EXHIBIT 1.2(b)
EXECUTION COPY
Duquesne Light Company
First Mortgage Bonds, Series P
Underwriting Agreement
New York, New York
April 24, 2002
To the Representatives
named in Schedule I hereto
of the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Duquesne Light Company, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for which you
(the "Representatives") are acting as representatives, the principal amount of
its securities identified in Schedule I hereto (the "Bonds"), to be issued under
an Indenture of Mortgage and Deed of Trust (the "Original Mortgage"), dated as
of April 1, 1992, between the Company and JPMorgan Chase Bank, as trustee
(successor by merger to The Chase Manhattan Bank, successor in trust to Mellon
Bank, N.A., the "Trustee"), as heretofore amended and supplemented by several
supplemental indentures (the "Mortgage"), including Supplemental Indenture No.
19, dated as of April 15, 2002 (the "Supplemental Indenture"). Payment of
principal and interest on the Bonds when due will be insured by a financial
guaranty insurance policy in substantially the form of Appendix A to the Final
Prospectus (the "Financial Guaranty Insurance Policy") to be issued by Ambac
Assurance Corporation (the "Insurer") simultaneously with the delivery of the
Bonds. To the extent that there are no Underwriters listed on Schedule I other
than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
* "Pines(R)" is a registered service xxxx of Xxxxxxx Xxxxx Xxxxxx Inc.
incorporated therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Bonds. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus, each of which
has previously been furnished to you. The Company will next file with the
Commission a final prospectus and prospectus supplement in accordance with
Rules 415 and 424(b) As filed, such final prospectus and prospectus
supplement shall contain all required information, and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x) and
complies in all other material respects with Rule 415.
(b) On the Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the applicable instructions, rules and regulations
thereunder; at the Execution Time and on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Mortgage did
or will comply in all material respects with the applicable requirements of
the Trust Indenture Act and the instructions, rules and regulations
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee (the
"Form T-1"), (ii) any information contained in the supplement to the Final
Prospectus specified to have been furnished or obtained from The Depository
Trust Company, (iii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
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the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto) or (iv) any information included or
incorporated by reference in the Final Prospectus under the heading "The
Insurance Policy and the Insurer -- Ambac Assurance Corporation."
(c) The Company is not in violation of its Restated Articles of
Incorporation, as amended (the "Restated Articles"), or its By-Laws, as
amended (the "By-Laws"), or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, agreement or other instrument to which it is a party or by which
it may be bound, the effect of which is material to the Company, and
neither the execution or delivery of this Agreement, the consummation of
the transactions herein contemplated, the fulfillment of the terms hereof
or of the Mortgage or the Bonds, nor compliance with the terms and
provisions hereof or of the Mortgage or the Bonds will conflict with, or
result in a breach or violation of, or constitute a default under (i) any
provision of the Restated Articles, the By-Laws, or the terms of any
indenture, contract, agreement or other obligation, condition, covenant or
instrument to which the Company is a party or by which it may be bound or
(ii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company of any court or any federal or state governmental
body having jurisdiction over the Company or over its properties.
(d) The Mortgage has been duly authorized and has been duly qualified
under the Trust Indenture Act and, at the Closing Date, will have been duly
executed and delivered by the Company and will constitute a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of mortgagees' and other creditors'
rights, including, without limitation, bankruptcy and insolvency laws, and
to general principles of equity.
(e) The Bonds have been duly and validly authorized and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated in accordance with the provisions of the Mortgage and
delivered to and paid for by the Underwriters pursuant to this Agreement,
the Bonds will constitute legal, valid and binding obligations of the
Company, subject, as to enforcement, to laws relating to or affecting
generally the enforcement of mortgagees' and other creditors' rights,
including, without limitation, bankruptcy and insolvency laws, and to
general principles of equity and will be entitled to the security afforded
by the Mortgage equally and ratably with the bonds outstanding thereunder.
(f) The Securities Certificate filed by the Company with the
Pennsylvania Public Utility Commission with respect to the Bonds has been
duly registered, is in full force and effect and is not the subject of any
appeal or other proceeding. Each Bond issued as contemplated herein will
comply with the terms and conditions of such Securities Certificate.
(g) The Company is a corporation presently subsisting under the laws
of the Commonwealth of Pennsylvania, with full corporate power and
authority to own its properties and conduct its business as described in
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the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction in
which it owns or leases substantial properties or in which the conduct of
its business requires such qualification.
(h) No consent, approval, authorization, filing with or order of any
court or other governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement except such as have been
obtained and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and sale of the Bonds in the
manner contemplated in this Agreement and in the Final Prospectus.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Bonds shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Bonds set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Bonds shall
be made on the date and at the time specified in Schedule I hereto or at such
time on such later date not more than five Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Bonds being herein called the "Closing Date"). Delivery of the Bonds shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Bonds shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Bonds for sale to the public as set forth in
the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Bonds, the Company
will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final Prospectus) to the
Basic Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and gives
you reasonable opportunity to comment. Subject to the foregoing sentence,
the Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
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will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(2) when, prior to termination of the offering of the Bonds, any amendment
to the Registration Statement shall have been filed or become effective,
(3) of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information,
(4) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Bonds for sale in any jurisdiction or the institution
or threatening of any proceeding for such purpose. The Company will use its
commercially reasonable best efforts to obtain as soon as possible the
withdrawal of any such stop order or suspension.
(b) If, at any time when a prospectus relating to the Bonds is require
to be delivered under the Act, any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective instructions, rules and regulations
thereunder, the Company promptly will (1) notify the Representatives of
such event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance and
(3) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request; provided, however, that should any such event
relate solely to activities of the Underwriters, then the Underwriters
shall assume the expense of preparing and furnishing any such amendment or
supplement.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11 (a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto, other than those incorporated by
reference) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and
any supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
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(e) The Company will arrange, if necessary, for the qualification of
the Bonds for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Bonds; provided, however,
that the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction, or
to comply with any other requirement reasonably deemed by the Company to be
unduly burdensome.
(f) Until the Business Day set forth on Schedule I hereto, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx Barney Inc.,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any secured debt securities
issued or guaranteed by the Company (other than the Bonds) or publicly
announce an intention to effect any such transaction.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Bonds.
(h) The Company will effect the listing of the Bonds on the New York
Stock Exchange (the "Exchange"). The fees and expenses incurred in
connection with the listing of the Bonds on the Exchange shall be paid by
the Company. The obligations of the Underwriters to purchase and pay for
the Bonds shall be conditioned on the Bonds being approved for listing on
the Exchange, subject to official notice of issuance.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Bonds shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the Execution Time and the Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused Xxxxxxx X. Xxxxxxx,
Esq., Assistant General Counsel of the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
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(i) the Company is a corporation presently subsisting under the
laws of the Commonwealth of Pennsylvania, with full corporate power
and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each other jurisdiction in which it owns or leases substantial
properties or in which the conduct of its business requires such
qualification;
(ii) all the outstanding shares of capital stock of each material
subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of each
material subsidiary are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; and, except as set forth in the Final
Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding;
(iv) the Mortgage has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, (1) to laws relating to or
affecting generally the enforcement of mortgagees' and other
creditors' rights, including, without limitation, bankruptcy and
insolvency laws, and to general principles of equity, (2) to laws
relating to or affecting certain of the remedies to enforce the
security provided thereby, which laws, however, in such counsel's
opinion, do not render insufficient the remedies necessary in order to
realize the benefits of such security and (3) to the following
limitations: (a) the provisions of the Mortgage subjecting to the lien
thereof after-acquired real property of the Company in some cases may
not be effective against creditors or purchasers for value without
notice, whose rights to such property attach prior to recording of a
supplemental indenture or other instrument specifically subjecting
such property to the lien of the Mortgage and (b) the provisions of
the Mortgage subjecting after-acquired property of the Company to the
lien thereof may be affected by laws relating to preferential
transfers of property during certain periods prior to commencement of
bankruptcy insolvency or similar proceedings; the statements in the
Final Prospectus under "Supplemental Description of the
Bonds--Security" and "Description of the Bonds--Security--General" and
"--Lien of the Mortgage" are correct in all material respects; and the
Mortgage conforms as to legal matters in all material respects to the
description of the terms thereof contained in the Registration
Statement and the Final Prospectus;
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(v) the Bonds have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Mortgage and
delivered to and paid for by the Underwriters pursuant to this
Agreement, the Bonds will constitute legal, valid and binding
obligations of the Company enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of mortgagees' and other creditors' rights, including,
without limitation, bankruptcy and insolvency laws, and to general
principles of equity, and will be entitled to the security afforded by
the Mortgage equally and ratably with the securities outstanding
thereunder; and the Bonds conform as to legal matters to the
description of the terms thereof contained in the Registration
Statement and the Final Prospectus;
(vi) the Company has good and sufficient title to the real
property described in the Mortgage as subject to the lien thereof
(other than such real property as has been released from the lien of
the Mortgage in accordance with the terms thereof), subject only to
the lien of the Mortgage, Permitted Liens (as defined in the Mortgage)
and to Liens (as defined in the Mortgage) which have been granted by
the Company to persons prior to the date of the execution and delivery
of the Original Mortgage, and subject also, as to any property
acquired by the Company after the date of the execution and delivery
of the Original Mortgage, to vendors' Liens, purchase money mortgages
and other Liens thereon at the time of the acquisition thereof; and
the Mortgage constitutes a valid mortgage lien, subject only to the
aforesaid liens, on all real property and substantially all tangible
personal property owned by the Company at the date of the execution
and delivery of the Supplemental Indenture and used or to be used in
or in connection with the purchase, transmission, distribution or sale
of electric energy by the Company (except property expressly excluded
from the lien thereof) and except that (1) the provisions of the
Mortgage subjecting to the lien thereof after-acquired real property
of the Company in some cases may not be effective against creditors or
purchasers for value without notice whose rights to such property
attach prior to recording of a supplemental indenture or other
instrument specifically subjecting such property to the lien of the
Mortgage, (2) the provisions of the Mortgage subjecting after-acquired
property of the Company to the lien thereof may be affected by laws
relating to preferential transfers of property during certain periods
prior to commencement of bankruptcy, insolvency or similar proceedings
and (3) such counsel need express no opinion as to the title of the
Company to rights of way for its transmission and distribution
facilities and telephone lines;
(vii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document relating to the Company or any
of its subsidiaries or its or their property of a character required
to be described in the Registration Statement, or to be filed as an
exhibit thereto, which is not described in the Final Prospectus or
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filed as required; and the statements included or incorporated by
reference in the Final Prospectus insofar as such statements summarize
legal proceedings or material contracts or agreements relating to the
Company are fair summaries of such legal proceedings or material
contracts or agreements;
(viii) the Registration Statement and the Final Prospectus
(except as to the financial statements and other financial data
contained therein or incorporated by reference therein and as to any
information contained or incorporated by reference therein under the
heading "The Insurance Policy and the Insurer--Ambac Assurance
Corporation" as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements
of the Act and the Trust Indenture Act and the applicable
instructions, rules and regulations of the Commission thereunder or
pursuant to such instructions, rules and regulations are deemed to
have complied therewith; the documents filed by the Company
incorporated by reference in the Registration Statement and the Final
Prospectus (except as to the financial statements and other financial
data contained therein or incorporated by reference therein as to
which such counsel need express no opinion), comply as to form in all
material respects with the applicable requirements of the Exchange Act
and the applicable instructions, rules and regulations of the
Commission thereunder or pursuant to such instructions, rules and
regulations are deemed to have complied therewith; the Registration
Statement has become effective under the Act; any required filings of
the Basic Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, have been made in the manner
and within the time period required by Rule 424(b); and to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or threatened, and
(ix) such counsel has no reason to believe that the Registration
Statement, at the Effective Date or the date the Registration
Statement was last deemed amended, contained an untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Final Prospectus, as of its date and on the
Closing Date, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, that such counsel need not
express any belief as to (1) the financial statements and other
financial data contained in or incorporated by reference in the
Registration Statement and the Final Prospectus, (2) any information
contained in the Registration Statement and the Final Prospectus (or
any supplement thereto) that was furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto), (3) statements contained in
the Form T-1 filed as an exhibit to the Registration Statement, (4)
any information contained in the Final Prospectus specified to have
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been furnished or obtained from The Depository Trust Company or (5)
any information contained or incorporated by reference in the Final
Prospectus under the heading "The Insurance Policy and the
Insurer--Ambac Assurance Corporation";
(x) this Agreement has been duly authorized, executed and
delivered by the Company;
(xi) the Securities Certificate filed by the Company with the
Pennsylvania Public Utility Commission with respect to the Bonds has
been duly registered and is sufficient to authorize the issuance and
sale of the Bonds as contemplated by the Mortgage and this Agreement,
and no consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Bonds by the Underwriters in the manner
contemplated in this Agreement and in the Final Prospectus; and
(xii) none of the execution and delivery of the Mortgage, the
issue and sale of the Bonds, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under, the Restated Articles or By-Laws of the
Company, as amended, or the terms of any indenture, contract,
agreement or other obligation, condition, covenant or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or is bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree
known to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their
properties.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Pennsylvania or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters, (B) as to the qualification of the Mortgage under the
Trust Indenture Act, the compliance as to form of the Registration Statement and
the Final Prospectus with the requirements of the Act and the Trust Indenture
Act and the applicable instructions, rules and regulations thereunder, the
compliance by the Company with Rule 424(b) under the Act and the conformity of
the Mortgage and the Bonds with Rule 424(b) under the Act and the conformity of
the Mortgage and the Bonds with the respective descriptions thereof in the
Registration Statement and the Final Prospectus, upon the opinion of Xxxxxx Xxxx
& Priest LLP, special counsel to the Company, and (C) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
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(c) The Representatives shall have received from Xxxxxx Xxxx & Priest
LLP, counsel to the Company, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, (1) to the effect that (A) the
Bonds conform as to legal matters in all material respects to the
description thereof contained in the Final Prospectus and (B) the Company
is not and, after giving effect to the offering and sale of the Bonds and
the application of the proceeds thereof as described in the Final
Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended; and (2) with respect to the
matters enumerated in paragraphs (iv) (provided that, as to the statements
in the Final Prospectus under "Supplemental Description of the
Bonds--Security" and "Description of the Bonds--Security--Lien of the
Mortgage", such counsel need not opine other than under the last clause of
such paragraph), (v), (viii) (provided that such counsel need not express
any opinion as to the documents incorporated by reference in the
Registration Statement and the Final Prospectus or as to any information
under the captions "Capitalization" or "Selected Financial Information"),
(x) and (xii) (to the extent such paragraph (xii) opines as to the Restated
Articles of Incorporation, as amended, and By-Laws of the Company) of
subsection (b) of this Section 6 as the opinion of Xxxxxxx X. Xxxxxxx, Esq.
In said opinion, such counsel may rely on the opinion of Xxxxxxx X.
Xxxxxxx, Esq., as to all matters of the law of the Commonwealth of
Pennsylvania.
(d) The Representatives shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Bonds, the Mortgage, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Representatives may reasonably
require, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial, accounting officer, Vice President
with responsibility for financial matters or Treasurer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectus,
any supplements to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and the Securities Certificate filed by the Company with
the Pennsylvania Public Utility Commission to permit the issue and
sale of the Bonds has been registered and is in full force and effect;
11
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto); and
(iv) no proceeding for the dissolution, merger, consolidation or
liquidation of the Company or for the sale of all or substantially all
of its assets is pending, or to the best of the signer's knowledge,
threatened, and no such proceeding is contemplated by the Company,
other than as described in the Registration Statement and the Final
Prospectus or the documents incorporated therein by reference.
(f) The Company shall have requested and caused Deloitte & Touche LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the unaudited interim financial information of
the Company, if any, for the period ended and as of the date of the
Company's most recent unaudited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus in accordance with Statement on Auditing Standards No. 71, and
stating in effect, except as provided in Schedule I hereto, that:
(i) in their opinion the Company's audited financial statements
and financial statement schedules included or incorporated by
reference in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements, if any, made available by the Company and its
subsidiaries, limited review, in accordance with standards established
under Statement on Auditing Standards No. 71, of the unaudited interim
financial information incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and audit committee of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
12
subsidiaries as to transactions and events subsequent to December 31,
2001, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements of the Company
included or incorporated by reference in the Registration
Statement and the Final Prospectus do not comply as to form in
all material respects with applicable accounting requirements of
the Act and with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to December 31,
2001, there were any changes, at a specified date not more than
five days prior to the date of the letter, in the capital stock,
short-term indebtedness or long-term debt of the Company and its
subsidiaries as compared with the amounts shown on December 31,
2001, or for the period from January 1, 2002 to such specified
date, there were any decreases, as compared with the
corresponding period in the preceding year; in electric operating
revenues, operating income, income before interest charges, net
income, or the ratio of earnings to fixed charges of the Company
and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the information relating to the Company included or
incorporated by reference in the Registration Statement and Final
Prospectus in response to Regulation S-K, Item 301 (Selected
Financial Data) and Item 302 (Supplementary Financial
Information), if any, is not in conformity with the applicable
disclosure requirements of Regulation S-K; or
(4) the amounts included in any unaudited "capsule"
information relating to the Company included or incorporated by
reference in the Registration Statement and the Final Prospectus
do not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not determined
on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated by reference in the Registration
Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
13
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus,
including the information set forth under the captions
"Capitalization" "Selected Financial Information" in the Final
Prospectus, the information included or incorporated by reference in
Items 1, 2, 6 and 7 of the Company's Annual Report on Form 10-K,
incorporated by reference in the Registration Statement and the Final
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q, incorporated by reference in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a change, in or affecting the
condition (financial or otherwise), business or properties of the Insurer
or of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Bonds as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) At the Closing Date, the Financial Guaranty Insurance Policy shall
have been duly authorized, executed and delivered by the Insurer to the
insurance trustee named therein and shall be in full force and effect and
the Representatives shall have received an opinion of counsel for the
Insurer, dated the Closing Date, and a certificate of an officer of the
Insurer, dated the Closing Date, in each case, covering such matters as the
Representatives may reasonably require. The Company will pay the premium
with respect to, and any other fees and expenses in connection with, the
Financial Guaranty Insurance Policy.
14
(j) Prior to the Closing Date, the Representatives shall have received
from the Insurer evidence reasonably satisfactory to the Representatives
that the Bonds have received ratings of Aaa from Xxxxx'x Investors Service,
Inc. and AAA from Standard & Poor's Ratings Services.
(k) As of the Closing Date, the representations and warranties of the
Insurer contained in the Indemnification Agreement dated April 24, 2002
between the Insurer and the Representatives shall be true and correct in
all material respects as of the Closing Date (except to the extent that
they relate solely to an earlier or later date, in which case they shall be
true and correct as of such earlier or later date) and the Representatives
shall have received a certificate of the President or a Vice President of
the Insurer, dated as of the Closing Date, to such effect.
(l) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxxx Xxxx & Priest LLP, counsel for the Company, at
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Bonds
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through
Xxxxxxx Xxxxx Xxxxxx Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Bonds.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
15
the Bonds as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them, as incurred, in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Insurer or by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein
and (ii) such indemnity with respect to the Final Prospectus or any Preliminary
Final Prospectus shall not inure to the benefit of any of the Underwriters (or
any person controlling any of the Underwriters) from whom the person asserting
any such loss, claim, damage or liability purchased the Bonds which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such Bonds
to such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Final
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as supplemented); provided that, copies of
the Final Prospectus (or the Final Prospectus as supplemented) were sufficiently
and timely provided to you. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Bonds and under the heading "Underwriting"
or "Plan of Distribution", (i) the list of Underwriters and their respective
participation in the sale of the Bonds, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
16
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding. An indemnifying party will not be
liable for any settlement entered into by any indemnified party without the
indemnifying party's consent, but if settled with its written consent or if
there is a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Bonds;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Bonds) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Bonds purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
17
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Bonds agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of Bonds
set forth opposite their names in Schedule II hereto bears to the aggregate
principal amount of Bonds set forth opposite the names of all the remaining
Underwriters) the Bonds which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the aggregate
principal amount of Bonds which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate principal amount
of Bonds set forth in Schedule II hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Bonds, and if such nondefaulting Underwriters do not purchase all
the Bonds, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Bonds, if at any time prior to such time (i)
trading in the Common Stock of the Company or DQE, Inc. shall have been
18
suspended by the Commission or trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Bonds as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Bonds. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney
Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
(000) 000-0000 and confirmed to it at 000 Xxxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, attention of the Treasurer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
19
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Pittsburgh,
Pennsylvania.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Bonds that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Bonds and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
"Rule 415", "Rule 424" and "Rule 462" refer to such rules under the
Act.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Duquesne Light Company
By:
---------------------------
Name:
Title:
21
The foregoing Agreement
is hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-----------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
22
SCHEDULE I
Underwriting Agreement dated April 24, 2002
Registration Statement No. 333-72408
Representative(s): Xxxxxxx Xxxxx Barney Inc.
UBS Warburg LLC
First Union Securities, Inc.
Xxxxxx Brothers Inc.
Title, Purchase Price and Description of Bonds:
Title: First Mortgage Bonds, Series P
Principal amount: $100,000,000
Purchase price (include accrued
interest or amortization, if
any): $96,850,000
Sinking fund provisions: None
Redemption provisions: Optional Redemption:
The Company may redeem the Bonds, in whole or in
part, at any time on or after April 30, 2007 at a
redemption price equal to 100% of the principal
amount redeemed plus accrued and unpaid interest
to the redemption date.
Mandatory Redemption:
In the event that (1) the Company reorganizes, or
otherwise transfers a substantial portion of its
assets, and (2) that reorganization results in the
Company no longer being a regulated distribution
company, and (3) the PINES* "Pines(R)" is a
registered service xxxx of Xxxxxxx Xxxxx Xxxxxx
Inc. and the Company's obligations under the
Mortgage are not assumed by, and do not become the
direct and primary obligations of, a regulated
company engaged in the distribution of
electricity, unless the Insurer consents to such
reorganization or transfer, the Company will
redeem the PINES, in whole, at a redemption price
equal to the principal amount of the PINES plus
accrued interest thereon to but excluding the
redemption date. If such reorganization or
transfer occurs on or prior to March 1, 2007, the
Company will redeem the PINES on April 30, 2007,
* "Pines(R)" is a registered service xxxx of Xxxxxxx Xxxxx Xxxxxx Inc.
otherwise, the Company will redeem the PINES
within 60 days of the reorganization or transfer,
but in no event earlier than April 30, 2007.
Other provisions: Not applicable
Closing Date, Time and Location: April 30, 2002 at 10:00 a.m. at Xxxxxx
Xxxx & Priest LLP, 00 Xxxx 00x Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Type of Offering: Delayed
Date referred to in Section 5(f) after
which the Company may offer or sell
debt securities issued or guaranteed
by the Company without the consent
of the Representative(s): April 30, 2002
Modification of items to be covered by
the letter from Deloitte & Touche LLP
delivered pursuant to Section 6(e) at
the Execution Time: Not applicable
2
SCHEDULE II
PRINCIPAL AMOUNT
OF BONDS
UNDERWRITERS TO BE PURCHASED
------------ ---------------
Xxxxxxx Xxxxx Xxxxxx Inc.................................... $24,250,000
UBS Warburg LLC............................................. $24,250,000
First Union Securities, Inc................................. $24,250,000
Xxxxxx Brothers Inc......................................... $10,000,000
X.X. Xxxxxxx & Sons, Inc.................................... $875,000
ABN AMRO Incorporated....................................... $875,000
Bear, Xxxxxxx & Co. Inc..................................... $875,000
Deutsche Banc Alex. Xxxxx Inc............................... $875,000
Xxxxxxx, Sachs & Co......................................... $875,000
H&R BLOCK Financial Advisors, Inc........................... $875,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC................................. $875,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated........................ $875,000
McDonald Investments Inc., a KeyCorp Company................ $875,000
Prudential Securities Incorporated.......................... $875,000
Xxxxxxx Xxxxx & Associates, Inc............................. $875,000
Xxxx Xxxxxxxx Incorporation................................. $875,000
U.S. Bancorp Xxxxx Xxxxxxx Inc.............................. $875,000
Xxxxx Fargo Xxx Xxxxxx LLC.................................. $875,000
Banc One Capital Markets, Inc............................... $250,000
BNY Capital Markets, Inc.................................... $250,000
Xxxxxxxxxx & Co. Inc........................................ $250,000
Fifth Third Securities, Inc................................. $250,000
Gruntal & Co., L.L.C........................................ $250,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc............................ $250,000
X.X. Xxxx & Company......................................... $250,000
Mizuho International plc.................................... $250,000
Xxxxxx Xxxxxx & Company, Inc................................ $250,000
NatCity Investments, Inc.................................... $250,000
Xxxxxx X. Xxxxx & Co. Incorporated.......................... $250,000
Xxxx, Xxxx & Co. LLC........................................ $250,000
Xxxxxxx Xxxxxx & Co., Inc................................... $250,000
Southwest Securities, Inc................................... $250,000
Xxxxxx, Xxxxxxxx & Company Incorporated..................... $250,000
SMBC Securities, Inc........................................ $250,000
SunTrust Capital Markets, Inc............................... $250,000
Tokyo-Mitsubishi International plc.......................... $250,000
Wedbush Xxxxxx Securities Inc............................... $250,000
Xxxxxxx Xxxxx & Co.......................................... $250,000
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Total.................................................. $100,000,000
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