EXHIBIT 1.1
PECO ENERGY COMPANY
First and Refunding Mortgage Bonds, % Series Due 20
Underwriting Agreement
New York, New York
, 20
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
PECO Energy Company, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $ principal amount of the
Company's First and Refunding Mortgage Bonds, % Series due 20 (the
"Securities"). The Securities are to be issued under the Company's First and
Refunding Mortgage, dated as of May 1, 1923 (the "Mortgage"), as amended and
supplemented through the date hereof, and as further amended by the Supplemental
Indenture, dated as of , 2002 (the "Supplement"), between the Company and
First Union National Bank, as trustee (the "Trustee"). The Mortgage, together
with any and all amendments or supplements thereto, including the Supplement,
are referred to herein collectively as the "Indenture". To the extent there are
no additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
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(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance with Rules 430A
and 424(b), as applicable, (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form of
final prospectus supplement) or (3) after the Effective Date of such
registration statement, a final prospectus in accordance with Rules 415 and
424(b). In the case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be included in
such registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date and at the Execution Time, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust
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Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act.
(d) The Company has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(e) The Company has been duly organized and is validly subsisting
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania with full power and authority under its articles of
incorporation and bylaws to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign entity
and is in good standing under the laws of each jurisdiction which
requires such qualification.
(f) Except as disclosed in the Company's Form 10-K, the Company
does not have any significant subsidiaries (as such term is defined in
Rule 1.02 of Regulation S-X promulgated under the Act).
(g) The statements in the Prospectus under the headings
"Description of the Bonds" and fairly summarize the matters therein
described.
(h) This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized and,
assuming due authorization, execution and delivery of the Supplement by
the Trustee, when executed and delivered by the Company, will
constitute a legal, valid, binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); the
Securities have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, will have been duly
executed and delivered by the Company and will constitute the legal,
valid and binding obligations of the Company entitled to the benefits
of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
(i) The Pennsylvania Public Utility Commission has entered an
appropriate
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order authorizing the Company to issue and sell the Securities as
contemplated herein; such order is in full force and effect and no
proceeding has been initiated upon appeal from or to review the
effectiveness of such order. No other consent, approval, authorization,
filing with or order of any court or state or federal governmental
agency or body, including the Commission and any applicable state
regulatory authority, is required in connection with the transactions
contemplated herein or in the Indenture, except such as will be
obtained under the Act, the Trust Indenture Act and the Pennsylvania
Public Utility Code, and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(j) Neither the execution and delivery of this Agreement, nor the
consummation of any of the transactions herein contemplated, nor the
fulfillment of the terms hereof will conflict with, result in a breach
or violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company (other than the lien of the
Indenture) pursuant to, (i) the charter or bylaws of the Company; (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company is a party or
bound or to which its property is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the
Company or any of its subsidiaries or any of its or their properties.
(k) The Company has good and sufficient title to all property
described or referred to in the Indenture and purported to be conveyed
thereby, subject only to the lien of the Indenture and excepted
encumbrances as therein defined (except as to property released from
the lien of the Indenture in connection with the sale or other
disposition thereof, and certain other exceptions which are not
material in the aggregate).
(l) The consolidated historical financial statements and
schedules of the Company and its consolidated subsidiaries incorporated
by reference in the Final Prospectus present fairly in all material
respects the financial condition, results of operations and cash flows
of the Company as of the date and for the period indicated, comply as
to form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles; and the selected historical financial data set forth under
the caption "Selected Historical Financial Data" in the Final
Prospectus fairly present, on the basis stated in the Final Prospectus,
the information included therein.
(m) 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 or its or their property is pending
or, to the best knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the Indenture, or the consummation of
any of the
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transactions contemplated hereby or thereby; or (ii) could reasonably
be expected to have a material adverse effect on the financial
condition, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any amendment or supplement
thereto).
(n) PricewaterhouseCoopers, LLP, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(o) The Company is a "public utility company" as defined in the
Public Utility Holding Company Act of 1935, as amended ("PUHCA").
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus
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or any Preliminary Final Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement unless the Company has furnished you
a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Final Prospectus is otherwise required under Rule 424(b), the Company
will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when
the Registration Statement, if not effective at the Execution Time,
shall have become effective, (2) when the Final Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Final Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
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(d) The Company will furnish to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will pay any fee of the National Association of Securities Dealers,
Inc., in connection with its review of the offering; provided that in
no event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
[Name of lead Representative], offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company,
directly or indirectly, or announce the offering of, any long-term debt
securities issued or guaranteed by the Company or preferred stock
(other than the Securities), until the Business Day set forth on
Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation of the Supplement, the
issuance of the Securities and the fees of the Trustee; (ii) the
preparation, printing or reproduction of the Registration Statement,
Preliminary Final Prospectus and Final Prospectus and each amendment or
supplement to either of them; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Preliminary Final
Prospectus and Final Prospectus, and all amendments or supplements to
either of them, as may, in each case, be reasonably requested for use
in connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance
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and sale of the Securities; (v) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (vi) any registration
or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vii)
the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (viii) the fees and expenses of the
Company's accountants and counsel (including local and special
counsel); (ix) the fees and expenses of any rating agencies rating the
Securities and (x) all other costs and expenses incident to the
performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior
to the Execution Time, unless the Representatives agree in writing to a
later time, the Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior
to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, counsel for the
Company, shall have furnished to the Representatives its opinion, dated
the Closing Date and addressed to the Representatives, to the effect
that:
(i) the Company has been duly organized and is validly
subsisting as a corporation under the laws of the Commonwealth of
Pennsylvania, with full corporate power and authority under its
articles of incorporation to own or lease, as the case may be,
and to operate its properties and conduct its business as
described in the Final Prospectus;
(ii) the Indenture is in due and proper form and has been
duly and validly authorized by the necessary corporate action, by
orders duly entered from
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time to time by the Pennsylvania Public Utility Commission and has been
qualified under the Trust Indenture Act and no other authorization,
approval, consent, certificate or order of any other state commission
or regulatory authority or of any federal commission or regulatory
authority having been required in respect of the execution and delivery
of the Indenture; the Indenture has been duly and validly executed and
delivered and is a valid and enforceable instrument in accordance with
its terms except as the enforceability thereof may be limited by (1)
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or similar laws of general applicability relating or affecting the
creditors' rights, (2) applicable state laws which may affect the
remedies provided for in the Indenture without, however, rendering
inadequate, in such counsel's opinion, the remedies available to the
Trustee for the practical realization of the benefit of the security
intended to be afforded thereby, and (3) general equitable principles,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing;
(iii) the Securities are in due and proper form; the issue and
sale of the Securities by the Company in accordance with the terms of
this Agreement have been duly and validly authorized by the necessary
corporate action and by orders duly entered by the Pennsylvania Public
Utility Commission, no authorization, approval, consent, certificate or
order of any other state commission or regulatory authority or of any
federal commission or regulatory authority having been required in
respect of such issue and sale; the Securities, when duly executed,
authenticated and delivered to the Underwriters against payment of the
agreed consideration therefor, will be valid and enforceable
obligations of the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing;
(iv) the Company has title in fee simple to the real property
comprising its important properties (including interests in properties
owned as tenant-in-common but not including certain of its properties
held for electric or gas transmission lines or water pipelines, which
consist of right-of-way easements, and leased properties), free and
clear of liens and encumbrances except (A) the lien of the Indenture,
(B) "excepted encumbrances" as defined in the Indenture, (C) liens,
encumbrances and title defects not discoverable by a diligent search of
the public land records and judgment indexes, and (D) certain other
minor exceptions, restrictions, encumbrances and defects which are of a
nature found in properties of similar character and magnitude, and
which, in such counsel's opinion, do not in any substantial way impair
the security afforded by the Indenture; the property descriptions in
the Indenture (including the general granting clauses) are legally
sufficient to constitute the Indenture a lien on all real
10
property presently owned by the Company and described therein as
subject to the lien thereof; and the real and personal properties
described in the Indenture constitute substantially all the permanent
physical properties and franchises of the Company except (x) such
property as has been duly released from the lien of the Indenture, and
(y) certain other classes of property expressly excepted in the
Indenture;
(v) subject to minor exceptions which, in such counsel's opinion,
do not in any substantial way impair the security afforded by the
Indenture, (A) the Indenture constitutes a valid first mortgage lien of
record upon all real property presently owned by the Company described
therein as subject to the lien thereof (other than properties expressly
excepted therefrom, properties properly released from the lien thereof
pursuant to the terms thereof and substantially all of the Company's
leaseholds), except only as stated in sub-clauses (B), (C), and (D) of
paragraph (v), and the after-acquired property clauses of the Indenture
are effective, according to their terms, to subject to the lien of the
Indenture all after-acquired real property of the Company located in
the Commonwealth of Pennsylvania, subject (x) to such encumbrances as
may exist thereon at the time of the acquisition thereof and (y) to the
due recordation of the Indenture in the counties in which such
after-acquired properties are located; and (B) the Securities are
secured by a valid and, to the extent that it may be perfected by
filing under the Uniform Commercial Code, a perfected security interest
in such of the personal property of the Company as is described in the
Indenture, whether such personal property is now owned or hereinafter
acquired by the Company (other than properties expressly excepted
therefrom; properties released from the security interest created
thereby; "proceeds" as defined in the Uniform Commercial Code to the
extent limited by the terms of Section 9-315 of the Uniform Commercial
Code; after-acquired property subject to Section 552 of the Federal
Bankruptcy Code; property sold to a buyer in the ordinary course of
business, licensed to a licensee in the ordinary course of business or
leased to a lessee in the ordinary course of business; insurance
policies (except to the extent that payments thereunder are "proceeds",
as defined in the Uniform Commercial Code); and contract rights or
general intangibles which by their terms, or by law, are not
assignable), which security interest is prior to any other security
interest other than (1) "excepted encumbrances" as defined in the
Indenture, (2) rights created and security interests perfected other
than by filing pursuant to the Uniform Commercial Code, (3) present or
future purchase money security interests, (4) security interests in
collateral which qualifies for priority over a conflicting security
interest as provided in Sections 9-322, 9-328, 9-329, 9-330 and 9-331
of the Uniform Commercial Code, (5) security interests perfected under
a certificate of title statute with respect to property that becomes an
accession under Section 9-335 of the Uniform Commercial Code, and (6)
perfected security interests to which property hereafter acquired by
the Company is subject at the time of such acquisition; such counsel
need express no opinion as to any actions
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that may be required to be taken periodically under the Uniform
Commercial Code or other applicable law in order for the validity or
perfection of any security interest to be maintained;
(vi) to the knowledge of such counsel, there are no material
pending legal proceedings to which the Company or any subsidiary is a
party and which are required to be set forth in the documents
incorporated by reference in the Registration Statement and Prospectus
other than those referred to in such documents; and the statements in
the Final Prospectus under the headings "Description of the Bonds" and
fairly summarize the matters therein described;
(vii) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement
has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; and such counsel has no reason to
believe that on the Effective Date or the date the Registration
Statement was last deemed amended the Registration Statement contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final Prospectus as of
its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case,
other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion);
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(x) the Pennsylvania Public Utility Commission has entered an
appropriate order authorizing the Company to issue and sell the
Securities as contemplated herein; such order is in full force and
effect and, to the best of such counsel's knowledge after due inquiry,
no proceeding has been initiated upon
12
appeal from or to review the effectiveness of such order; no other
consent, approval, authorization, filing with or order of any court or
state or federal governmental agency or body is required in connection
with the transactions contemplated herein or in the Indenture, except
such as have been obtained under the Act, the Trust Indenture Act, and
from the Pennsylvania Public Utility Commission, and such as may be
required under the blue sky or securities laws of any jurisdiction in
connection with the purchase and sale of the Securities by the
Underwriters in the manner contemplated in this Agreement and the Final
Prospectus and such other approvals (specified in such opinion) as have
been obtained;
(xi) neither the execution and delivery of this Agreement or the
Supplement, nor the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms hereof or thereof
will conflict with, result in a breach or violation of, or imposition
of any lien, charge or encumbrance upon any property or asset of the
Company (other than the lien of the Indenture) pursuant to, (i) the
articles of incorporation and bylaws of the Company; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or to
which its property is subject that is known to such counsel; or (iii)
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its properties; and
(xii) (xii) the Company is a "public utility company" as defined
in PUHCA.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Pennsylvania or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from Winston & Xxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date
and addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Indenture, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
13
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall
have requested and caused PricewaterhouseCoopers, LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the Representatives.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting the
financial condition, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto).
(g) On the Closing Date, (i) the Securities shall be rated " " by
Xxxxx'x Investors Service, Inc., " " by Standard & Poor's Rating Services and "
" by Fitch, Inc.,
14
respectively, and the Company shall have delivered to the
Representatives evidence satisfactory to the Representatives confirming
that the Securities have such ratings, and (ii) since the Execution
Time, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's first mortgage bonds
or commercial paper by any "nationally recognized statistical rating
agency", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Act, and no such securities rating agency shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of the Securities or any of
the Company's other debt securities.
(h) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Company, at Xxxxxxx Xxxxx Xxxxxxx &
Xxxxxxxxx, LLP, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through [Name of lead Representative] on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities, when it became effective, or a post-effective amendment to the
15
registration statement for the registration of the Securities, if any, when it
became effective, (ii) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Basic Prospectus,
the Preliminary Final Prospectus or the Final Prospectus (as amended or
supplemented if the Company shall have made any amendments or supplements
thereto and if used within any period during which an Underwriter may be
required by law to deliver a prospectus), in light of the circumstances under
which they were made, (iii) arise out of or are based upon the omission or
alleged omission to state in the Basic Prospectus, the Preliminary Final
Prospectus or the Final Prospectus (as amended or supplemented if the Company
shall have made any amendments or supplements thereto and if used within any
period during which an Underwriter may be required by law to deliver a
prospectus) a 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, or (iv) arise out of or are based upon the omission or
alleged omission to state in the registration statement for the registration of
the Securities, when it became effective, or a post-effective amendment to the
registration statement for the registration of the Securities, if any, when it
became effective, a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided, further, that the foregoing indemnity with respect to any
untrue statement contained in or omission from the Basic Prospectus or the
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any of the directors, officers, employees and agents of such Underwriter or
any person controlling such Underwriter) (i) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Basic Prospectus or Preliminary Final Prospectus
was corrected in the Final Prospectus (or the Final Prospectus as so amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), and it is finally judicially determined that such delivery was
required to be made under the Act and was not so made, or (ii) who uses the
Final Prospectus after the expiration of that period, if any, during which the
Underwriter is required by law to deliver a prospectus, unless the Company shall
have been advised in writing of such intended use. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the
16
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in Section 8(a) above.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the statements set
forth in the last paragraph of the cover page regarding delivery of the
Securities and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each
17
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms (including
the requirements of Section 8(c) above), the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder; provided, further, that each Underwriter's obligation to
contribute to Losses hereunder shall be several and not joint. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Company and the Underwriters severally shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance
18
of its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the principal amount of Securities set forth opposite their
names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the common stock of Exelon Corporation shall
have been suspended by the Commission or the New York Stock Exchange, or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to ; or, if sent to the Company, will be mailed,
delivered or telefaxed to Exelon Corporation, 00 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Floor, X.X. Xxx 000000, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Vice President
and Treasurer (fax no.: (000) 000-0000) and confirmed to the General Counsel
(fax no.: (000) 000-0000).
13. Successors. This Agreement will inure to the benefit of and
be binding upon
19
the parties hereto and their respective successors and the officers, directors,
employees, agents and controlling persons referred to in Section 8 hereof, and
no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating
to the Securities that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"Investment Company Act" shall mean the Investment Company Act of
1940, as
20
amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such
Rule 462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
as amended and the rules and regulations of the Commission promulgated
thereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
PECO ENERGY COMPANY
By:_____________________________
Name:
Title:
21
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Representatives]
By: [Lead Representative]
By: ___________________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 20 at 10:00 a.m. at
Type of Offering: Non-delayed
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s):
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
$
----------------
Total ................... $
================
