EXELON CORPORATION
PURCHASE AGREEMENT
AGREEMENT made among EXELON CORPORATION (Company) and the several
persons, firms and corporations (Purchasers) named as purchasers in Exhibit A
attached hereto as such Exhibit A may be revised from time to time and dated as
of the date of such Exhibit A.
WITNESSETH:
In consideration of the mutual covenants and agreements herein
contained and intending to be legally bound hereby, it is agreed among the
parties as follows:
SECTION 1. Registration and Issue of Debt Securities. The Company
proposes to issue, in series, an aggregate principal amount of $1,500,000,000.00
of its senior unsecured debt securities (each series and collectively, Debt
Securities), under the Indenture dated as of __________, 2001 between the
Company and ___________________________________________________, Trustee, as
supplemented and amended from time to time. The Company has filed with the
Securities and Exchange Commission (Commission) a registration statement on Form
S-3 under Rule 415 of the Securities Act of 1933, as amended (Securities Act),
relating to the Debt Securities, and such registration statement has become
effective. The Company proposes to file with the Commission, if required, a
post-effective amendment to such registration statement (Post-Effective
Amendment), or amended prospectus or prospectus supplement, including
information relating to the Purchasers, the price and terms of offering, and the
interest rate and redemption provisions and prices of the Debt Securities, as
soon as practicable after this Agreement becomes effective. Copies of such
registration statement, as amended to the date hereof, have been delivered to
the representatives of the Purchasers (Representative). Such registration
statement as amended at the time the Post-Effective Amendment, if any, shall
have become effective, or at the time this Agreement shall have become
effective, whichever is later, including the financial statements and exhibits
and each of the documents incorporated by reference in such registration
statement, is herein called the "Registration Statement," and the prospectus
relating to the Debt Securities as it may be amended or supplemented and filed
with the Commission pursuant to Rule 424(b) under the Securities Act, including
each of the documents incorporated by reference therein, is herein called the
"Prospectus." The Representative has advised the Company that the Purchasers
propose to make a public offering of the Debt Securities.
SECTION 2. Agreement and Warranty by Representative. The Representative
agrees forthwith to furnish to the Company in writing (i) such information as to
the Purchasers and the public offering of the Debt Securities as is required to
complete any Post-Effective Amendment, or amended or supplemented Prospectus,
and (ii) an appropriate consent to the filing of any Post-Effective Amendment or
Prospectus. The Representative warrants that it has been authorized by the
Purchasers to enter into this Agreement on their behalf and to act for them in
the manner herein provided.
SECTION 3. Purchase and Sale. Upon the basis of the representations and
warranties but subject to the terms and conditions herein set forth, the Company
agrees to sell to the several Purchasers and they agree to purchase from the
Company, severally and not jointly, at the price specified in Exhibit A hereto,
the respective principal amounts of Debt Securities set opposite their names in
Exhibit A.
SECTION 4. Payment for and Delivery of Debt Securities. (a) Payment of
the purchase price for the Debt Securities shall be made by or on behalf of the
several Purchasers by wire transfers payable to the order of the Company in
Federal Reserve fund at the office of ________________________
________________________________________________________________________________
at 10 A.M., ____________ Time, on the third business day following the date of
Exhibit A or at such later time and date as shall be agreed upon by the Company
and the Representative, upon delivery of the Debt Securities to the
Representative at said office (or such other place or places as shall be agreed
upon between the Company and the Representative) for the account of the several
Purchasers. The time and date of such payment and delivery is herein referred to
as the "Closing."
(b) At the Closing, the Debt Securities shall be delivered in
registered form without coupons in denominations of $1,000 or any multiple
thereof registered in such name or names as the Representative may request not
later than 5 P.M., ____________ Time, on the second full business day prior to
the Closing, or, if no such request is received, in the names of the respective
Purchasers in denominations selected by the Company. The Debt Securities, other
than Debt Securities in blank denominations, shall meet the printing and
engraving requirements of the New York Stock Exchange and the Debt Securities
shall be transferable and exchangeable as provided in the Indenture. The Company
shall make the Debt Securities available to the Representative for examination
at least 24 hours prior to the Closing.
(c) If at the Closing any Purchaser shall fail or refuse to purchase
and pay for the principal amount of Debt Securities set forth opposite its name
in Exhibit A hereto, in accordance with the terms hereof, and the aggregate
principal amount of the Debt Securities which all such defaulting Purchasers
agreed but failed to purchase is not more than one-eleventh of the aggregate
principal amount of the Debt Securities, the Company shall immediately notify
the Representative, and the amount of the Debt Securities that the remaining
Purchasers shall be obligated to purchase under this Agreement, subject to the
provisions of Section 9 hereof, shall be automatically increased pro rata to
absorb the unpurchased Debt Securities; except that in no event shall the
maximum principal amount of the Debt Securities which any Purchaser has become
obligated to purchase pursuant to Section 3 hereof be increased pursuant to this
Section 4 by more than one-tenth of such principal amount of the Debt Securities
without the written consent of such Purchaser. If any unpurchased Debt
Securities still remain, the Company may elect (i) to terminate this Agreement
by notice to the Representative; (ii) to consummate the sale except as to any
unpurchased Debt Securities so remaining; or (iii) to make arrangements within
the next succeeding 24 hours satisfactory to the remaining Purchasers for the
purchase of such Debt Securities. In any of such cases, either the
Representative or the Company shall have the right to postpone the Closing for
not more than five business days. If the Company shall not elect to consummate
the sale of less than all the Debt Securities and any unpurchased Debt
Securities remain for which no satisfactory substitute Purchaser is obtained in
accordance with the above provisions, then this Agreement shall terminate. None
of the provisions of this paragraph (c) shall in any way affect or limit the
Company's rights as against any defaulting Purchaser for damages occasioned by
such Purchaser's default hereunder.
SECTION 5. Conditions of Purchasers' Obligations. The obligations of
the several Purchasers to purchase and pay for the Debt Securities are subject
to the following conditions:
(a) At the Closing, there shall be in full force and effect an Order
issued by the Commission under the Public Utility Holding Company Act of 1935,
as amended ("PUHCA), permitting the issuance and sale of the Debt Securities and
the transactions relating thereto substantially in accordance with the terms and
conditions herein set forth and containing no provision unacceptable to the
Representative, it being understood that the Order in effect as of the date of
this Agreement (a copy of which is available at the office of the Company for
examination by the Representative) does not contain any such unacceptable
provision, and that no subsequent Notice shall be deemed to contain any such
unacceptable provision, unless the Representative, within 24 hours after
receiving a copy thereof from the Company, shall give notice to the Company to
the effect that such Notice contains an unacceptable provision.
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(b) At the Closing:
(i) no stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall
be pending before, or threatened by, the Commission;
(ii) the Indenture shall have become and be qualified under the
Trust Indenture Act of 1939, as amended (Trust Indenture Act);
(iii) subsequent to the date of the most recent financial
statements incorporated by reference in the Prospectus as of the
effective date of this Agreement, there shall have been no material
adverse change in the financial condition, business or results of
operations of the Company and its subsidiaries, considered as a whole,
except as set forth in the Registration Statement and the Prospectus,
including the documents incorporated by reference therein, as of the
effective date of this Agreement;
(iv) the Company shall have performed all agreements contained
herein to be performed by it at or prior to such date; and
(v) the representations and warranties of the Company contained
herein shall be true and correct in all material respects;
and the Representative shall have received, prior to payment for the Debt
Securities, a certificate, dated the day of the Closing and signed by the
President or a Vice President of the Company, to such effect.
(c) At the Closing and simultaneously with the issuance and sale of the
Debt Securities, the Representative shall be furnished with the following
opinions or letters, with reproduction copies or signed counterparts thereof for
each of the other Purchasers:
(i) a favorable opinion, dated the Closing date, of Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, LLP (counsel for the Company), substantially in
the form of the draft thereof heretofore made available for examination
at the office of the Company at any time during business hours;
(ii) a favorable opinion, dated the Closing date, of
______________________ (counsel for the Purchasers), substantially in
the form of the draft thereof heretofore made available for examination
at the office of the Company at any time during business hours; and
(iii) a letter of PricewaterhouseCoopers LLP, dated the Closing
date, substantially in the form of the draft thereof heretofore made
available for examination at the office of the Company at any time
during business hours.
SECTION 6. Conditions of Company's Obligations. The obligations of the
Company to deliver the Debt Securities are subject to the following conditions:
(a) At the Closing, no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for that purpose
shall be pending before, or threatened by, the Commission;
(b) At the Closing, there shall be in full force and effect an Order
issued by the Commission under PUHCA permitting the issuance and sale of the
Debt Securities and the transactions relating thereto substantially in
accordance with the terms and conditions herein set forth and containing no
provision unacceptable to the Company, it being understood that the Order in
effect as of the date of this Agreement does not contain any such unacceptable
provision, and that no subsequent Order shall be deemed to contain any such
unacceptable provision, unless the Company, within 24 hours after receiving a
copy thereof, shall have given notice to the Representative to the effect that
such notice contains an unacceptable provision.
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(c) The Indenture shall have become and be qualified under the Trust
Indenture Act; and
(d) At the Closing, the Company shall concurrently deliver and receive
payment for all of the Debt Securities unless it shall have elected to proceed
with the sale of less than all of the Debt Securities pursuant to the provisions
of paragraph (c) of Section 4 hereof.
SECTION 7. Covenants of the Company. The Company agrees as follows:
(a) The Company will file any required Post-Effective Amendment or
amended or supplemented Prospectus, as soon as practicable. Before filing any
other amendments to the Registration Statement or making any supplements to the
Prospectus, other than Securities Exchange Act of 1934, as amended (Exchange
Act), filings incorporated therein by reference, the Company will provide the
Representative with copies of any such proposed amendments or supplements, and
will not file any such amendment to which the Representative shall reasonably
object in writing.
(b) As soon as the Company is advised thereof, it will promptly advise
the Representative orally, and (if requested by the Representative) will confirm
such advice in writing, (i) when the Post-Effective Amendment, if any, has
become effective, (ii) when any other amendment to the Registration Statement
has become effective or any amendment or supplement to the Prospectus has been
filed, (iii) when any stop order has been issued under the Securities Act with
respect to the Registration Statement or any proceedings therefor have been
instituted or are threatened; and it will make every reasonable effort to secure
the prompt removal of any stop order, if issued, (iv) of the suspension of the
Debt Securities for offering or sale in any jurisdiction, and (v) of the
happening of any event during the period mentioned in subparagraph (d) below
which in the judgment of the Company makes any statement of a material fact made
in the Registration Statement or the Prospectus untrue and which requires the
making of any changes in the Registration Statement or the Prospectus in order
to make such statements therein not misleading.
(c) The Company will, at or prior to the Closing, deliver to the
Representative and also to Counsel for the Purchasers:
(i) a copy of the Registration Statement as originally filed and
of each amendment thereto, each signed by or on behalf of the proper
officers of the Company and a majority of its Board of Directors,
including financial statements and schedules, if any, all exhibits
thereto (other than those incorporated therein by reference) and all
documents incorporated therein by reference; and
(ii) such other documents (including copies of the Registration
Statement and of any amendments thereto, in each case without
exhibits), appropriately certified if so requested, relating to the
issuance and validity of the Debt Securities as the Representative and
Counsel for the Purchasers may reasonably request.
(d) Promptly after the effective date of this Agreement and extending
for any period of time thereafter (not exceeding nine months) during which a
Purchaser may be required by law to deliver a Prospectus, the Company will
furnish to the Purchasers, without charge, as many copies of the Prospectus (as
supplemented or amended if the Company shall have made any supplements or
amendments thereto) as the Representative may reasonably request. If any event
shall occur which should be set forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not misleading when it is delivered
to a Purchaser, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will, during the aforesaid period of time,
forthwith, prepare and duly file with the Commission an appropriate supplement
or amendment thereto, and will at its expense, prepare and furnish to the
Representative such reasonable number of copies thereof as the Representative
shall reasonably request. If any Purchaser is required to deliver a Prospectus
after the expiration of the aforesaid period, the Company will, if requested by
the Representative and in each case at the expense of
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such Purchaser, furnish Prospectuses and supplements and amendments thereto, as
aforesaid, or furnish a reasonable quantity of a supplemented prospectus or of
supplements to the Prospectus complying with Section 10(a)(3) of the Securities
Act.
(e) The Company will make generally available to its security holders a
consolidated earnings statement (which need not be audited) for the twelve
months ended _____________, or, if later, for the twelve months ended after the
date deemed to be the effective date of the Registration Statement pursuant to
Rule 158 promulgated under the Securities Act, or successor provision of law,
rule or regulation, as soon as is reasonably practicable after the end of such
period, which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act.
(f) So long as any of the Debt Securities shall remain outstanding, the
Company will furnish to each Purchaser, upon request, (i) a copy of the annual
financial statements of the Company and consolidated subsidiaries, including
balance sheets and statements of income, retained earnings and changes in cash
flows, in the form made generally available to investors and other interested
persons, and (ii) copies of such documents, reports and other information as may
be required under the Indenture to be furnished to holders of the Debt
Securities.
(g) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement and the Prospectus; the
issuance and delivery of the Debt Securities; the preparation of the Indenture
and indentures supplemental thereto; the printing and delivery of copies of the
Registration Statement, the Prospectus, the preliminary and final forms of the
"Blue Sky" memorandum and the legal investment opinion, if any; the listing, if
any, of the Debt Securities on the New York, [American] and [Philadelphia] Stock
Exchanges; and the rating of the Debt Securities by any securities rating
agency; and will pay all federal and other taxes (except transfer taxes) on the
issuance of the Debt Securities. The Company will not be required to pay any
amount for any expenses of the Representative or any of the Purchasers or
compensation and disbursements of Counsel for the Purchasers, except as provided
in Section 9(c) hereof.
(h) The Company will cooperate with the Representative and Counsel for
the Purchasers to qualify the Debt Securities for offer and sale by the
Purchasers and dealers selected by them under the securities or "Blue Sky" laws
of such jurisdictions as the Representative may designate, provided that the
Company shall not be required to qualify as a foreign corporation in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it is not now
so subject.
SECTION 8. Representations and Warranties; Indemnification.
(a) The Company represents and warrants to each Purchaser that:
(i) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were filed
(or, if an amendment with respect to any such document was filed or
became effective, when such amendment was filed or became effective)
with the Commission, as the case may be, conformed in all material
respects to the requirements of the Exchange Act and the rules and
regulations thereunder, and any further documents so filed and
incorporated by reference will, when they become effective or are filed
with the Commission, as the case may be, conform in all material
respects to the requirements of the Exchange Act and the rules and
regulations thereunder; none of such documents, when it became
effective or was filed (or, if an amendment with respect to any such
documents was filed or became effective, when such amendment was filed
or became effective) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and no such further
document, when it becomes effective or is filed, will contain an untrue
statement of a material fact or will omit to state a material fact
required to be
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stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(ii) the Registration Statement, when it became effective, and the
Prospectus included therein, as it may be amended or supplemented to
the date of this Agreement, complied, and the Post-Effective Amendment,
if any, when it becomes effective, or any amendment or supplement to
the Prospectus when filed, will comply in all material respects with
the applicable provisions of the Securities Act and of the Trust
Indenture Act, and relevant rules and regulations of the Commission
under said Acts, the Registration Statement, when it became effective,
did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus did not
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except that this representation and
warranty shall not apply to statements in or omissions from the
Registration Statement and the Prospectus made in reliance upon and in
conformity with information furnished herein or otherwise in writing to
the Company by any Purchaser or by the Representative on behalf of any
Purchaser expressly for use in the Registration Statement or the
Prospectus or to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture;
(iii) PricewaterhouseCoopers LLP are independent certified public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder;
(iv) the Company is a validly subsisting corporation in good
standing under the laws of the Commonwealth of Pennsylvania. Each of
the Company's subsidiaries which constitutes a "gas utility company" or
an "electric utility company," as defined in the Public Utility Holding
Company Act of 1935, as amended (Utility Subsidiary), is a validly
existing corporation under the laws of its jurisdiction of
incorporation. The Company and each Utility Subsidiary have all
requisite corporate power and authority to own and occupy their
respective properties and carry on their respective businesses as
presently conducted and as described in the Prospectus and are duly
qualified as foreign corporations to do business and in good standing
in every jurisdiction in which the nature of the business conducted or
property owned by them makes such qualification necessary and in which
the failure to so qualify would have a materially adverse effect on the
Company;
(v) the issuance and sale of the Debt Securities and the
fulfillment of the terms of this Agreement and the compliance by the
Company with all the terms and provisions of the Indenture will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Company's Amended and Restated Articles of
Incorporation or Bylaws or those of any subsidiaries listed in Exhibit
B or any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any such subsidiary is now a party,
or any effective order of any court or administrative agency entered in
any proceedings to which the Company was or is now a party or by which
it is bound;
(vi) the Debt Securities and the Indenture have been duly
authorized by the Company and will conform to the description thereof
in the Prospectus; and
(vii) except for (a) the orders of the Commission making the
Registration Statement effective, (b) the Order of the Commission under
PUHCA authorizing the Company to issue and sell the Debt Securities as
contemplated by this Agreement, (c) permits and similar authorizations
required under the securities or "Blue Sky" laws of any jurisdiction,
and (d) to the extent, if any, required pursuant to the Undertakings
set forth in Part II of the Registration Statement, no
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consent, approval, authorization or other order of any governmental
authority is legally required for the valid issuance and sale of the
Debt Securities.
(b) The Company agrees to indemnify and hold harmless 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 from and
against any and all losses, claims, damages, liabilities and expense caused by
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or in the Registration Statement or in the Prospectus
(as amended or supplemented if the Company shall have made any amendments or
supplements thereto and if used within any period during which a Purchaser may
be required by law to deliver a Prospectus) or any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make statements therein not misleading, all in light of the circumstances under
which they were made with respect to the Prospectus, except insofar as such
losses, claims, damages, liabilities or expenses are caused by (i) any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished herein or otherwise in writing to the Company by any
Purchaser or by the Representative on behalf of any Purchaser expressly for use
therein, or (ii) by any statements or alleged statements in or omissions or
alleged omissions from the Statement of Eligibility and Qualification of the
Trustee under the Indenture, or (iii) the failure of any Purchaser to send to
any purchaser to whom it had sent a preliminary prospectus an amended prospectus
together with such summary of material changes, if any, made therein since the
date of such preliminary prospectus as shall have been furnished by the Company
for such purpose, or (iv) any use of the Prospectus by any Purchaser after the
expiration of that period, if any, during which the Purchaser is required by law
to deliver a prospectus, unless the Company shall have been advised in writing
of such intended use. The term "preliminary prospectus" as used in this
paragraph includes the prospectus first complying with Section 10(a) of the
Securities Act.
(c) Each Purchaser agrees that, promptly upon the receipt of notice of
the commencement of any action or proceeding (including any governmental action)
against such Purchaser or against any person so controlling such Purchaser in
respect of which indemnity or reimbursement may be sought from the Company on
account of its agreement in the next preceding paragraph (b), timely notice will
be given to the Company of the commencement thereof. Thereupon, the Company
shall be entitled to participate in (and, to the extent that it shall desire,
including the selection of counsel reasonably satisfactory to such Purchaser or
controlling person, to direct) the defense thereof and shall in any event be
liable to pay all fees and expenses thereof. Any Purchaser or any such
controlling person shall have the right to employ separate counsel, but if the
Company has selected counsel in any such case, such employment by a Purchaser or
controlling person shall be at its expense unless (i) the employment of such
separate counsel has been authorized in writing by the Company and the Company
shall have agreed to pay such expense or (ii) the Company and the Purchaser or
controlling person shall have received an opinion of counsel stating that the
representation of both parties by the same counsel would be inappropriate due to
actual differing defenses between them. It is understood that the Company shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such Purchasers and controlling
persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Such counsel shall be designated in writing by the Representative and
consented to by the Company, which consent shall not be unreasonably withheld.
The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless each Purchaser and
any such controlling person from and against any loss or liability by reason of
such settlement or judgment. The Company shall not, without the prior written
consent of any such Purchaser or controlling person, effect any settlement of
any pending or threatened proceeding in respect of which any such Purchaser or
controlling person is or could have been a party and indemnity could have been
sought hereunder by any such Purchaser or controlling person, unless such
settlement includes an
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unconditional release of any such Purchaser or controlling person from all
liability on claims that are the subject matter of such proceeding.
(d) Each Purchaser agrees to indemnify and hold harmless the Company
and its controlling persons, directors, and officers to the same extent as the
foregoing indemnity from the Company to each Purchaser, but only with respect to
any untrue statement or omission or alleged untrue statement or omission based
upon information furnished herein or in writing to the Company by such
Purchaser, or by the Representative on behalf of such Purchaser, expressly for
use in such Registration Statement or Prospectus. In case any action shall be
brought against the Company or any such controlling person, director or officer
in respect of which he or it may seek indemnity or reimbursement from any
Purchaser on account of the agreement of such Purchaser contained in this
paragraph (d), the Purchaser shall have the rights and duties given to the
Company, and the Company and any such controlling person, director or officer
shall have the rights and duties given to the Purchaser, by the next preceding
paragraph (c).
(e) In order to provide for just and equitable contribution in
circumstances in which any indemnity provision provided for in this Section 8 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms (including the requirements of Section
8(c)), then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, liabilities, claims, damages and expenses of the
nature contemplated in said indemnity provision in such proportion as is
equitable and as shall reflect both the relative benefit received by the Company
on the one hand and the Purchaser or Purchasers, as the case may be, on the
other hand from the offering of the Debt Securities, and the relative fault, if
any, of the Company on the one hand and of the Purchaser or Purchasers, as the
case may be, on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative benefit received by
the Company on the one hand and the Purchaser or Purchasers, as the case may be,
on the other hand in connection with the offering of the Debt Securities shall
be deemed to be in the same proportion as the total net proceeds from the
offering of such Debt Securities (before deducting expenses) received by the
Company bear to the total commissions, concessions and discounts received by the
Purchaser or Purchasers, as the case may be. The relative fault shall be
determined by reference to, among things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Purchaser or the Purchasers on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Purchasers agree that it would
not be just and equitable if contribution pursuant to this paragraph (e) were
determined by pro rata allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to hereinabove. The amount
paid or payable by an indemnified party as a result of the losses, liabilities,
claims, damages and expenses referred to hereinabove shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. No Purchaser or person
controlling such Purchaser shall be obligated to make contribution hereunder
which in the aggregate exceeds the total public offering price of the Debt
Securities purchased by such Purchaser under this Agreement, less the aggregate
amount of any damages which such Purchaser and its controlling persons have
otherwise been required to pay in respect of the same claim or any substantially
similar claim. The Purchasers' obligations to contribute are several in
proportion to their respective purchasing obligations and not joint.
SECTION 9. Termination and Survival. (a) This Agreement may be
terminated by notice to the Company at any time prior to the expiration of 24
hours after the Post-Effective Amendment, if any, shall have become effective
(but not after the initial public offering of the Debt Securities), by the
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Representative, with the consent of Purchasers who have agreed to purchase in
the aggregate 50% or more of the principal amount of the Debt Securities if, on
or prior to such date, there shall have occurred any of the following: (i)
trading in securities on the New York Stock Exchange shall have been suspended
or materially limited, or minimum prices have been established on such Exchange,
or any new restrictions on transactions in securities materially affecting the
free market shall have been established by such Exchange, by the Commission, by
any other federal or state agency, by action of the Congress or by Executive
Order; (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities; or
(iii) there shall have occurred any outbreak or escalation of hostilities or any
calamity or crisis of comparable magnitude that, in the judgment of the
Representative, is material and adverse and such event specified in this clause
(iii) in the reasonable judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Debt
Securities on the terms and in the manner contemplated in the Prospectus as
amended or supplemented. The time of the initial public offering for the purpose
of this Section 9 shall be deemed to be the time of the release by the
Representative for publication of a newspaper advertisement referring to the
Debt Securities which is subsequently published, or the time at which the Debt
Securities are first generally offered by the Purchasers to the public or to
dealers by letter or telegram or otherwise, whichever shall first occur.
(b) This Agreement shall terminate:
(i) if any unpurchased Debt Securities remain for which no
substitute Purchaser is obtained in accordance with the provisions of
Section 4(c) hereof, and the Company shall not elect to proceed with
the sale and delivery hereunder of less than all of the Debt
Securities;
(ii) if any of the conditions specified in Section 5 hereof shall
not have been fulfilled and the Representative shall give notice to the
Company that this Agreement is terminated by reason thereof; or
(iii) if any of the conditions specified in Section 6 hereof shall
not have been fulfilled and the Company shall give notice to the
Representative that this Agreement is terminated by reason thereof.
(c) If this Agreement shall terminate as provided in Section 9(a) or
(b), no Purchaser shall be under any liability to the Company, and the Company
shall not be under any liability to any Purchaser except:
(i) as specifically provided in the last sentence of Section 4(c);
(ii) as provided in Section 9(d); and
(iii) that the Company shall, unless such termination shall be
under the provisions of Section 9(b)(i), pay the Representative, for
the account of the Purchasers severally, the amount of their
out-of-pocket expenses (but not exceeding $5,000, in the aggregate, in
addition to the fee and disbursements of Counsel for the Purchasers, a
statement of the amount of such fee and estimate of such disbursements
having been furnished to the Company) reasonably incurred by the
Purchasers hereunder.
The Company will not in any event be liable to any of the several Purchasers for
damages on account of loss of anticipated profits.
(d) The agreements, representations and warranties set forth in
Sections 7 and 8 hereof shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Purchaser or
controlling person or by or on behalf of the Company or any person controlling
the Company, and regardless of acceptance of any payment for the Debt Securities
hereunder; and the
9
agreements, representations and warranties set forth in Sections 7(g) and 8
hereof shall remain operative and in full force and effect, regardless of
termination hereof as above provided or otherwise.
SECTION 10. Notices. All notices and other communications hereunder
shall be in writing (or where oral notice is specified, shall be promptly
confirmed in writing) and, if to the Representative or Purchasers, shall be
mailed with first class postage prepaid, or delivered to the Representative at
its address set forth in Exhibit A hereto and, if to the Company, shall be so
mailed to __________________,_________________________________________
________________________________________________________________________.
SECTION 11. Validity and Interpretation. The validity, construction and
interpretation of this Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania. If signed by a single person, firm or corporation,
as used herein the term "Purchaser" shall mean such single person, firm or
corporation, the term "Representative" shall mean such Purchaser, the term
"Purchasers" shall be read in the singular to mean such Purchaser, and the
provisions of this Agreement shall be deemed appropriately modified to reflect
that it, is an Agreement between the Company and a single Purchaser.
SECTION 12. Succession. This Agreement shall inure to the benefit of
the Company, of the several Purchasers, and with respect to paragraphs (b), (c),
(d) and (e) of Section 8 hereof, of each controlling person and of each director
and officer of the Company or of the several Purchasers referred to in said
paragraphs, and, in each case, their respective successors, assigns, executors
and administrators. Nothing in this Agreement is intended or shall be construed
to give to any other person, firm or corporation any legal or equitable right,
remedy or claim under or in respect to this Agreement or any provision herein
contained. The terms "successors" and "assigns" as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Debt Securities from
any of the several Purchasers.
SECTION 13. Effective Date. This Agreement shall become effective upon
the execution of Exhibit A hereto.
10
EXHIBIT A
to
PURCHASE AGREEMENT
Dated: _____________, 2____
Subject to all the terms and conditions of the Purchase Agreement, the
Company agrees to sell to each Purchaser named below, for whom the undersigned
Representative is acting as Representative, and each Purchaser agrees, severally
and not jointly, to purchase from the Company, subject to all the terms and
conditions of the Purchase Agreement, the principal amount of Debt Securities
set forth opposite the name of such Purchaser, to be issued under the Indenture,
including indentures supplemental thereto, as follows:
Series of Debt Securities Interest Rate Per Annum Price Per Debt Security Date of Issuance
------------------------- ----------------------- ----------------------- ----------------
The undersigned represents and warrants that it has been and is fully
authorized by all the Purchasers named below to enter into the Purchase
Agreement, including this Exhibit A, which is attached thereto and made a part
thereof, on their behalf.
Principal Amount
Name of Purchaser of Debt Securities
--------------
Total: $
==============
Pursuant to Section 10 of the Purchase Agreement, notice to the
Representative shall be given to _______________, as Representative, at
_________________.
Executed as of the date first above mentioned, on behalf of the
Representative and the other several Purchasers named above.
------------------------------------
(Name of Representative)
BY:_________________________________
EXELON CORPORATION
BY:________________________________
