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EX-10.2 - EXHIBIT 10.2 - PPL Corp | c15794exv10w2.htm |
EX-10.3 - EXHIBIT 10.3 - PPL Corp | c15794exv10w3.htm |
8-K - FORM 8-K - PPL Corp | c15794e8vk.htm |
Exhibit 10.1
PPL WEM HOLDINGS PLC
$960,000,000
$460,000,000 3.900% Senior Notes Due 2016
$500,000,000 5.375% Senior Notes Due 2021
$500,000,000 5.375% Senior Notes Due 2021
PURCHASE AGREEMENT
April 18, 2011
Barclays Capital Inc.
745 Seventh Avenue
New York, NY 10019
745 Seventh Avenue
New York, NY 10019
Credit Suisse Securities (USA) LLC
11 Madison Avenue
New York, NY 10010-3629
11 Madison Avenue
New York, NY 10010-3629
Merrill Lynch, Pierce, Fenner & Smith Incorporated
One Bryant Park
New York, NY 10036
One Bryant Park
New York, NY 10036
RBS Securities Inc.
600 Washington Boulevard
Stamford, CT 06901
600 Washington Boulevard
Stamford, CT 06901
As Representatives of the several Purchasers listed on Schedule A hereto
Ladies and Gentlemen:
1. Introductory. PPL WEM Holdings plc, a public limited company organized under the laws of
England and Wales (the Company), agrees with the several purchasers named in Schedule A
hereto (the Purchasers), for whom you are acting as representatives (the Representatives),
subject to the terms and conditions stated herein, to issue and sell to the several Purchasers
U.S.$460,000,000 aggregate principal amount of its 3.900% Senior Notes due 2016 (the 2016 Notes)
and U.S.$500,000,000 aggregate principal amount of its 5.375% Senior Notes due 2021 (the 2021
Notes and, together with the 2016 Notes, the Offered Securities), to be issued under an
indenture, to be dated as of or before the Closing Date (as defined below), as supplemented by
Supplemental Indenture No. 1, to be dated as of or before the Closing Date (the Indenture),
between the Company and The Bank of New York Mellon, as trustee (the Trustee).
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents and warrants to,
and agrees with, the several Purchasers that:
(a) Offering Memoranda; Certain Defined Terms. The Company has prepared or will
prepare a Preliminary Offering Memorandum and a Final Offering Memorandum (each as defined
below).
For purposes of this Agreement:
Applicable Time means 5:30 pm (New York time) on the date of this Agreement.
Closing Date has the meaning set forth in Section 3 hereof.
Commission means the United States Securities and Exchange Commission.
Exchange Act means the United States Securities Exchange Act of 1934, as amended.
Final Offering Memorandum means the final offering memorandum relating to the
Offered Securities to be offered by the Purchasers that discloses the offering price and other
final terms of the Offered Securities and is dated as of the date of this Agreement (even if
finalized and issued subsequent to the date of this Agreement).
Free Writing Communication means a written communication (as such term is defined in Rule
405 of the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the Preliminary Offering Memorandum or the
Final Offering Memorandum.
General Disclosure Package means the Preliminary Offering Memorandum together with any
Issuer Free Writing Communication existing at the Applicable Time and the information in which is
intended for general distribution to prospective investors, as evidenced by its being specified as
included in the General Disclosure Package in Schedule B hereto.
Issuer Free Writing Communication means a Free Writing Communication prepared by or on
behalf of the Company, used or referred to by the Company or containing a description of the final
terms of the Offered Securities or of their offering, in the form retained in the Companys
records.
Preliminary Offering Memorandum means the preliminary offering memorandum, dated
April 18, 2011, relating to the Offered Securities to be offered by the Purchasers.
Rules and Regulations means the rules and regulations of the Commission.
Securities Act means the United States Securities Act of 1933, as amended.
Securities Laws means, collectively, the Securities Act, the Exchange Act and the Rules and
Regulations.
Supplemental Marketing Material means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule B hereto. Supplemental
Marketing Materials include, but are not limited to, any Issuer Free Writing Communication listed
on Schedule C hereto.
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Unless otherwise specified, a reference to a rule is to the indicated rule under the
Securities Act.
(b) Disclosure. As of the date thereof and the Closing Date, the Final Offering
Memorandum does not and will not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. At the Applicable Time and as
of the Closing Date, neither (i) the General Disclosure Package, nor (ii) any individual
Supplemental Marketing Material, when considered together with the General Disclosure
Package, included, or will include, any untrue statement of a material fact or omitted, or
will omit, to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding two sentences do not apply to statements in or omissions from the Preliminary
Offering Memorandum, the Final Offering Memorandum, the General Disclosure Package or any
Supplemental Marketing Material based upon written information furnished to the Company by
any Purchaser through the Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such in Section 8(b) hereof.
(c) Good Standing of the Company. The Company has been duly organized, is validly
existing as a public limited company under the laws of England and Wales, has the power and
authority to own its property and to conduct its business as described in the General
Disclosure Package and the Final Offering Memorandum and does not transact business in any
jurisdiction other than the United Kingdom.
(d) Subsidiaries. Each of Western Power Distribution (East Midlands) plc (WPD East
Midlands) and Western Power Distribution (West Midlands) plc (WPD West Midlands) has been
duly incorporated and is existing under the laws of the jurisdiction of its incorporation,
with power and authority to own its properties and conduct its business as described in the
General Disclosure Package and the Final Offering Memorandum and does not transact business
in any jurisdiction other than in the United Kingdom; all of the issued and outstanding
capital stock of WPD East Midlands and WPD West Midlands has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock of WPD East
Midlands and WPD West Midlands, directly or through subsidiaries, is owned free from liens,
encumbrances and defects; except as set out on Schedule D hereto, the Company has no direct
and indirect subsidiaries.
(e) Financial Statements. The audited combined financial statements for the entities
set out on Schedule E hereto (collectively, the WPD Midlands Group), together with the
related notes and schedules, set forth in the General Disclosure Package and the Final
Offering Memorandum have been prepared in all material respects in accordance with generally
accepted accounting principles in the United Kingdom (UK GAAP) consistently applied
throughout the periods involved, except as disclosed therein. The assumptions used in
preparing the pro forma financial statements included in the General Disclosure Package and
the Final Offering Memorandum provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the pro forma
columns therein reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(f) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
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(g) Securities. The Offered Securities have been duly authorized by the Company and,
at the Closing Date, will have been duly executed by the Company; when the Offered
Securities
have been (A) authenticated and delivered by the Trustee in the manner provided for in
the Indenture and (B) issued and delivered by the Company against payment of the
consideration therefor as provided in this Agreement, the Offered Securities will constitute
valid and binding obligations of the Company, enforceable in accordance with their terms,
except to the extent limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or moratorium laws or by other laws now or hereafter in effect relating to or
affecting the enforcement of mortgagees and other creditors rights and by general
equitable principles (regardless of whether considered in a proceeding in equity or at law),
such laws and principles of equity being hereinafter called, collectively the
Enforceability Exceptions; the Offered Securities will be in the form established pursuant
to, and will be entitled to the benefits of, the Indenture; and the Offered Securities will
conform in all material respects to the statements relating thereto contained in the General
Disclosure Package and the Final Offering Memorandum.
(h) Indenture. The Indenture has been duly authorized by the Company and at the
Closing Date, the Indenture will have been duly executed and delivered by the Company, and
assuming due authorization, execution and delivery of the Indenture by the other parties
thereto, the Indenture will constitute a valid and legally binding obligation of the Company
enforceable in accordance with its terms except to the extent limited by the Enforceability
Exceptions and the Indenture will conform in all material respects to the statements
relating thereto contained in the General Disclosure Package and the Final Offering
Memorandum.
(i) Investment Company Act. The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package and the Final Offering Memorandum, will not be
an investment company as such term is defined in the United States Investment Company Act
of 1940, as amended.
(j) Absence of Manipulation; General Solicitation. Neither the Company nor any
affiliate (as defined in Rule 501(b) of Regulation D under the Securities Act, an
Affiliate) of the Company has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as defined in
the Securities Act) which is or will be integrated with the sale of the Offered Securities
in a manner that would require the registration under the Securities Act of the Offered
Securities or (ii) engaged in any form of general solicitation or general advertising in
connection with the offering of the Offered Securities (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act.
(k) No Directed Selling Efforts. None of the Company, its Affiliates or any person
acting on its or their behalf has engaged or will engage in any directed selling efforts
(within the meaning of Regulation S) with respect to the Offered Securities and the Company
and its Affiliates and any person acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S, except no representation,
warranty or agreement is made by the Company in this paragraph with respect to the
Purchasers.
(l) No Registration. Assuming the accuracy of the representations and warranties of
the Purchasers contained in Section 4 below and their compliance with their agreements set
forth therein, it is not necessary in connection with the offer, sale and delivery of the
Offered Securities to the Purchasers in the manner contemplated by this Agreement to
register the Offered Securities under the Securities Act or to qualify the Indenture under
the United States Trust Indenture Act of 1939, as amended.
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(m) Rule 144A. The Offered Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(n) Absence of Further Requirements. No consent, approval, authorization, order,
registration or qualification of or with any United States federal, state or local, or
United Kingdom governmental agency or body or any United States federal, state or local, or
United Kingdom, court is required to be obtained by the Company for the consummation of the
transactions contemplated by this Agreement and the Indenture in connection with the
offering, issuance and sale of the Offered Securities by the Company, or the performance by
the Company of its obligations hereunder or thereunder, except for (i) such as
have been obtained, (ii) such as may be required under the Blue Sky laws of any jurisdiction
or (iii) as required under the rules and regulations of the Luxembourg Stock Exchange (the
LSE) with respect to the listing thereon of the Offered Securities.
(o) Absence of Defaults and Conflicts Resulting from Transaction. Neither the
execution and delivery of this Agreement nor the transactions contemplated by this Agreement
and the Indenture (nor any supplements thereto) in connection with the offering, issuance
and sale of the Offered Securities, will violate or breach, or constitute a default under,
(i) any law or any regulation, order, writ, injunction or decree of any court or
governmental instrumentality applicable to the Company, (ii) any of the terms and provisions
of the memorandum of association or public limited company articles of association of the
Company or (iii) any agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it is bound, including but not limited to the Electricity
Distribution License of WPD East Midlands and WPD West Midlands, respectively, except in the
case of clauses (i) and (iii) above, for such violations, breaches or defaults that would
not individually or in the aggregate have a material adverse effect on the ability of the
Company to perform its obligations hereunder.
(p) Possession of Licenses and Permits. The Company and its subsidiaries possess, and
are in compliance with the terms of all licenses (Licenses) required to the conduct of the
business now conducted or proposed in the General Disclosure Package and the Final Offering
Memorandum to be conducted by them, except where the failure to possess such Licenses would
not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
To the knowledge of the Company, after having made reasonable inquiry, neither the Company
nor its subsidiaries have received any statutory notices of proposed license revocation or
modification of any Licenses that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(q) Internal Controls. The Company maintains systems of internal accounting controls
sufficient to provide reasonable assurance that transactions are executed in accordance with
managements authorizations and transactions are recorded as necessary to permit preparation
of financial statements.
(r) No Material Adverse Change in Business. Since the respective dates as of which
information is given in the General Disclosure Package and the Final Offering Memorandum,
except as otherwise stated therein or contemplated thereby, there has been no material
adverse change, or event or occurrence that would result in a material adverse change in the
financial position or results of operations of the Company and its subsidiaries taken as a
whole.
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(s) Ratings. No nationally recognized statistical rating organization as such term
is defined for purposes of Section 3(a)(62) under the Exchange Act (i) has imposed (or has
informed the Company or its subsidiaries that it is considering imposing) any condition
(financial or otherwise) on the Companys or its applicable subsidiaries retaining any
rating assigned to the Company or its applicable subsidiaries or any securities of the
Company or its applicable subsidiaries that are so rated or (ii) has indicated to the
Company or its subsidiaries that it is considering any of the actions described in Section
7(b)(ii) hereof.
(t) Unlawful Use of Funds. Neither the Company nor any of its subsidiaries nor any
director, officer, agent, employee or other person associated with or acting on behalf of
the Company or any of its subsidiaries has to the best of its knowledge (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity, (ii) made any direct or indirect unlawful payment to any
government official or employee from corporate funds, (iii) violated or is in violation of
any provision of the Prevention of Corruption Act 1906 and the Prevention of Corruption Act
1916, as amended, or similar law of any other relevant jurisdiction where the Company
conducts its business or (iv) made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(u) Compliance with Anti-Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance in all material respects
with the money laundering statutes of the United Kingdom and the European Union, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines
issued, administered or enforced by any governmental agency (collectively, the Money
Laundering Laws), and no 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
with respect to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(v) No Sanctions. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the United States Treasury Department (OFAC); and the
Company will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds, to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(w) Use of Proceeds. The Company will use the net proceeds received in connection
with the sale of the Offered Securities pursuant to this Agreement in the manner described
in the Use of Proceeds section of the General Disclosure Package.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 99.295% of the principal amount of
the 2016 Notes and 99.325% of the principal amount of the 2021 Notes, the respective aggregate
principal amounts of the 2016 Notes and the 2021 Notes set forth opposite the names of the several
Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder and to be offered and sold by each Purchaser in reliance on
Rule
144A (the 144A Securities) in the form of one or more permanent global securities in definitive
form without interest coupons (the Restricted Global Securities) deposited with the Trustee as
custodian for DTC and registered in the name of Cede & Co., as nominee for the Depository Trust
Company (DTC).
The Company will deliver against payment of the purchase price the Offered Securities to be offered
and sold by the Purchasers in reliance on Regulation S (the Regulation S Securities) in the form
of one or more global Securities in registered form without interest coupons (the Regulation S
Global Securities) which will be deposited with the Trustee as custodian for DTC for the
respective accounts of DTC participants, including the Euroclear System (Euroclear), and
Clearstream Banking, société anonyme (Clearstream, Luxembourg), and registered in the name of
Cede & Co., as nominee for DTC. The Restricted Global Securities and the Regulation S Global
Securities shall be assigned separate CUSIP numbers. The Restricted Global Securities shall include
the legend regarding restrictions on transfer set forth under Transfer Restrictions in the Final
Offering Memorandum. Until the termination of the distribution compliance period (as defined in
Regulation S) with respect to the offering of the Offered Securities, interests in the Regulation S
Global Securities may only be held by the DTC participants for Euroclear and Clearstream,
Luxembourg. Interests in the Restricted Global Securities and the Regulation S Global Securities
will be held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC, as the case
may be, except in the limited circumstances described in the Final Offering Memorandum.
Payment for the 144A Securities and the Regulation S Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company at the office of Davis Polk & Wardwell LLP, 99
Gresham Street, London, EC2V 7NG England at 9:00 A.M. (New York time) on April 21, 2011, or at such
other time not later than seven full business days thereafter as the Representatives and the
Company determine, such time being herein referred to as the Closing Date, against delivery to
the Trustee as custodian for DTC of (i) the Restricted Global Securities representing all of the
144A Securities and (ii) the Regulation S Global Securities representing all of the Regulation S
Securities for the respective accounts of the DTC participants for Euroclear and Clearstream,
Luxembourg. The Regulation S Global Securities and the Restricted Global Securities will be made
available for checking at the above office of Simpson Thacher & Bartlett LLP at least 24 hours
prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each Purchaser severally
represents and warrants to the Company that it is a qualified institutional buyer (as defined in
Rule 144A under the Securities Act).
(b) Each Purchaser severally acknowledges that the Offered Securities have not been
registered under the Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in accordance with Regulation S
or pursuant to an exemption from the registration requirements of the Securities Act. Each
Purchaser severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly,
neither such Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of Regulation S.
Each Purchaser severally agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other remuneration
that purchases the Offered Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
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The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the Securities Act) and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the date of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meanings given to them by Regulation S.
Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally represents, warrants and agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for any such arrangements with the
other Purchasers or affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally represents, warrants and agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of Rule 502(c) or
in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act, including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or broadcast over
television or radio, or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser severally agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either
with the confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Offered Securities has been made in reliance
upon the exemption from the registration requirements of the Securities Act provided by Rule
144A.
(e) Each Purchaser severally represents, warrants and agrees that it has not solicited
offers for, or offered or sold, and will not solicit offers for, or offer or sell, the
Offered Securities in connection with the offering and resale of the Offered Securities
contemplated by this Agreement, except within the United States to persons whom it
reasonably believes to be qualified institutional buyers in transactions pursuant to Rule
144A.
(f) In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a Relevant Member State), each Purchaser
severally represents, warrants and agrees that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the Relevant
Implementation Date) it has not made and will not make an offer of Offered Securities to
the public in that Relevant Member State other than: (i) to any legal entity which is a
qualified investor as defined in the Prospectus Directive; (ii) to fewer than 100 or, if the
Relevant Member State has implemented the relevant provision of the 2010 PD Amending
Directive, 150, natural or legal persons (other than qualified investors as defined in the
Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the
prior consent of the relevant Purchaser or Purchasers nominated by the Company for any such
offer; (iii) in any other circumstances falling within Article 3(2) of the Prospectus
Directive. For the purposes of this Section 4(f), the
expression an offer of Offered Securities to the public in relation to any Offered
Securities in any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the notes to be offered so as to
enable an investor to decide to purchase or subscribe the notes, as the same may be varied
in that Member State by any measure implementing the Prospectus Directive in that Member
State, the expression Prospectus Directive means Directive 2003/71/EC (and amendments
thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant
Member State), and includes any relevant implementing measure in the Relevant Member State
and the expression 2010 PD Amending Directive means Directive 2010/73/EU.
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(g) Each Purchaser severally represents, warrants and agrees that (i) it has only
communicated or caused to be communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the U.K. Financial Services and Markets Act 2000, the FSMA)
received by it in connection with the issue or sale of the Offered Securities in
circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (ii) it
has complied and will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the Offered Securities in, from or otherwise involving
the United Kingdom.
5. Certain Agreements of the Company. The Company agrees with the several Purchasers that:
(a) It will furnish to each of the Purchasers, without charge, copies of the
Preliminary Offering Memorandum, each other document comprising a part of the General
Disclosure Package, the Final Offering Memorandum, all amendments and supplements to such
documents and any supplements and amendments thereto as you may reasonably request.
(b) Before amending or supplementing the Preliminary Offering Memorandum, any component
of the General Disclosure Package or the Final Offering Memorandum, to furnish to the
Purchasers a copy of each such proposed amendment or supplement and not to use any such
proposed amendment or supplement to which the Purchasers reasonably object in writing.
(c) If, during such period after the date hereof and prior to the date on which all of
the Offered Securities shall have been sold by the Purchasers, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the General
Disclosure Package or the Final Offering Memorandum in order to make the statements therein,
in the light of the circumstances when the General Disclosure Package or the Final Offering
Memorandum is delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the General Disclosure Package or the Final Offering Memorandum to comply with
applicable law, forthwith to prepare and furnish, at its own expense, to the Purchasers,
either amendments or supplements to the General Disclosure Package or the Final Offering
Memorandum so that the statements in the General Disclosure Package or Final Offering
Memorandum, as applicable, as so amended or supplemented will not, in the light of the
circumstances when the General Disclosure Package or the Final Offering Memorandum is
delivered to a purchaser, be misleading or so that the General Disclosure Package or Final
Offering Memorandum, as applicable, as amended or supplemented, will comply with applicable
law; provided that the expense of preparing and furnishing any such amendment or supplement
(i) that is necessary in connection with such a delivery of the Final Offering Memorandum
more than nine months after the date of this Agreement or (ii) that relates solely to the
activities of any Purchaser shall be borne by the Purchaser or Purchasers or the dealer or
dealers requiring the same; and provided further that you shall, upon inquiry by the
Company, advise the Company whether or not any Purchaser or dealer which shall have been
selected by you retains any unsold Offered Securities and, for the purposes of this
subsection (c), the Company shall be entitled to assume that the distribution of the Offered
Securities has been completed when they are advised by you that no Purchaser or such dealer
retains any Offered Securities.
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(d) It will endeavor to, in cooperation with the Purchasers, qualify the Offered
Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Purchasers shall reasonably request; provided, however, that the Company shall not be
required to qualify to do business as a foreign corporation or as a securities dealer, to
file a general consent to service of process in any jurisdiction in which it is not so
qualified, to subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject or to meet any requirement in connection with this
subsection (d) reasonably deemed by the Company to be unduly burdensome.
(e) To use its reasonable efforts to cause each series of the Offered Securities to be
listed on the LSE for admission to trading on the Euro MTF Market of the LSE and if at any
time following the listing of either series of the Offered Securities on the LSE, such
securities cease to be so listed, to use its reasonable efforts to list such Offered
Securities on another such recognized stock exchange reasonably satisfactory to the
Purchasers.
(f) To pay or bear (i) all expenses in connection with the matters herein required to
be performed by the Company and under the Indenture, including all expenses (except as
provided in Section 5(c) above) in connection with the preparation of the Preliminary
Offering Memorandum and the Final Offering Memorandum, and any amendment or supplement
thereto, and the furnishing of copies thereof to the Purchasers, and all audits, statements
or reports in connection therewith, and all expenses in connection with the issue and
delivery of the Offered Securities to the Purchasers, any fees and expenses relating to the
eligibility and issuance of the Offered Securities in book-entry form and the cost of
obtaining CUSIP numbers or other identification numbers for the Offered Securities, all
taxes payable (not including any transfer taxes) upon the original issue of the Offered
Securities and their sale to the Purchasers; (ii) all expenses in connection with the
printing, reproduction and delivery of this Agreement and, except as provided in Section
5(c) above, the printing, reproduction and delivery of the Preliminary Offering Memorandum,
the Final Offering Memorandum, the Indenture and any amendments or supplements thereto, and
any other documents relating to the issuance, offer, sale and delivery of the Offered
Securities; (iii) any and all fees payable in connection with the rating of the Offered
Securities; (iv) the Companys costs and expenses relating to investor presentations on any
road show undertaken in connection with the marketing of the offering of the Offered
Securities, including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such consultants, and
the Companys portion of the costs of any aircraft chartered in connection with the road
show; (v) the qualification of the Offered Securities under the securities laws or Blue Sky
laws of such jurisdictions as the Purchasers shall reasonably request in accordance with the
provisions of Section 5(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Purchasers in connection with any Blue Sky or legal
investment survey; and (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Offered Securities.
- 10 -
(g) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the Securities Act)
that would be integrated with the sale of the Offered Securities in a manner which would
require the registration under the Securities Act of the Offered Securities.
(h) The Company will not solicit any offer to buy or offer or sell the Offered
Securities by means of any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(i) None of the Company, its Affiliates or any person acting on its or their behalf
(other than the Purchasers) will engage in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Offered Securities, and the Company and its
Affiliates and each person acting on its or their behalf (other than the Purchasers) will
comply with the offering restrictions requirement of Regulation S.
(j) While any of the Offered Securities remain restricted securities within the
meaning of the Securities Act, the Company will make available, upon request, to any seller
of such Offered Securities the information specified in Rule 144A(d)( 4) under the
Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange
Act or is exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act.
(k) During the period of one year after the Closing Date the Company will not, and will
not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to resell
any of the Offered Securities which constitute restricted securities under Rule 144 that
have been reacquired by any of them.
(l) The Company will indemnify and hold harmless the Purchasers against any
documentary, stamp or similar issuance tax, including any interest and penalties, on the
creation, issuance and sale of the Offered Securities and on the execution and delivery of
this Agreement. In addition, all payments to be made by the Company hereunder to any
Purchaser shall be made without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever imposed by the United Kingdom or any
governmental agency or body or other political subdivision or taxing authority thereof or
therein (the Taxing Jurisdiction and such taxes, duties or governmental charges
collectively Taxes) unless the Company is compelled by law to deduct or withhold such
Taxes. In that event, the Company shall pay such additional amounts to the Purchaser as may
be necessary in order that the net amounts received after such withholding or deduction
shall equal the amounts that would have been received if no withholding or deduction had
been made, except to the extent that such Taxes were imposed due to (i) such Purchaser or
any agent thereof having any present or former connection with the Taxing Jurisdiction other
than solely as a result of (A) the execution and delivery of, or performance of, its
obligations under this Agreement, (B) receiving or paying for the Offered Securities or (C)
receiving any payments hereunder or (ii) the failure of the Purchaser or its agents, as the
case may be, upon the reasonable request of the Company, to provide within a reasonable
period any form, certificate, document, or other information that is required under the law
of the applicable Taxing Jurisdiction in order to reduce or eliminate such deduction or
withholding of Taxes.
- 11 -
6. Free Writing Communications. (a) The Company represents and agrees that, unless it obtains
the prior consent of the Representatives, and each Purchaser represents and agrees that, unless it
obtains
the prior consent of the Company and the Representatives, it has not made and will not make any
offer relating to the Offered Securities that would constitute an Issuer Free Writing
Communication, other than any Supplemental Marketing Material listed on Schedule C hereto.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that contains only (A) information describing the preliminary terms of the
Offered Securities or their offering or (B) information that describes the final terms of
the Offered Securities or their offering and that is included in or is subsequently included
in the Final Offering Memorandum.
7. Conditions of the Obligations of the Purchasers. The obligations of the several
Purchasers to purchase and pay for the Offered Securities will be subject to the accuracy of the
representations and warranties of the Company herein (as though made on the Closing Date), to the
accuracy of the statements of officers of the Company made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) Accountants Comfort Letter. The Purchasers shall have received letters, in form
and substance satisfactory to you, dated, respectively, the date hereof and the Closing
Date, of each of PricewaterhouseCoopers LLP and Ernst & Young LLP confirming that they are
independent accountants within the applicable rules and regulations adopted by the American
Institute of Certified Public Accountants and containing statements and information of the
type ordinarily included in accountants comfort letters.
(b) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) except as stated in the General Disclosure
Package or the Final Offering Memorandum, any material adverse change, or event or
occurrence that would result in a material adverse change, in the financial position or
results of operations of the Company and its subsidiaries taken as a whole (a Material
Adverse Change) which, in the judgment of the Representatives, is material and adverse and
makes it impractical and inadvisable to market the Offered Securities, (ii) any decrease in
the ratings of the Offered Securities by any nationally recognized statistical rating
organization, as such term is defined for purposes of Section 3(a)(62) under the Exchange
Act, or any such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Offered Securities, (iii)
any suspension of or material limitation of trading generally on the New York Stock
Exchange, the Nasdaq Global Market or the London Stock Exchange, (iv) any suspension of
trading of any securities of the Company on any exchange or in any over-the-counter market,
(v) any general moratorium on commercial banking activities declared by U.S. Federal, New
York State or United Kingdom authorities or (vi) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in the reasonable
judgment of the Representatives, the effect of any such outbreak, escalation declaration,
calamity or emergency makes it impractical and inadvisable to proceed with completion of the
sale of and payment for the Offered Securities, and in the case of any of the events
specified in clauses (a)(i) through (vi), such event singly or together with any other such
event makes it, in your judgment, impracticable and inadvisable to market the Offered
Securities on the terms and in the manner contemplated in the Preliminary Offering
Memorandum or the Final Offering Memorandum.
- 12 -
(c) Opinion of Special U.K. Counsel for the Company. The Purchasers shall have
received an opinion, dated the Closing Date, of Allen & Overy LLP, Special U.K. legal
counsel
for the Company, in form and substance reasonably satisfactory to the counsel of the
Purchasers, substantially to the effect set forth in Schedule F hereto.
(d) Opinion and Disclosure Letter of Counsel of Company. The Purchasers shall have
received an opinion and negative assurance letter, dated the Closing Date, of Simpson
Thacher & Bartlett LLP, counsel to the Company, in form and substance reasonably
satisfactory to the counsel of the Purchasers, substantially to the effect set forth in
Schedules G-1 and G-2 hereto. In rendering its opinion, Simpson Thacher & Bartlett LLP may
rely as to matters involving English law upon the opinion of Allen & Overy LLP referred to
above.
(e) Opinion of Counsel for Purchasers. The Purchasers shall have received from Davis
Polk & Wardwell LLP, counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to such matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Davis Polk & Wardwell LLP may
rely, as to matters involving the matters governed by English law, upon the opinions of
Allen & Overy LLP and Simpson Thacher & Bartlett LLP referred to above.
(f) Officers Certificate. The Purchasers shall have received on the Closing Date a
certificate, dated the Closing Date, of an executive officer and a principal financial or
accounting officer of the Company, in which such officers, to the best of their knowledge
after reasonable investigation, shall state that (i) the representations and warranties of
the Company in this Agreement are true and correct in all material respects as of the
Closing Date, (ii) the Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to the Closing
Date, and (iii) since the date as of which information is given in the General Disclosure
Package and the Final Offering Memorandum, there has not been any Material Adverse Change
except as set forth or contemplated in the General Disclosure Package or the Final Offering
Memorandum or in an amendment or supplement thereto or as described in such certificate.
(g) Transaction Documents. The Company shall have executed and the Purchasers shall
have received fully executed and/or authenticated copies of the Indenture (including any
supplements thereto).
The Company will furnish the Purchasers with such conformed copies of such opinions,
certificates, letters and documents as the Purchasers reasonably request. The Representatives may
in their sole discretion waive on behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder.
8. Indemnification and Contribution. (a) The Company agrees that it will indemnify and hold
harmless each Purchaser and the officers, directors, partners, members, employees, agents and
affiliates of each Purchaser and each person, if any, who controls any Purchaser within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act (each an indemnified
party), against any loss, expense, claim, damage or liability to which, jointly or severally, such
indemnified party may become subject, under the Securities Act or otherwise, insofar as such loss,
expense, claim, damage or liability (or actions in respect thereof) arises out of or is based upon
any untrue statement or alleged untrue statement of any material fact contained in the Preliminary
Offering Memorandum or the Final Offering Memorandum, or any amendment or supplement thereto, or
any Issuer Free Writing Communication (including, without limitation, any Supplemental Marketing
Material), or arises out of or is based upon the omission or alleged omission to state therein any
material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading and, except as hereinafter in this Section provided, the Company agrees
to reimburse each indemnified party for any reasonable legal or other expenses as incurred by such
indemnified party in connection with investigating or defending against any such loss, expense,
claim, damage or liability; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, expense, claim, damage or liability arises out of or is
based on an untrue statement or alleged untrue statement or omission or alleged omission made in
any such document in reliance upon, and in conformity with, written information furnished to the
Company by or through the Representatives on behalf of any Purchaser expressly for use in any such
document, it being understood and agreed that the only such information consists of the information
described as such in subsection (b) below.
- 13 -
(b) Each Purchaser, severally and not jointly, agrees that it will indemnify and hold
harmless the Company and its officers and directors, and each of them, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act, against any loss,
expense, claim, damage or liability to which it or they may become subject, under the Securities
Act or otherwise, insofar as such loss, expense, claim, damage or liability (or actions in respect
thereof) arises out of or is based on any untrue statement or alleged untrue statement of any
material fact contained in the Preliminary Offering Memorandum or the Final Offering Memorandum,
or any amendment or supplement thereto, or any Issuer Free Writing Communication (including,
without limitation, any Supplemental Marketing Material), or arises out of or is based upon the
omission or alleged omission to state therein any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent, and only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any such documents in reliance
upon, and in conformity with, written information furnished to the Company by or through the
Representatives on behalf of such Purchaser expressly for use in any such document, it being
understood and agreed that the only such information furnished by any Purchaser consists of the
following information in the Preliminary Offering Memorandum and the Final Offering Memorandum
under the caption Plan of Distribution, the information in the third paragraph relating to
certain terms of the offering of the Offered Securities, the information in the second sentence of
the seventh paragraph relating to market-making activities of the Purchasers and the information in
the eighth paragraph relating to stabilizing transactions, over-allotment transactions and
syndicate covering transactions; and, except as hereinafter in this Section provided, each
Purchaser, severally and not jointly, agrees to reimburse the Company and its officers and
directors, and each of them, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act, for any reasonable legal or other expenses incurred by it or
them in connection with investigating or defending against any such loss, expense, claim, damage or
liability.
(c) Upon receipt of notice of the commencement of any action against an indemnified party,
the indemnified party shall, with reasonable promptness, if a claim in respect thereof is to be
made against an indemnifying party under its agreement contained in this Section 8, notify such
indemnifying party in writing of the commencement thereof; but the omission so to notify an
indemnifying party shall not relieve it from any liability which it may have to the indemnified
party otherwise than under its agreement contained in this Section 8. In the case of any such
notice to an indemnifying party, the indemnifying party shall be entitled to participate at its own
expense in the defense, or if it so elects, to assume the defense, of any such action, but, if it
elects to assume the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the indemnified party and to any other indemnifying party that is a defendant in
the suit. In the event that any indemnifying party elects to assume the defense of any such action
and retain such counsel, the indemnified party shall bear the fees and expenses of any additional
counsel retained by it unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the contrary; (ii) the indemnifying party has failed within a reasonable time to
retain
counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and the representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. No indemnifying party shall be liable
in the event of any settlement of any such action effected without its consent.
- 14 -
(d) If any Purchaser or person entitled to indemnification by the terms of subsection (a) of
this Section 8 shall have given notice to the Company of a claim in respect thereof pursuant to
subsection (c) of this Section 8, and if such claim for indemnification is thereafter held by a
court to be unavailable for any reason other than by reason of the terms of this Section 8 or if
such claim is unavailable under controlling precedent, such Purchaser or person shall be entitled
to contribution from the Company for liabilities and expenses, except to the extent that
contribution is not permitted under Section 11(f) of the Securities Act. In determining the amount
of contribution to which such Purchaser or person is entitled, there shall be considered the
relative benefits received by such Purchaser or person and the Company from the offering of the
Offered Securities that were the subject of the claim for indemnification (taking into account the
portion of the proceeds of the offering realized by each), the Purchaser or persons relative
knowledge and access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and any other equitable
considerations appropriate under the circumstances. The Company and the Purchasers agree that it
would not be equitable if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Purchasers were treated as one entity for such purpose).
(e) No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 8 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party and all liability arising out of such litigation, investigation, proceeding
or claim, and (ii) does not include a statement as to or an admission of fault, culpability or the
failure to act by or on behalf of any indemnified party.
(f) The indemnity and contribution provided for in this Section 8 and the representations and
warranties of the Company and the several Purchasers set forth in this Agreement shall remain
operative and in full force and effect regardless of (i) any investigation made by or on behalf of
any Purchaser or any person controlling any Purchaser or the Company or their respective directors
or officers, (ii) the acceptance of any Offered Securities and payment therefor under this
Agreement and (iii) any termination of this Agreement.
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total aggregate principal amount of Offered Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other persons, including
any of the non-defaulting Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting Purchasers agreed
but failed to purchase. In the event that any Purchaser or Purchasers default in their obligations
to purchase Offered Securities hereunder, the Company may by prompt written notice to
non-defaulting Purchasers postpone
the Closing Date for a period of not more than seven full business days in order to effect whatever
changes may thereby be made necessary in the General Disclosure Package or the Final Offering
Memorandum or in any other documents, and the Company will promptly furnish any amendments or
supplements to the General Disclosure Package or the Final Offering Memorandum which may thereby be
made necessary. If any Purchaser or Purchasers so default and the aggregate principal amount of
Offered Securities with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Offered Securities by other persons are not made within 48 hours
after such default, this Agreement will terminate without liability of any party to any other party
except that the provisions of Sections 8, 10 and 15 shall at all times be effective and shall
survive such termination. As used in this Agreement, the term Purchaser includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve a defaulting Purchaser
from liability for its default.
- 15 -
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company or its officers and of
the several Purchasers set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results thereof, made by or on
behalf of any Purchaser, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment for the Offered
Securities. If for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the Purchasers pursuant to
Section 8 shall remain in effect. If the purchase of the Offered Securities by the Purchasers is
not consummated for any reason other than solely because of the termination of this Agreement
pursuant to Section 9 or the occurrence of any event specified in clause (iii), (v) or (vi) of
Section 7(b) or any combination of events specified in such clauses (iii), (v) and (vi), the
Company will reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers at Barclays Capital Inc.
at 745 Seventh Avenue, New York, NY 10019, Facsimile: 646-834-8133, Attention: Syndicate
Registration; Credit Suisse Securities (USA) LLC at Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: LCD-IBD; Merrill Lynch, Pierce, Fenner & Smith Incorporated at One Bryant
Park, NY1-100-18-03, New York, NY 10036, Facsimile: 212-901-7881, Attention: High Grade Debt
Capital Markets Transaction Management/Legal; RBS Securities Inc., 600 Washington Boulevard,
Stamford, CT 06901, Facsimile: 203-873-4534, Attention: Debt Capital Markets Syndicate or, if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at PPL WEM Holdings
plc at Avonbank Feeder Road, Bristol, United Kingdom BS2 0TB, Attention: Corporate Secretary,
Facsimile +44-11-7933-2001; provided, however, that any notice to a Purchaser pursuant to Section 8
will be mailed, delivered or telegraphed and confirmed to such Purchaser.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit with respect to information required
to be delivered to holders of the Offered Securities pursuant to the Indenture and in accordance
with Rule 144A(d)(4) against the Company as if such holders were parties thereto.
- 16 -
13. Representation of Purchasers. You will act for the several Purchasers in connection with
this purchase, and any action under this Agreement taken by you will be binding upon all the
Purchasers.
14. Miscellaneous.
(a) Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together constitute one and the
same Agreement.
(b) Currency. The obligation of the Company pursuant to this Agreement in respect of any sum
due to any Purchaser shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by such Purchaser of any
sum adjudged to be so due in such other currency, on which (and only to the extent that) such
Purchaser may in accordance with normal banking procedures purchase United States dollars with such
other currency; if the United States dollars so purchased are less than the sum originally due to
such Purchaser hereunder, the Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Purchaser against such loss. If the United States dollars so purchased
are greater than the sum originally due to such Purchaser hereunder, such Purchaser agrees to pay
to the Company an amount equal to the excess of the dollars so purchased over the sum originally
due to such Purchaser hereunder.
(c) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(d) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
15. Absence of Fiduciary Relationship. The Company acknowledges and agrees that (a) the
purchase and sale of the Offered Securities pursuant to this Agreement, including the determination
of the public offering price of the Offered Securities and any related discounts and commissions,
is an arms-length commercial transaction between the Company, on the one hand, and the several
Purchasers, on the other hand, (b) in connection with the offering contemplated hereby and the
process leading to such transaction, each Purchaser is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or their respective stockholders, creditors,
employees or any other party, (c) no Purchaser has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Purchaser has advised or is currently
advising the Company on other matters) and no Purchaser has any obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Purchasers and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, (e) the Purchasers have
not provided any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it deemed appropriate and (f) the Company waives, to the fullest extent
permitted by law, any claims it may have against the Purchasers for breach of fiduciary duty or
alleged breach of fiduciary duty and agree that the Purchasers shall have no liability (whether
direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
creditors or employees.
- 17 -
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
17. U.S. Jurisdiction. The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit
or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum. The Company irrevocably
appoints CT Corporation System, as its authorized agent in the Borough of Manhattan in The City of
New York upon which process may be served in any such suit or proceeding, and agrees that service
of process upon such agent, and written notice of said service to the Company, by the person
serving the same to the address provided in Section 11, shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The Company further agrees to
take any and all action as may be necessary to maintain such designation and appointment of such
agent in full force and effect for a period of seven years from the date of this Agreement.
[Signature Pages Follow]
- 18 -
If the foregoing is in accordance with the Purchasers understanding of our agreement, kindly
sign and return to us one of the counterparts hereof, whereupon it will become a binding agreement
between the Company and the several Purchasers in accordance with its terms.
Very truly yours, PPL WEM HOLDINGS PLC |
||||
By: | ||||
Name: | ||||
Title: |
[Purchase Agreement]
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
BARCLAYS CAPITAL INC.
By: |
||||
Title: |
CREDIT SUISSE SECURITIES (USA) LLC
By: |
||||
Title: |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: |
||||
Title: |
RBS SECURITIES INC.
By: |
||||
Title: |
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
and as the Representatives of
the several Purchasers
[Purchase Agreement]
SCHEDULE A
Aggregate | Aggregate | |||||||
Principal | Principal | |||||||
Amount of the | Amount of the | |||||||
Purchaser | 2016 Notes | 2021 Notes | ||||||
Credit Suisse Securities (USA) LLC |
$ | 92,000,000 | $ | 100,000,000 | ||||
Merrill Lynch, Pierce, Fenner & Smith |
$ | 92,000,000 | $ | 100,000,000 | ||||
Incorporated |
$ | 92,000,000 | $ | 100,000,000 | ||||
RBS Securities Inc. |
$ | 55,200,000 | $ | 60,000,000 | ||||
Barclays Capital Inc. |
$ | 46,000,000 | $ | 50,000,000 | ||||
Banco Bilbao Vizcaya Argentaria, S.A. |
$ | 31,050,000 | $ | 33,750,000 | ||||
BNP Paribas Securities Corp. |
$ | 31,050,000 | $ | 33,750,000 | ||||
Credit Agricole Securities (USA) Inc. |
$ | 31,050,000 | $ | 33,750,000 | ||||
Scotia Capital (USA) Inc. |
$ | 31,050,000 | $ | 33,750,000 | ||||
U.S Bancorp Investments, Inc. |
$ | 31,050,000 | $ | 33,750,000 | ||||
Lloyds Securities Inc. |
$ | 19,550,000 | $ | 21,250,000 | ||||
Total |
$ | 460,000,000 | $ | 500,000,000 | ||||
SCHEDULE B
1. | Issuer Free Writing Communications (included in the General Disclosure Package): |
1. | Final term sheet, dated April 18, 2011, a copy of which is attached hereto. |
CONFIDENTIAL
PPL WEM HOLDINGS PLC
TERM SHEET
3.900% Senior Notes due 2016
5.375% Senior Notes due 2021
5.375% Senior Notes due 2021
Issuer: |
PPL WEM Holdings plc | |||
Distribution: | Rule 144A without Registration Rights / Regulation S | |||
Trade Date: |
April 18, 2011 | |||
Expected Settlement Date: |
April 21, 2011 (T+3) | |||
Joint Book-Running Managers: | Barclays Capital Inc. Credit Suisse Securities (USA) LLC Merrill Lynch, Pierce, Fenner & Smith Incorporated RBS Securities Inc. Banco Bilbao Vizcaya Argentaria, S.A. BNP Paribas Securities Corp. Credit Agricole Securities (USA) Inc. Scotia Capital (USA) Inc. U.S Bancorp Investments, Inc. |
|||
Co-Manager: |
Lloyds Securities Inc. | |||
Security Description: |
Senior Notes due 2016 | Senior Notes due 2021 | ||
Aggregate Principal |
$460 million | $500 million | ||
Amount: |
||||
Expected Ratings |
Baa3 (stable) /BBB-(stable) | Baa3 (stable) /BBB-(stable) | ||
(Moodys/S&P)* |
||||
Maturity Date: |
May 1, 2016 | May 1, 2021 | ||
Interest Payment Dates: |
May 1 and November 1, commencing | May 1 and November 1, commencing | ||
November 1, 2011 | November 1, 2011 | |||
Benchmark Treasury: |
2.25% due March 31, 2016 | 3.625% due February 15, 2021 | ||
Benchmark Treasury Yield: |
2.073% | 3.378% | ||
Spread to Benchmark |
+185 basis points | +200 basis points | ||
Treasury: |
||||
Yield to Maturity: |
3.923% | 5.378% | ||
Coupon: |
3.900% per annum | 5.375% per annum |
Offering Price: |
99.895% of principal amount | 99.975% of principal amount | ||
Redemption Provisions: |
Make-whole call, in whole or in part, | Prior to February 1, 2021 make-whole | ||
at 30 basis points, plus accrued and | call, in whole or in part, at T+35 | |||
unpaid interest. | basis points, plus accrued and unpaid | |||
interest. | ||||
On or after February 1, 2021, | ||||
callable, in whole or in part, at par | ||||
plus accrued and unpaid interest. | ||||
Tax Redemption: |
In whole but not in part at par at any | In whole but not in part at par at any | ||
time in the event of a change in | time in the event of a change in | |||
certain withholding taxes | certain withholding taxes | |||
Denominations: |
$2,000 and integral multiples of $1,000 | $2,000 and integral multiples of $1,000 | ||
CUSIP/ISIN: |
144A: 69353U AB7 / US69353UAB70 | 144A: 69353U AA9 / US69353UAA97 | ||
Reg S: G7208U AB7 / USG7208UAB73 | Reg S: G7208U AA9 / USG7208UAA90 |
* | Note: a security rating is not a recommendation to buy, sell or hold securities, it may be
revised or withdrawn at any time by the assigning rating organization and each rating presented
should be evaluated independently of any other rating. |
These securities have not been registered under the Securities Act of 1933, as amended (the
Securities Act), and may only be sold to qualified institutional buyers pursuant to Rule 144A
or outside the united States to non-U.S. persons in compliance with Regulation S under the
Securities Act.
This communication is intended for the sole use of the person to whom it is provided by the
sender. This communication should be read in conjunction with the Issuers preliminary offering
memorandum dated April 18, 2011 (the Offering Memorandum). The information in this
communication supersedes the information in the Offering Memorandum to the extent it is
inconsistent with the information in the Offering memorandum. This communication is qualified in
its entirety by reference to the Offering Memorandum.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION
AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A
RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
SCHEDULE C
Supplemental Marketing Materials:
Investor Roadshow Presentation (April 2011)
SCHEDULE D
1. | Western Power Distribution (East Midlands) plc (formerly Central Networks East plc) |
|
2. | WPD Midlands Holdings Limited (formerly Central Networks Limited) |
|
3. | Western Power Distribution (West Midlands) plc (formerly Central Networks West plc) |
|
4. | WPD Midlands Networks Services Limited (formerly Central Networks Services Limited) |
|
5. | Cell Site Connection Services Limited (formerly Cell Site Services Limited) |
|
6. | WPD Midlands Networks Contracting Limited (formerly Central Networks Contracting
Limited) |
|
7. | WPD Guernsey Limited |
|
8. | WPD Limited |
|
9. | Hyder Limited |
|
10. | Hyder Share Scheme Trustee Limited |
|
11. | Hyder Share Scheme Trustee (2) Limited |
SCHEDULE E
1. | Western Power Distribution (East Midlands) plc (formerly Central Networks East plc) |
|
2. | WPD Midlands Holdings Limited (formerly Central Networks Limited) |
|
3. | Western Power Distribution (West Midlands) plc (formerly Central Networks West plc) |
|
4. | WPD Midlands Networks Services Limited (formerly Central Networks Services Limited) |
|
5. | Cell Site Connection Services Limited (formerly Cell Site Services Limited) |
|
6. | WPD Midlands Networks Contracting Limited (formerly Central Networks Contracting
Limited) |
SCHEDULE F
Form of Opinion of Allen & Overy LLP,
Special U.K. Counsel for the Company
Dear Sirs,
PPL WEM Holdings plc (the Company) Purchase Agreement between the Purchasers and the
Company dated _____ April, 2011 (the Agreement)
Company dated _____ April, 2011 (the Agreement)
We have received instructions from the Company to provide a legal opinion in connection with:
(i) | the Agreement; |
|
(ii) | an indenture and supplemental indenture no.1 thereto, each between the Company and the
Trustee dated
_____
April, 2011 (both the indenture and the supplemental indenture no.1
together, the Indenture); and |
|
(iii) | the issue and sale to the several Purchasers of U.S.$_____
aggregate principal amount of its
_____%Senior Notes due 2016 (the 2016 Notes) and U.S.$_____
aggregate principal amount of its
_____%
Senior Notes due 2021 (the 2021 Notes and together with the 2016 Notes, the Offered
Securities) to be issued under the Indenture. |
The Agreement and the Indenture are together the Opinion Documents.
Definitions
Unless otherwise defined in this opinion, words defined in the Agreement have the same meaning
when used in this opinion.
Documents and searches
For the purposes of this opinion we have examined the following documents:
(a) | a signed copy (including of counterparts if applicable) of each of the Agreement and the
Indenture; |
|
(b) | a certified copy of the memorandum and articles of association, certificate of incorporation
of the Company and any certificates of incorporation on a change of name; |
|
(c) | a certified copy of the minutes of a meeting of the board of directors of the Company held on
April, 2011; |
|
(d) | the statements in the General Disclosure Package in the Preliminary Offering Memorandum [in
the section headed Enforceability of Civil Liabilities] and in the section headed Certain
Tax Considerations (in respect of United Kingdom taxation only); and |
(e) | a certificate of an executive officer and a principal financial or accounting officer of the
Company in which such officers confirm to the best of their knowledge after reasonable
investigation, amongst other things, that (i) the representations and warranties of the
Company in the Agreement are true and correct in all material respects as of the Closing Date,
(ii) the Company has complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing Date, and (iii)
since the date as of which information is given in the General Disclosure Package and the
Final Offering Memorandum, there has not been any Material Adverse Change except as set forth
or contemplated in the General Disclosure Package or the Final Offering Memorandum or in
amendment or supplement thereto or as described in such certificate. |
On ___
April, 2011 we carried out a search of the Company at the Companies Registry. On ___
April, 2011 we made a telephone enquiry to the Central Registry of Winding Up-Petitions to
check whether a winding-up petition has been presented in respect of the Company at the record of
winding-up petitions at the Companies court.
The above are the only documents or records we have examined and the only searches and
enquiries we have carried out for the purposes of this opinion.
Assumptions
We assume that:
(a) | the Company is not unable to pay its debts within the meaning of section 123 of the
Insolvency Act, 1986 at the time it enters into any of the Opinion Documents and will not as a
result of any of the Opinion Documents be unable to pay its debts within the meaning of that
section; |
|
(b) | no step has been taken to wind up or dissolve the Company, put the Company into
administration or appoint a receiver, administrator, administrative receiver, trustee in
bankruptcy or similar officer in respect of it or any of its assets although the searches of
the Companies Registry referred to above gave no indication that any winding-up, dissolution
or administration order or appointment of a receiver, administrator, administrative receiver,
trustee in bankruptcy or similar officer has been made; |
|
(c) | all signatures and documents are genuine; |
|
(d) | all documents are and remain up-to-date; |
|
(e) | the correct procedure was carried out at the board meeting referred to above; for example,
there was a valid quorum, all relevant interests of directors were declared and the
resolutions were duly passed at the meeting; |
|
(f) | there are no contractual or similar restrictions binding on the Company (other than as may be
contained in the Opinion Documents or the Articles of Association of the Company (as referred
to at paragraph (b) under Documents and searches above) which would affect the conclusions in
this opinion; |
|
(g) | each of the Opinion Documents has been duly executed on behalf of the Company by the
person(s) authorised by the resolutions passed at the meeting referred to above; |
(h) | each of the Opinion Documents is a legally binding, valid and enforceable obligation of all
parties to it (other than the Company) and that it is legal, valid, binding and enforceable
under its governing law; |
|
(i) | the Company is resident in the United Kingdom for United Kingdom tax purposes and is resident
nowhere else; |
|
(j) | no Offered Security will carry a right to interest the amount of which exceeds a reasonable
commercial return on the nominal amount of the capital; and |
|
(k) | no foreign law affects the conclusions stated below. |
Opinion
Subject to the qualifications set out below and to any matters not disclosed to us, it is our
opinion that, so far as the present laws of England (and where relevant current United Kingdom tax
law and HM Revenue & Customs practice) are concerned:
2. | Status: The Company is a company duly incorporated with public limited liability under the
laws of England, is a validly existing company and is not in liquidation. |
|
3. | Powers and authority: The Company has the corporate power to execute, deliver and perform
each of the Opinion Documents and has taken all necessary corporate action to duly authorise
the execution, delivery and performance of each of the Opinion Documents. Each of the Opinion
Documents has been duly executed and delivered by the Company. |
|
4. | Legal validity: Each of the Opinion Documents and the Offered Securities constitutes a
legally binding, valid and enforceable obligation of the Company. |
|
5. | Non-conflict: The execution and delivery by the Company of, and performance of its
obligations under each of the Opinion Documents will not contravene any provision of (i) any
existing English law applicable to companies generally in a manner which would render the
Companys performance, insofar as it relates to the Companys payment obligations, unlawful,
or (ii) its Memorandum or Articles of Association. |
|
6. | Consents: No authorisations, approvals or consents of any court, governmental, judicial or
regulatory authority of or within England are required by the Company in connection with the
execution and delivery by the Company of, and performance of its obligations under each of the
Opinion Documents. |
|
7. | Registration requirements: It is not necessary or advisable to file, register or record any
of the Opinion Documents in any public place or elsewhere in England in connection with the
execution and delivery by the Company of, and performance of its obligations under each of the
Opinion Documents except (for the avoidance of doubt): |
(a) | that any person in the United Kingdom (including a United Kingdom based paying
agent) who pays or credits interest to, or receives interest for the benefit of,
another person may in certain circumstances be required by HM Revenue & Customs to
provide certain
information (which may include the name and address of the beneficial owner of the
interest) to HM Revenue & Customs; and |
(b) | that, under the Reporting of Savings Income Information Regulations 2003, as
amended (the 2003 Regulations), a paying agent (as defined in the 2003 Regulations)
established in the United Kingdom who makes a payment of savings income to an
individual resident, or a residual entity (as defined in the 2003 Regulations)
established, in another EU member state or one of certain other non-EU countries and
territories will be required to obtain, verify, record and then provide to HM Revenue &
Customs certain information about the payee and the payment; and |
||
(c) | that Part 7 of Finance Act 2004 contains provisions requiring the disclosure to
HM Revenue & Customs of arrangements that fall within prescribed descriptions where the
main benefit, or one of the main benefits, that might be expected to arise to any
person is the obtaining of an advantage in relation to United Kingdom tax. |
8. | Stamp duties: No stamp, registration or similar tax or charge is payable by the Company in
England in respect of the execution or delivery of any of the Opinion Documents or issuance of
the Offered Securities. |
|
9. | Immunity: The Company is not entitled to claim immunity from suit, execution, attachment or
other legal process in England and Wales |
|
10. | Jurisdiction: Assuming that each of the Opinion Documents (including the submission to the
non-exclusive jurisdiction of any federal or state court in the Borough of Manhattan in The
City of New York set out therein) is legal, valid, binding and enforceable under its governing
law, an English court will generally respect the submission by the Company to the
non-exclusive jurisdiction of the federal and state courts in the Borough of Manhattan in The
City of New York. An English court may, however, refuse to stay or set aside its own
proceedings in relation to the Opinion Documents if it considers that: |
(a) | it is a more appropriate forum for the dispute than the federal and state
courts in the Borough of Manhattan in The City of New York; |
||
(b) | the defendant has taken steps in the proceedings before the English courts; |
||
(c) | it has jurisdiction under Council Regulation (EC) 44/2001 of 22 December 2000
(if applicable, as applied by the Agreement made on 19 October 2005 between the
European Community and the Kingdom of Denmark on jurisdiction and the recognition and
enforcement of judgements in civil and commercial matters (OJ No. L299 16.11.2005 at
p.62)), the Brussels Convention of 1968, the Lugano Convention of 1988 or the Lugano
Convention of 2007 on jurisdiction and the enforcement of judgments (each as enacted
into English law) or as otherwise provided for under the Civil Jurisdiction and
Judgments Act 1982 (as amended); or |
||
(d) | there is found to be no effective jurisdiction or choice of court agreement
between the parties to the Opinion Documents. |
11. | Choice of law: The choice of the laws of the State of New York as the governing law of the
Agreement and the choice of the laws of the State of New York (including, without limitation,
Section 5-1401 of the New York General Obligations Law or any successor to such statute),
except to the extent that the Trust Indenture Act of 1939 (as in effect at such time) shall
be applicable and except to the extent that the law of any other jurisdiction shall
mandatorily govern as the governing law of the Indenture (and the Offered Securities) would
be upheld as a valid choice by the courts of England, subject to and in accordance with
Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations
(Rome I) (and, in the case of the Indenture, subject to and in accordance with the Recognition
of Trusts Act 1987) and provided that the relevant contractual obligation is within the scope
of, and the choice is permitted by, Rome I (or, in the case of the Indenture, the Recognition
of Trusts Act 1987). |
|
12. | Enforcement of Judgments: A judgment obtained against the Company by a federal or state court
in the United States of America in any suit, action or proceeding arising out of or in
connection with the Opinion Documents or the transactions contemplated thereby could not be
enforced by registration in the English courts but the judgment would be treated as
constituting a cause of action against the Company and could be sued upon summarily in the
English courts. The English courts should enter judgment against the Company in such
proceedings, without re-examination of the merits of the original judgment, provided that: |
(a) | the original court was of competent jurisdiction, |
||
(b) | the original judgment is final and conclusive, |
||
(c) | the original judgment is not for multiple damages (as defined by the Protection
of Trading Interests Act 1980), |
||
(d) | the original judgment is for a fixed sum of money, |
||
(e) | the original judgment is not for a tax, fine or penalty, |
||
(f) | the original judgment was not obtained by fraud, |
||
(g) | the original judgment was not obtained in proceedings contrary to natural
justice, |
||
(h) | the original judgments enforcement is not contrary to English public policy or
in violation of the Human Rights Act 1998, |
||
(i) | enforcement proceedings are instituted within six years after the date of the
judgment, and |
||
(j) | the original judgment is not inconsistent with an English judgment in respect
of the same point at issue. |
13. | [General Disclosure Package: The statements in the General Disclosure Package in the
Preliminary Offering Memorandum [in the section headed Enforceability of Civil Liabilities]
and in the section headed Certain Tax Considerations (in respect of United Kingdom taxation
only) as at the date of the General Disclosure Package and as at the date of the opinion are
correct in all material respects.] |
Qualifications
This opinion is subject to the following qualifications:
(a) | This opinion is subject to all insolvency and other laws affecting the rights of creditors
generally. |
|
(b) | This opinion only deals with English law. |
|
(c) | No opinion is expressed on matters of fact. |
|
(d) | No account has been taken in this opinion of the exercise or future exercise of powers by the
UK Government pursuant to section 5(4) of the Protection of Trading Interests Act 1980. |
|
(e) | An English court has power to stay an action where it is shown that it can, without injustice
to the plaintiff, be tried in a more convenient forum. An English court may also, at its
discretion, order a plaintiff in an action, if he is not ordinarily resident in the UK, to
provide security for costs. |
|
(f) | There is doubt as to the enforceability in England and Wales of US judgments in respect of
civil judgments predicated purely on US securities laws. |
|
(g) | Any provision in any agreement which amounts to an undertaking to assume the liability on
account of the absence of payment of stamp duty or an indemnity to pay stamp duty may be void. |
|
(h) | The term enforceable means that a document is of a type and form enforced by the English
courts. It does not mean that each obligation will be enforced in accordance with its terms.
Certain rights and obligations may be qualified by the non-conclusivity of certificates,
doctrines of good faith and fair conduct, the availability of equitable remedies and other
matters, but in our view these qualifications would not defeat your legitimate expectations in
any material respect. |
This opinion is given for the sole benefit of the persons to whom the opinion is addressed.
This opinion may not be disclosed to anyone else, except that it may be disclosed, but only on
the express basis that they may not rely on it, to:
(i) | any professional adviser; or |
|
(ii) | any potential successor (other than a successor to the Trustee), assignee or transferee under
the Opinion Documents (or to any other person to whom payments are to be made by reference to
the Opinion Documents); or |
|
(iii) | to any regulatory authority to whose jurisdiction the Company may become subject or
recognised stock exchanges on which the Companys securities are listed, in each case to the
extent required by those authorities or stock exchanges and to those authorities or stock
exchanges only; or |
|
(iv) | as required by law or regulation. |
SCHEDULE G-1
Form of U.S. Opinion of Simpson Thacher & Bartlett LLP,
Counsel for the Company
Ladies and Gentlemen:
We have acted as special United States counsel to PPL WEM Holdings plc, a public limited
company registered under the law of England and Wales (the Company) in connection with the
purchase by you of $[] aggregate principal amount of []% Senior Notes due 2016 (the 2016 Notes)
and $[] aggregate principal amount of []% Senior Notes due 2021 (the 2021 Notes and, together
with the 2016 Notes, the Notes) issued by the Company, pursuant to the Purchase Agreement dated
April [], 2011 (the Purchase Agreement) between the Company and you, as initial purchasers (the
Initial Purchasers).
We have examined the Preliminary Offering Memorandum, dated April [], relating to the sale of
the Notes (the Preliminary Offering Memorandum), as supplemented by the Pricing Term Sheet set
forth as Schedule B to the Purchase Agreement, dated April [], 2011, relating to the sale of the
Notes (together with the Preliminary Offering Memorandum, the Pricing Disclosure Package); the
Offering Memorandum, dated April [], 2011, relating to the sale of the Notes (the Offering
Memorandum); the Indenture dated as of April [], 2011, as supplemented by the Supplemental
Indenture No. 1 dated as of April [], 2011 (collectively, the Indenture) between the Company and
The Bank of New York Mellon, as trustee (the Trustee), relating to the Notes; the global notes
representing the Notes; and the Purchase Agreement.
In addition, we have examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing and upon originals, or duplicates or certified or conformed copies,
of such corporate and other records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of officers and representatives of the
Company and have made such other investigations, as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified or conformed copies
and the authenticity of the originals of such latter documents.
In rendering the opinions set forth in paragraphs 1, 2, and 5 below we have assumed that (1)
the Company is validly existing and in good standing under the law of England and Wales, (2) the
Company has duly authorized, executed and delivered, as applicable, the Indenture, the Notes and
the Purchase Agreement in accordance with its articles of association and the law of England and
Wales, (3) the execution, delivery and performance by the Company of the Indenture, the Notes and
the Purchase Agreement, as applicable, do not violate the law of England and Wales or any other
jurisdiction (except that no such assumption is made with respect to the law of the State of New
York and the federal law of the United States) and (4) the execution, delivery and performance by
the Company of the Indenture, the Notes and the Purchase Agreement, as applicable, do not
constitute a breach or violation of any agreement or instrument which is binding upon the Company
or its articles of association.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations
stated herein, we are of the opinion that:
1. The Indenture has been duly executed and delivered by the Company in accordance with
the law of the State of New York and, assuming that the Indenture is the valid and legally
binding obligation of the Trustee, the Indenture constitutes a valid and legally binding
obligation of the Company enforceable against the Company, in accordance with its terms.
2. The Notes have been duly executed and issued by the Company in accordance with the
law of the State of New York and, assuming due authentication thereof by the Trustee and
upon payment and delivery in accordance with the Purchase Agreement, will constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the Indenture.
3. The statements made in each of the Pricing Disclosure Package and the Offering
Memorandum under the caption Description of the Notes, insofar as they purport to
constitute summaries of certain terms of documents referred to therein, constitute accurate
summaries of the terms of such documents in all material respects.
4. The statements made in the Pricing Disclosure Package under the caption Certain Tax
ConsiderationsCertain United States Federal Income Tax Consequences, insofar as they
purport to constitute summaries of matters of United States federal tax law and regulations
or legal conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects.
5. The Purchase Agreement has been duly executed and delivered by the Company in
accordance with the law of the State of New York.
6. The issue and sale of the Notes by the Company, the execution, delivery and
performance by the Company of the Purchase Agreement and the execution and delivery of the
Indenture by the Company will not violate any U.S. federal or New York State statute or any
rule or regulation that has been issued pursuant to any U.S. federal or New York State
statute or any order known to us issued pursuant to any U.S. federal or New York State
statute by any U.S. federal or New York State court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their properties, except
that it is understood that no opinion is given in this paragraph 6 with respect to any U.S.
federal or state securities law or any rule or regulation issued pursuant to any U.S.
federal or state securities law.
7. No consent, approval, authorization, order, registration or qualification of or with
any U.S. federal or New York State governmental agency or body or, to our knowledge, any
U.S. federal or New York State court is required for the issue and sale of the Notes by the
Company and the compliance by the Company with the Purchase Agreement and the Indenture,
except that it is understood that no opinion is given in this paragraph 7 with respect to
any U.S. federal or state securities law or any rule or regulation issued pursuant to any
U.S. federal or state securities law.
8. No registration under the Securities Act of 1933, as amended, of the Notes and no
qualification of the Indenture under the Trust Indenture Act of 1939, as amended, is
required for the offer and sale of the Notes by the Company to the Initial Purchasers or the
reoffer and resale of the Notes by the Initial Purchasers to the initial purchasers
therefrom solely in the manner contemplated by the Offering Memorandum, the Purchase
Agreement and the Indenture.
9. The Company is not an investment company within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended.
Our opinions set forth in paragraphs 1 and 2 above are subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law), (iii) an implied covenant of good faith and fair
dealing and (iv) the effects of the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors rights. In addition, we express no opinion as
to the validity, legally binding effect or enforceability of the waiver of rights and defenses
contained in Section [] of the Indenture.
In connection with the provisions of the Purchase Agreement and the Indenture and the
comparable provisions of the Notes whereby the parties thereto submit to the jurisdiction of the
U.S. federal and state courts in the Borough of Manhattan in the City, County and State of New
York, we note the limitations of 28 U.S.C. §§ 1331 and 1332 on U.S. federal court jurisdiction. In
connection with the provisions of the Indenture and the Purchase Agreement which relate to forum
selection (including, without limitation, any waiver of any objection to venue or any objection
that a court is an inconvenient forum), we note that under NYCPLR §510 a New York State court may
have discretion to transfer the place of trial, and under 28 U.S.C. §1404(a) a U.S. District Court
has discretion to transfer an action from one U.S. federal court to another, and we
also note that a New York State court and a U.S. District Court may dismiss an action on the
ground that such court is an improper venue or inconvenient forum.
We note that (i) a New York State statute provides that, with respect to a foreign currency
obligation, a New York State court shall render a judgment or decree in such foreign currency and
such judgment or decree shall be converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment or decree and (ii) with respect to a
foreign currency obligation, a U.S. federal court sitting in the State of New York may award
judgment in U.S. dollars, provided that we express no opinion as to the rate of exchange that such
court would apply.
We do not express any opinion herein concerning any law other than the law of the State of New
York and the federal law of the United States. With respect to matters of the law of England and
Wales, we understand that you are relying on the opinion of Allen & Overy LLP, dated the date
hereof.
This opinion letter is rendered to you in connection with the above-described transaction.
This opinion letter may not be relied upon by you for any other purpose, or relied upon by, or
furnished to, any other person, firm or corporation without our prior written consent, except that
the Trustee may rely upon paragraphs 1, 2, 5, 6, 7, 8 and 9 above, to the same extent as if the
opinions in said paragraphs were addressed to it, subject to the qualifications, assumptions and
limitations relating thereto.
SCHEDULE G-2
Disclosure Letter of Simpson Thacher & Bartlett LLP,
Counsel for the Company
Disclosure Letter of Simpson Thacher & Bartlett LLP,
Counsel for the Company
Ladies and Gentlemen:
We have acted as United States counsel to PPL WEM Holdings plc, a public limited company
registered under the law of England and Wales (the Company) in connection with the purchase by
you of $[] aggregate principal amount of []% Senior Notes due 20[] (the 20[] Notes) and $[]
aggregate principal amount of []% Senior Notes due 20[] (the 20[] Notes and together with the
20[] Notes, the Notes) issued by the Company, pursuant to the Purchase Agreement dated April
[], 2011 between the Company and you, as initial purchasers.
We have not independently verified the accuracy, completeness or fairness of the statements
made or included in the Preliminary Offering Memorandum, dated April [], 2011, relating to the
sale of the Notes (the Preliminary Offering Memorandum), as supplemented by the Pricing Term
Sheet set forth as Schedule B to the Purchase Agreement, dated April [], 2011, relating to the
sale of the Notes (together with the Preliminary Offering Memorandum, the Pricing Disclosure
Package) or the Offering Memorandum, dated April [], 2011, relating to the sale of the Notes (the
Offering Memorandum), and we take no responsibility therefor, except as and to the extent set
forth in numbered paragraphs 3 and 4 of our opinion letter to you dated the date hereof.
In connection with, and under the circumstances applicable to, the offering of the Notes, we
participated in conferences with certain officers and employees of the Company, representatives of
PricewaterhouseCoopers LLP, representatives of Ernst & Young LLP, your representatives and your
counsel, in the course of the preparation by the Company of the Pricing
Disclosure Package and the Offering Memorandum and also reviewed certain corporate and other
records and documents furnished to us by the Company, as well as the documents delivered to you at
the closing. Certain of such corporate and other records and documents were governed by the laws
of England and Wales and, accordingly, we necessarily relied upon directors, officers and employees
of the Company, counsel to the Company in such jurisdiction and other persons in evaluating such
corporate and other records and documents. Based upon our review of the Pricing Disclosure Package
and the Offering Memorandum, our participation in the conferences referred to above, our review of
the corporate and other records and documents as described above, as well as our understanding of
the U.S. federal securities laws and the experience we have gained in our practice thereunder,
nothing has come to our attention that causes us to believe that (a) the Pricing Disclosure
Package, as of the time of the pricing of the offering of the Notes on April [], 2011, 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 the circumstances under which they were made, not
misleading, or (b) the Offering Memorandum, as of its date or as of the date hereof, contained or
contains any untrue statement of a material fact or omitted or omits 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, except that we express no belief in either of clauses (a) or (b)
above with respect to the financial statements or other financial or statistical data contained in
or omitted from the Pricing Disclosure Package or the Offering Memorandum.
This letter is delivered to you in connection with the above-described transaction. This
letter may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any
other person, firm or corporation.