persons and officers and directors referred to in Sections 6 and
7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting Agreement or such Terms
Agreement or any provision herein or therein contained. This Underwriting
Agreement and such Terms Agreement and all conditions and provisions hereof and
thereof are intended to be for the sole and exclusive benefit of the parties
hereto and thereto and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
30
SECTION 15. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
Very truly yours,
PSEG POWER LLC
By:
--------------------------
Name:
Title:
PSEG NUCLEAR LLC
By:
--------------------------
Name:
Title:
PSEG FOSSIL LLC
By:
--------------------------
Name:
Title:
PSEG ENERGY RESOURCES & TRADE LLC
By:
--------------------------
Name:
Title:
31
Confirmed and accepted as of
the date first above written:
[NAME OF REPRESENTATIVE]
By:
------------------------
Authorized Signatory
Acting on behalf of itself and as representative
of the other named Underwriters
32
Exhibit A
PSEG POWER LLC
(a Delaware Limited liability company)
Senior Debt Securities
TERMS AGREEMENT
______________, 20__
To: PSEG Power LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that PSEG Power LLC, a Delaware limited liability company
(the "Company"), proposes to issue and sell $_____________ aggregate principal
amount of its senior debt securities (the "Debt Securities") (such securities
also being hereinafter referred to as the "Underwritten Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
underwriters named below (the "Underwriters") offer to purchase, severally and
not jointly, the principal amount of Underwritten Securities opposite their
names set forth below at the purchase price set forth below.
Underwriter Principal Amount of
----------- Underwritten Securities
-----------------------
$
-------------
Total $
=============
The Underwritten Securities shall have the following terms:
Title of Securities:
Rank:
Ratings: ▇▇▇▇▇'▇ Investors Service, Inc.:
Standard & Poor's Ratings Services:
Aggregate principal amount:
Aggregate principal amount of Option Underwritten Securities:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Listing requirements:
Black-out provisions:
Method of Offering: Fixed Price: % of principal amount plus accrued interest,
if any from , 20 .
Variable Price
Purchase price: % of principal amount (payable in [same] [next] day funds)
plus accrued interest, if any, from , 20 .
Form:
Issuer General Use Free Writing Prospectus (including the Final Term Sheet, if
applicable): See Schedule A hereto.
Applicable Time:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "PSEG POWER LLC - Senior Debt Securities -- Underwriting Agreement" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein as
therein defined.
A-2
Please accept this offer no later than o'clock P.M. (New York City time)
on _____________, 20___ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[UNDERWRITERS]
By: [Representative]
----------------------------------
Authorized Signatory
Acting on behalf of itself and as
representative of the other named
Underwriters.
Accepted:
PSEG POWER LLC
By:
-------------------------
Name:
Title:
PSEG NUCLEAR LLC
By:
-------------------------
Name:
Title:
PSEG FOSSIL LLC
By:
-------------------------
Name:
Title:
PSEG ENERGY RESOURCES & TRADE LLC
By:
-------------------------
Name:
Title:
A-3
Schedule A
to Terms Agreement
[Attach Issuer Free Writing Prospectus(es)
A-4
Exhibit B
FORM OF OPINION OF COMPANY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly organized, is validly existing as a limited
liability company in good standing under the laws of the jurisdiction of its
organization, has the power and authority to own its property and to conduct its
business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not result in a Material Adverse Change. All of the issued
membership interests in the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are directly owned by Public
Service Enterprise Group Incorporated, free and clear of all liens,
encumbrances, equities or claims.
(2) Each Subsidiary of the Company, including each Guarantor, has been
duly incorporated or organized, is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction of its
incorporation or organization, has the power and authority to own its property
and to conduct its business as described in the General Disclosure Package and
the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
result in a Material Adverse Change. All of the issued shares of capital stock
or membership interests of each Subsidiary of the Company, including each
Guarantor, have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company or a direct Subsidiary of
the Company, as the case may be, free and clear of all liens, encumbrances,
equities or claims. None of the outstanding shares of capital stock or
membership interests of any Subsidiary of the Company, including each Guarantor,
was issued in violation of preemptive or other similar rights of any security
holder of such Subsidiary.
(3) If the General Disclosure Package and the Prospectus contain a
"Capitalization" section, the authorized, issued and outstanding membership
interests of the Company is as set forth in the column entitled "Actual" under
such section (except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the General
Disclosure Package and the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the General Disclosure Package and the
Prospectus). Such membership interests have been duly authorized and validly
issued by the Company and are fully paid and non-assessable, and none of such
membership interests was issued in violation of preemptive or other similar
rights of any security holder of the Company.
(4) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company and each Guarantor.
B-1
(5) The Notes being sold pursuant to the applicable Terms Agreement have
been, or as of the date of such Terms Agreement will have been, duly authorized
by the Company for issuance and sale pursuant to the Underwriting Agreement and
such Terms Agreement. Such Notes, when issued and authenticated in the manner
provided for in the Indenture and delivered against payment of the consideration
therefor specified in such Terms Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any debt securities payable in a
foreign or composite currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by governmental
authority to limit, delay or prohibit the making of payments outside the United
States. Such Notes will be in the form contemplated by, and each registered
holder thereof is entitled to the benefits of, the Indenture.
(6) The Guarantees being sold pursuant to the applicable Terms Agreement
have been, or as of the date of such Terms Agreement will have been, duly
authorized by the Company for issuance and sale pursuant to the Underwriting
Agreement and such Terms Agreement. Such Guarantees, when issued and
authenticated in the manner provided for in the Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and legally binding obligations of each applicable Guarantor,
enforceable against each applicable Guarantor in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
except further as enforcement thereof may be limited by requirements that a
claim with respect to any obligations payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to limit,
delay or prohibit the making of payments outside the United States. Such
Guarantees will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(7) The Indenture has been, or prior to the issuance of the Securities
thereunder will have been, duly authorized, executed and delivered by the
Company and each Guarantor and, upon such authorization, execution and delivery,
will constitute a valid and legally binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
B-2
(8) The Indenture conforms, and the Underwritten Securities being sold
pursuant to the applicable Terms Agreement, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will conform,
in all material respects to the statements relating thereto contained in the
General Disclosure Package and the Prospectus and are in substantially the form
filed or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(9) The information in the General Disclosure Package and the Prospectus
under "Description of Debt Securities" or any caption purporting to describe any
such Securities, in the Annual Report on Form 10-K under "Regulatory Issues" and
"Environmental Matters" in Item 1 - Business and under Item 3 - Legal
Proceedings, to the extent that it constitutes matters of law, summaries of
legal matters or the Company's or any Guarantor's organizational documents,
by-laws or legal proceedings, or legal conclusions, has been reviewed by me and
is correct in all material respects.
(10) To the best of my knowledge, neither the Company nor any of its
Subsidiaries, including the Guarantors, is in violation of its charter or
by-laws and no default by the Company or any of its Subsidiaries, including the
Guarantors, exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement, the
General Disclosure Package or the Prospectus or filed or incorporated by
reference as an exhibit to the Registration Statement.
(11) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement, the Notes, the Guarantees and the
Indenture and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company or any Guarantor in connection with the
transactions contemplated in the Registration Statement, the General Disclosure
Package, and the Prospectus and the consummation of the transactions
contemplated in the Underwriting Agreement and such Terms Agreement and in the
Registration Statement, the General Disclosure Package and the Prospectus
(including the issuance and sale of the Underwritten Securities and the use of
the proceeds from the sale of the Underwritten Securities as described under the
caption "Use of Proceeds") and compliance by the Company and the Guarantors with
their obligations thereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets, properties or
operations of the Company, the Guarantors or any of their subsidiaries pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to me, to which the
Company, any Guarantor or any of their subsidiaries is a party or by which it or
any of them may be bound, or to which any of the assets, properties or
operations of the Company, any Guarantor or any of their subsidiaries is
subject, nor will such action result in any violation of the provisions of the
organizational documents or by-laws of the Company, any Guarantor or any of
their subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, any Guarantor or any of their subsidiaries or any of their assets,
properties or operations.
B-3
(12) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company, any
Guarantor or any of their subsidiaries is a party or to which the assets,
properties or operations of the Company, any Guarantor or any of their
subsidiaries is subject, before or by any court or governmental agency or body,
domestic or foreign, which might reasonably be expected to result in a Material
Adverse Change or which might reasonably be expected to materially and adversely
affect the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Underwriting Agreement, the applicable Terms
Agreement, the Notes, the Guarantees or the Indenture or the performance by the
Company or any Guarantor of its obligations thereunder.
(13) All descriptions in the General Disclosure Package and the Prospectus
of contracts and other documents to which the Company, any Guarantor or their
subsidiaries are a party are accurate in all material respects. To the best of
my knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the General Disclosure Package or the Prospectus or to be filed
as exhibits to the Registration Statement other than those described or referred
to therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
(14) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the General Disclosure Package and the
Prospectus that are not described as required.
(15) The Registration Statement has been declared effective under the 1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b). To the best of
my knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been initiated or are pending or threatened by the Commission.
(16) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, as of their respective effective or issue
dates (other than the financial statements and supporting schedules included or
incorporated by reference therein or omitted therefrom and the Trustee's
Statement of Eligibility on Form T-1 (the "Form T-1"), as to which I express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(17) The documents incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus (other than the
financial statements and supporting schedules included or incorporated by
reference therein or omitted therefrom, as to which I express no opinion), when
they became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the 1933
Act or the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder; and, on the basis of a general review and discussion with
certain officers and employees of the Company but without independent check or
verification, I have no reason to believe that any of
B-4
such documents, when such documents were so filed, contained 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 under which they
were made, not misleading.
(18) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company or any Guarantor of the Underwriting
Agreement, the applicable Terms Agreement, the Notes, the Guarantees or for the
performance by the Company or any Guarantor of the transactions contemplated
under the General Disclosure Package, the Prospectus, the Underwriting
Agreement, the Notes, the Guarantees, such Terms Agreement or the Indenture,
other than (i) under the 1933 Act, the 1933 Act Regulations, the 1939 Act and
the 1939 Act Regulations, which have already been made, obtained or rendered, as
applicable, (ii) such as may be required under state securities or Blue Sky laws
and (iii) such others that have been already made, obtained or rendered, as
applicable.
(19) The Indenture has been duly qualified under the 1939 Act.
(20) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, and the
Commodity Exchange Act Regulations.
(21) The Company and each of the Guarantors is not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the General Disclosure
Package and the Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" required to be registered under the 1940
Act.
Nothing has come to my attention that would lead me to believe that: (i)
the Original Registration Statement or any post-effective amendment thereto
(except for financial statements and supporting schedules and other financial
data included or incorporated by reference therein or omitted therefrom and for
the Form T-1, as to which I make no statement), at the time the Original
Registration Statement or any such amendment thereto became effective or at the
date of the applicable Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) the
Registration Statement, including the Rule 430B Information (except for
financial statements and supporting schedules and other financial data included
or incorporated by reference therein or omitted therefrom and for the Form T-1,
as to which I make no statement), at each deemed effective date with respect to
the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; (iii) the General Disclosure Package (except for the financial
statements and supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which I make no
statement), as of the Applicable Time, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of circumstances under which they were
made, not misleading; or (iv) the Prospectus or any amendment or supplement
thereto (except for financial statements and supporting schedules and other
financial data included or incorporated by reference therein or omitted
therefrom, as to which I make no statement), at the time the
B-5
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. With respect to statements contained in the General
Disclosure Package, any statement contained in any of the constituent documents
shall be deemed to be modified or superseded to the extent that any information
contained in subsequent constituent documents modifies or replaces such
statement.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and the Guarantors and
public officials. Such opinion shall not state that it is to be governed or
qualified by, or that it is otherwise subject to, any treatise, written policy
or other document relating to legal opinions, including, without limitation, the
Legal Opinion Accord of the ABA Section of Business Law (1991).
B-6