Exhibit (99)-5
Commonwealth Edison Company and ComEd Financing II
Form S-4 File No. 333-
EXCHANGE AGENCY AGREEMENT
June __, 1997
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Re: ComEd Financing II
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Ladies and Gentlemen:
Commonwealth Edison Company, an Illinois corporation as Sponsor (the
"Company"), and the ComEd Financing II, a Delaware business trust (the "Trust"),
hereby appoint Wilmington Trust Company ("Wilmington Trust") to act as exchange
agent (the "Exchange Agent") in connection with an exchange offer by the Company
and the Trust to exchange up to $150,000,000 aggregate Liquidation Amount of the
Trust's 8.50% Series B Capital Securities (the "New Capital Securities"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like aggregate Liquidation Amount of the Trust's
outstanding 8.50% Series A Capital Securities (the "Old Capital Securities" and
together with the New Capital Securities, the "Capital Securities"). The terms
and conditions of the exchange offer are set forth in a Prospectus, dated
________ __, 1997 (as the same may be amended or supplemented from time to time,
the "Prospectus"), and in the related Letter of Transmittal, which together
constitute the "Exchange Offer." The registered holders of the Capital
Securities are hereinafter referred to as the "Holders." Capitalized terms used
herein and not defined shall have the respective meanings described thereto in
the Prospectus.
On the basis of the representations, warranties and agreements of the
Company, the Trust and Wilmington Trust contained herein and subject to the
terms and conditions hereof, the following sets forth the agreement among the
Company, the Trust and Wilmington Trust as Exchange Agent for the Exchange
Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Company and the Trust hereby authorize Wilmington Trust to act as
Exchange Agent in connection with the Exchange Offer and Wilmington Trust agrees
to act as Exchange Agent in connection with the Exchange Offer. As Exchange
Agent, Wilmington Trust will perform those services as are outlined herein,
including, but not limited to, accepting tenders of Old Capital Securities, and
communicating generally regarding the Exchange Offer with brokers, dealers,
commercial banks, trust companies and other persons, including Holders of the
Old Capital Securities.
b. The Company and the Trust acknowledge and agree that Wilmington Trust
has been retained pursuant to this Agreement to act solely as Exchange Agent in
connection with the Exchange Offer, and in such capacity, Wilmington Trust shall
perform such duties in good faith as are outlined herein.
c. Wilmington Trust will establish an account with respect to the Old
Capital Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two (2) business days after
the date of the Prospectus, and any financial institution that is a participant
in the Book-Entry Transfer Facility's system may make book-entry delivery of the
Old Capital Securities by causing the Book-Entry Transfer Facility to transfer
such Old Capital Securities into Wilmington Trust's account in accordance with
the Book-Entry Transfer Facility's procedure for such transfer.
d. Wilmington Trust will examine each of the Letters of Transmittal and
certificates for Old Capital Securities and any other documents delivered or
mailed to Wilmington Trust by or for Holders of the Old Capital Securities, and
any book entry confirmations received by Wilmington Trust with respect to the
Old Capital Securities, to ascertain whether: (I) the Letters of Transmittal
and any such other documents are duly executed and properly completed in
accordance with the instructions set forth therein and that such book entry
confirmations are in due and proper form and contain the information required to
be set forth therein, (ii) the Old Capital Securities have otherwise been
properly tendered, (iii) Old Capital Securities are tendered in Liquidation
Amounts of $1,000 (1 Capital Security) and integral multiples in excess thereof,
and if any Old Capital Securities are tendered for exchange in part, the
untendered liquidation amount thereof is $100,000 (100 Capital Securities) or
any integral multiple of $1,000 in excess thereof, and (iv) Holders have
provided their correct Tax Identification Number or required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Old Capital Securities shall be made by the Company and the
Trust, which determination shall be final and binding. In each case where the
Letters of Transmittal or any other documents have been improperly completed or
executed of where book-entry conformations are not in due and proper form or
omit certain information, or any of the certificates for Old Capital Securities
are not in proper form for transfer or some other irregularity in connection
with the tender or acceptance of the Old Capital Securities exists, Wilmington
Trust will endeavor, upon request of the Company or the Trust, to advise the
tendering Holders of the irregularity and to take any other action as the
Company or the Trust may request to cause such irregularity to be corrected.
Notwithstanding the above, Wilmington Trust
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shall not be under any duty to give any notification of any irregularities in
tenders or incur any liability for failure to give any such notification.
e. With the approval of the Trust and the President, any Senior Vice
President, any Executive Vice President, any Vice President or the Treasurer or
any Assistant Treasurer of the Company, (such approval, if given orally, to be
confirmed in writing) or any other party designated by any such officer,
Wilmington Trust is authorized to waive any irregularities in connection with
any tender of Old Capital Securities pursuant to the Exchange Offer.
f. Tenders of Old Capital Securities may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Old Capital Securities shall be considered properly tendered
only when tendered in accordance with such procedures set forth therein.
Notwithstanding the provisions of this paragraph, Old Capital Securities which
the Trust and the President, any Senior Vice President, any Executive Vice
President, any Vice President or the Treasurer, any Assistant Treasurer or any
other designated officer of the Company, shall approve (such approval, if given
orally, to be confirmed in writing) as having been properly tendered shall be
considered to be properly tendered.
g. Wilmington Trust shall advise the Company and the Trust with respect to
any Old Capital Securities received as soon as possible after 5:00 p.m., New
York City time, on the Expiration Date and accept its instructions with respect
to disposition of such Old Capital Securities.
h. Wilmington Trust shall deliver certificates for Old Capital Securities
tendered in part to the transfer agent for split-up and shall return any
untendered Old Capital Securities or Old Capital Securities which have not been
accepted by the Company and the Trust to the Holders promptly after the
expiration or termination of the Exchange Offer.
i. Upon acceptance by the Company and the Trust of any Old Capital
Securities duly tendered pursuant to the Exchange Offer (such acceptance if
given orally, to be confirmed in writing), the Company and the Trust will cause
New Capital Securities in exchange therefor to be issued as promptly as
practicable and Wilmington Trust will deliver such New Capital Securities on
behalf of the Company and the Trust at the rate of $1,000 (1 Capital Security)
Liquidation Amount of New Capital Securities for each $1,000 Liquidation Amount
of Old Capital Securities tendered as promptly as practicable after acceptance
by the Company and the Trust of the Old Capital Securities for exchange and
notice (such notice if given orally, to be confirmed in writing) of such
acceptance by the Company and the Trust. Unless otherwise instructed by the
Company or the Trust, Wilmington Trust shall issue New Capital Securities only
in denominations of $1,000 (1 Capital Security) or any integral multiple of
$1,000 in excess thereof.
j. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Capital Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
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k. Notice of any decision by the Company and the Trust not to exchange any
Old Capital Securities tendered shall be given by the Company and the Trust
either orally (if given orally, to be confirmed in writing) or in a written
notice to Wilmington Trust.
l. If, pursuant to the Exchange Offer, the Company and the Trust do not
accept for exchange all or part of the Old Capital Securities tendered because
of an invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange
Offer" or otherwise, Wilmington Trust shall, upon notice from the Company and
the Trust (such notice if given orally, to be confirmed in writing), promptly
after the expiration or termination of the Exchange Offer return such
certificates for unaccepted Old Capital Securities (or effect appropriate book-
entry transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in Wilmington Trust's possession, to the
persons who deposited such certificates.
m. Certificates for reissued Old Capital Securities, unaccepted Old
Capital Securities or New Capital Securities shall be forwarded by (a) first-
class certified mail, return receipt requested under a blanket surety bond
obtained by Wilmington Trust protecting Wilmington Trust, the Company and the
Trust from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured by Wilmington Trust
separately for the replacement value of each such certificate.
n. Wilmington Trust is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other nominee or to engage or use any person to solicit
tenders.
o. As Exchange Agent, Wilmington Trust:
(i) shall have no duties or obligations other than those specifically
set forth herein or in the Prospectus or in the related Letter of
Transmittal;
(ii) will make no representations and will have no responsibilities as
to the validity, value or genuineness of any of the certificates for the
Old Capital Securities deposited pursuant to the Exchange Offer, and will
not be required to and will make no representation as to the validity,
value or genuineness of the Exchange Offer;
(iii) shall not be obligated to take any legal action hereunder which
might in Wilmington Trust's reasonable judgment involve any expense or
liability, unless Wilmington Trust shall have been furnished with indemnity
satisfactory to it and additional fees for taking of such action;
(iv) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to Wilmington Trust and
reasonably believed by Wilmington Trust to be genuine and to have been
signed by the proper party or parties;
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(v) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which Wilmington Trust
believes in good faith to be genuine and to have been signed or represented
by a proper person or persons acting in a fiduciary or representative
capacity;
(vi) may rely on and shall be protected in acting upon written or oral
instructions from the President, any Senior Vice President, any Executive
Vice President, any Vice President, the Treasurer, any Assistant Treasurer
or any other designed officer of the Company;
(vii) may consult with its own counsel with respect to any questions
relating to Wilmington Trust's duties and responsibilities and the advice
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by Wilmington
Trust hereunder in good faith and in accordance with the advice of such
counsel; and
(viii) shall not advise any person tendering Old Capital Securities
pursuant to the Exchange Offer as to whether to tender or refrain from
tendering all or any portion of its Old Capital Securities or as to the
market value, decline or appreciation in market value of any Old Capital
Securities that may or may not occur as a result of the Exchange Offer or
as to the market value of the New Capital Securities. Wilmington Trust
shall furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery or such other forms as may be approved from
time to time by the Company and the Trust, to all persons requesting such
documents from Wilmington Trust. The Company and the Trust will furnish
you with copies of such documents at your request.
p. Wilmington Trust shall advise orally and promptly thereafter confirm
in writing to the Company and the Trust and such other person or persons as the
Company and the Trust may request, daily (and more frequently during the week
immediately preceding the Expiration Date and if otherwise reasonably requested)
up to and including the Expiration Date, the aggregate principal amount of Old
Capital Securities which have been tendered pursuant to the terms of the
Exchange Offer and the items received by Wilmington Trust pursuant to the
Exchange Offer and this Agreement. In addition, Wilmington Trust will also
provide, and cooperate in making available to the Company and the Trust, or any
such other person or persons upon request (such request if made orally, to be
confirmed in writing) made from time to time, such other information in its
possession as the Company and the Trust may reasonably request. Such
cooperation shall include, without limitation, the granting by Wilmington Trust
to the Company and the Trust, and such person or persons as the Company and the
Trust may request, access to those persons on Wilmington Trust's staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Expiration Date the Company and the Trust shall have received adequate
information in sufficient detail to enable the Company and the Trust to decide
whether to extend the Exchange Offer. Wilmington Trust shall prepare a final
list of all persons whose tenders were accepted, the aggregate
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principal amount of Old Capital Securities tendered, the aggregate principal
amount of Old Capital Securities accepted and deliver said list to the Company
and the Trust.
q. Letters of Transmittal, book-entry confirmations and Notices of
Guaranteed Delivery shall be stamped by Wilmington Trust as to the date and the
time of receipt thereof and shall be preserved by Wilmington Trust as to the
date and the time of receipt thereof and shall be preserved by Wilmington Trust
for a period of time at least equal to the period of time Wilmington Trust
preserves other records pertaining to the transfer of securities, or one year,
whichever is longer, and thereafter shall be delivered by Wilmington Trust to
the Company and the Trust. Wilmington Trust shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company or the
Trust.
2. COMPENSATION.
$______ will be payable to Wilmington Trust in its capacity as Exchange
Agent; provided, that Wilmington Trust reserves the right to receive
reimbursement from the Company for any reasonable out-of-pocket expenses
incurred as Exchange Agent in performing the services described herein.
3. INDEMNIFICATION.
a. The Company and the Trust hereby agree to protect, defend, indemnify
and hold harmless Wilmington Trust against and from any and all costs, losses,
liabilities, taxes, expenses (including reasonable counsel fees and
disbursements) and claims imposed upon or asserted against Wilmington Trust on
account of any action taken or omitted to be taken by Wilmington Trust in
connection with its acceptance of or performance of its duties under this
Agreement and the documents related thereto as well as the reasonable costs and
expenses of defending itself against any claim or liability arising out of or
relating to this Agreement and the documents related thereto. This
indemnification shall survive the release, discharge, termination and/or
satisfaction of this Agreement. Anything in this Agreement to the contrary
notwithstanding, neither the Company nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of Wilmington Trust's bad faith, gross negligence or willful
misconduct. In no case shall the Company or the Trust be liable under this
indemnification agreement with respect to any claim against Wilmington Trust
until the Company and the Trust shall be notified by Wilmington Trust, by
letter, of the written assertion of a claim against Wilmington Trust or of any
other action commenced against Wilmington Trust, promptly after Wilmington Trust
shall have received any such written assertion or shall have been served with a
summons in connection therewith; provided, that, Wilmington Trust's failure to
give such notice shall not excuse the Company or the Trust from its obligations
hereunder. The Company and the Trust shall be entitled to participate at their
own expense in the defense of any such claim or other action, and, if the
Company and the Trust so elect, the Company or the Trust may assume the defense
of any pending or threatened action against Wilmington Trust in respect of
which indemnification may be sought hereunder with counsel reasonably acceptable
to Wilmington Trust; provided that the Company and the Trust shall not be
entitled to assume the defense of any such action if the named parties to such
action include the Company or the Trust and Wilmington Trust and representation
of the parties by
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the same legal counsel would, in the reasonable opinion of counsel for
Wilmington Trust, be inappropriate due to actual or potential conflicting
interests between them. In the event that the Company or the Trust shall assume
the defense of any such suit with counsel reasonably acceptable to Wilmington
Trust, the Company or the Trust, as applicable, shall not be liable for the fees
and expenses incurred by Wilmington Trust of any counsel retained by Wilmington
Trust subsequent to such assumption of defense by the Company or the Trust.
Without the prior written consent of the Company and the Trust, Wilmington Trust
will not settle, compromise or consent to the entry of any judgment in any
pending or threatened claim, action or proceeding in respect of which
indemnification could be sought in accordance with the indemnification
provisions of this Agreement (whether or not Wilmington Trust, the Company or
the Trust or any of their directors, officers and controlling persons is an
actual or potential party to such claim, action or proceeding), unless such
settlement or consent includes an unconditional release of the Company and the
Trust and their directors, officers and controlling persons from all liability
arising out of such claim, action or proceeding.
b. The Company agrees to indemnify and hold harmless the Trust from and
against any and all losses, claims, damages and liabilities whatsoever, as due
from the Trust under this Section.
4. TAX INFORMATION.
Wilmington Trust shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. Wilmington Trust understands that it may be required, in
certain instances, to deduct __% with respect to interest paid on the New
Capital Securities and proceeds from the sale, exchange, redemption or
retirement of the New Capital Securities from Holders who have not supplied
their correct Taxpayer Identification Number or required certification. Such
funds will be turned over to the Internal Revenue Service.
5. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
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6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the addresses indicated below:
If to the Company:
Commonwealth Edison Company
00 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
If to the Trust:
ComEd Financing II
c/o Commonwealth Edison Company
00 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Wilmington Trust:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administration
With a copy to:
Xxxxxxxx, Xxxxxx & Finger, P.A.
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esquire
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto expressly
agree
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that no holder of Capital Securities shall have any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which when so executed shall be deemed an original, and all of such counterparts
shall together constitute one and the same agreement. If any term or other
provision of this Agreement or the application thereof is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the agreements contained herein is
not affected in any manner adverse to any party. Upon such determination that
any term or provision or the application thereof is invalid, illegal or
unenforceable, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the agreements contained
herein may be performed as originally contemplated to the fullest extent
possible.
9. CAPTIONS. The descriptive headings contained in this Agreement are
included for convenience or reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may not be amended or modified nor may any provision hereof be
waived except in writing signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
90th day following the expiration, withdrawal, or termination of the Exchange
Offer, (b) the close of business on the date of actual receipt of written notice
by Wilmington Trust from the Company and the Trust stating that this Agreement
is terminated, (c) one year following the date of this Agreement, or (d) the
time and date on which this Agreement shall be terminated by mutual consent of
the parties hereto.
Kindly indicate your willingness to act as Exchange Agent and Wilmington
Trust's acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to the Company a copy of this Agreement so
signed, whereupon this Agreement and Wilmington Trust's acceptance shall
constitute a binding agreement among Wilmington Trust, the Company and the
Trust.
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Very truly yours,
COMMONWEALTH EDISON COMPANY
By: _______________________________
Name:
Title:
COMED FINANCING II
By: _______________________________
Name:
Title:
Accepted and agreed to as of the
date first written above:
WILMINGTON TRUST COMPANY
By: _______________________________
Name:
Title:
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