EXHIBIT 1.1
COMED TRANSITIONAL FUNDING TRUST
TRANSITIONAL FUNDING TRUST NOTES, SERIES 1998
COMMONWEALTH EDISON COMPANY
UNDERWRITING AGREEMENT
New York, New York
__________, 1998
To the Representative[s]
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
1. INTRODUCTION. ComEd Transitional Funding Trust, a Delaware
business trust (the "Note Issuer"), proposes to sell to the underwriters named
in Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount and class of ComEd
Transitional Funding Trust Notes, Series 1998 identified in Schedule I hereto
(the "Notes"). If the firm or firms listed in Schedule I hereto include only
the firm or firms listed in Schedule II hereto, then the terms "Underwriters"
and "Representatives", as used herein, shall each be deemed to refer to such
firm or firms.
The Note Issuer was formed pursuant to a declaration of trust dated as
of ____________, 1998 by First Union Trust Company, National Association, as
Delaware trustee (the "Delaware Trustee"), and ▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, each as a beneficiary trustee (collectively, the "Beneficiary
Trustees"), and the Notes will be issued pursuant to an Indenture dated as
of _____________, 1998 (as amended and supplemented from time to time,
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including all Series Supplements and Trustee's Issuance Certificates, the
"Indenture"), between the Note Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, a
banking corporation organized under the laws of the State of Illinois, as
indenture trustee (the "Indenture Trustee"). The Notes will be secured
primarily by, and payable solely from, Intangible Transition Property created
by an order of the Illinois Commerce Commission (the "ICC") dated July 21,
1998 in Docket No. 98-0319 (the "1998 Funding Order") in accordance with
Article XVIII of the Illinois Public Utilities Act. In the 1998 Funding
Order such Intangible Transition Property was granted to ComEd Funding, LLC,
a Delaware limited liability company (the "Grantee"), and the Grantee
assigned its rights in, to and under such Intangible Transition Property and
other related assets to the Note Issuer. Pursuant to the Indenture, the Note
Issuer has granted to the Indenture Trustee, as trustee for the benefit of
the holders of the Notes, all of its right, title and interest in and to the
Intangible Transition Property as security for the Notes. The Intangible
Transition Property will be serviced pursuant to an Intangible Transition
Property Servicing Agreement dated as of ___________, 1998 (as amended and
supplemented from time to time, the "Servicing Agreement"), between
Commonwealth Edison Company, an Illinois corporation ("ComEd"), as servicer,
and the Grantee. ComEd is a wholly-owned subsidiary of Unicom Corporation,
an Illinois corporation ("Unicom").
Capitalized terms used and not otherwise defined herein shall have
the respective meanings given to them in the Indenture.
2. REPRESENTATIONS AND WARRANTIES. Each of ComEd and the Note
Issuer represents and warrants to, and agrees with, each Underwriter as set
forth below in this Section 2. Certain terms used in this Section 2 are
defined in paragraph (c) hereof.
(a) If the offering of the Notes is a Delayed Offering (as specified
in Schedule I hereto), paragraph (i) below is applicable and, if the
offering of the Notes is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Note Issuer and the Notes meet the requirements for the
use of Form S-3 under the Securities Act of 1933 (the "Act"), and the
Note Issuer has filed with the Securities and Exchange Commission (the
"SEC") a registration statement (file number 333-60907) on such Form,
including a basic prospectus, for registration under the Act of the
offering and sale of the Notes. The Note Issuer may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you. Such
registration statement, as so amended, and in the form heretofore
delivered to you, has become effective. The offering of the Notes is
a Delayed Offering and, although the Basic Prospectus may not include
all the information with respect to the Notes and the offering thereof
required by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included
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therein as of the Effective Date. The Note Issuer will next file
with the SEC pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such registration
statement relating to the Notes and the offering thereof. As
filed, such final prospectus supplement shall include all required
information with respect to the Notes and the offering thereof 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
Note Issuer has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Note Issuer and the Notes meet the requirements for the
use of Form S-3 under the Act and the Note Issuer has filed with the
SEC a registration statement (file number 333-60907) on such Form,
including a basic prospectus, for registration under the Act of the
offering and sale of the Notes. The Note Issuer may have filed one or
more amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Note Issuer
will next file with the SEC either (x) a final prospectus supplement
relating to the Notes in accordance with Rules 430A and 424(b)(1) or
(4), or (y) prior to the effectiveness of such registration statement,
an amendment to such registration statement, including the form of
final prospectus supplement. In the case of clause (x), the Note
Issuer 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 the
Final Prospectus with respect to the Notes and the offering thereof.
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, with
respect to the Notes and the offering thereof 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 Note Issuer
has advised you, prior to the Execution Time, will be included or made
therein.
(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, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange
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Act of 1934 (the "Exchange Act") and the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the respective rules and regulations
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 requirements of the Trust Indenture Act and
the rules and regulations thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or 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 neither the Note Issuer nor
ComEd makes any representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act
of the Indenture Trustee (the "Form T-1") 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 Note Issuer 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). No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Notes and the
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Notes that is first filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus or, if, in the case of a Non-Delayed
Offering, no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Notes, including the Basic
Prospectus, included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to
in paragraph (a) above, including all documents, exhibits and financial
statements
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incorporated therein by reference, 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 becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended. 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 "Regulation S-K" refer to such rules or regulation under
the Act. "Rule 430A Information" means information with respect to the
Notes and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
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 all 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. A "Non-Delayed Offering"
shall mean an offering of Notes which is intended to commence promptly
after the effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the Notes so offered must be included in such
registration statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of Notes pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule 415 need be
included in such registration statement at the effective date thereof with
respect to the Notes so offered. Whether the offering of the Notes is a
Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the accountants who certified certain
financial statements of the Grantee and the Note Issuer included in the
Prospectus, are independent public accountants as required by the Act and
the rules and regulations of the SEC thereunder.
(e) The financial statements included or incorporated by reference in
the Prospectus present fairly the financial position and results of
operations of the Grantee and the Note Issuer, respectively, as at the
respective dates and for the respective periods specified and, except as
otherwise stated in the Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting
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principles applied on a consistent basis during the periods involved.
Neither the Grantee nor the Note Issuer has any material contingent
obligation which is not disclosed in the Prospectus.
(f) Except as set forth in or contemplated by the Prospectus, no
material transaction has been entered into by Unicom, ComEd or their
respective significant subsidiaries (as such term is defined below) or the
Note Issuer otherwise than in the ordinary course of business, no
materially adverse change, or any development involving a prospective
material adverse change, has occurred in the business, properties or
condition, financial or otherwise, of Unicom, ComEd, such subsidiaries or
the Note Issuer, in each case since the respective dates as of which
information is given in the Prospectus and since September 30, 1998 there
has not been any change in capital stock or long-term debt of Unicom or
ComEd except for issuances of capital stock by Unicom pursuant to then
existing stock option, dividend reinvestment, stock exchange or related
plans for the benefit of employees or stockholders.
(g) ComEd has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Illinois with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus.
(h) Each significant subsidiary of ComEd, as defined in Rule 1-02 of
Regulation S-X of the Commission ("significant subsidiary"), has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation; all of the issued
and outstanding capital stock of each significant subsidiary has been duly
and validly issued and is fully paid and non-assessable; and all of the
capital stock of each significant subsidiary is owned by ComEd free and
clear of any pledge, lien, encumbrance, claim or equity.
(i) Neither ComEd nor any significant subsidiary is in violation of
its Articles or Certificate of Incorporation, or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any mortgage or any material contract, lease,
note or other instrument to which it is a party or by which it may be
bound, or materially in violation of any law, administrative regulation or
administrative, arbitration or court order, except in each case to such
extent as may be set forth in the Prospectus; and the execution and
delivery of this Agreement, the Grant Agreement, the Servicing Agreement
and the Administration Agreement, the incurrence of the obligations set
forth herein and therein and the consummation of the transactions herein
and therein contemplated will not conflict with or constitute a breach of,
or default under, the Restated Articles of Incorporation or by-laws of
ComEd or any mortgage, contract, lease, note or other instrument to which
ComEd or any significant subsidiary is a party or by which it or any
significant subsidiary may be bound, or any law, administrative regulation
or administrative, arbitration or court order.
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(j) The Note Issuer has been duly formed and is validly existing as a
Delaware business trust and is in good standing under the laws of the State
of Delaware, with full power and authority to execute, deliver and perform
its obligations under this Agreement, the Sale Agreement, the Indenture and
the Notes.
(k) The Note Issuer is not in violation of the Trust Agreement, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material contract, lease,
note or other instrument to which it is a party or by which it may be
bound, or materially in violation of any law, administrative regulation or
administrative, arbitration or court order, except in each case to such
extent as may be set forth in the Prospectus; and the execution and
delivery of this Agreement, the Sale Agreement, and the Indenture and the
Notes, the incurrence of the obligations set forth herein and therein and
the consummation of the transaction herein and therein contemplated will
not conflict with or constitute a breach of, or default under, the Trust
Agreement or any mortgage, contract, lease, note or other instrument to
which the Note Issuer is a party or by which it may be bound, or any law,
administrative regulation or administrative, arbitration or court order.
(l) There is no pending or threatened suit or proceeding before any
court or governmental agency, authority or body or any arbitration
involving ComEd or any of its significant subsidiaries or the Note Issuer
required to be disclosed in the Prospectus which is not adequately
disclosed in the Prospectus.
(m) This Agreement has been duly authorized, executed and delivered
by ComEd and the Note Issuer.
(n) The Indenture has been duly and validly authorized by the
necessary action and duly qualified under the Trust Indenture Act; and the
Indenture has been duly and validly executed and delivered and is a valid
and enforceable instrument in accordance with its terms (subject to
bankruptcy, reorganization, insolvency, moratorium or other similar laws or
equitable principles affecting the enforcement of creditors' rights from
time to time in effect).
(o) The Grant Agreement, the Servicing Agreement and the
Administration Agreement have been duly authorized, executed and delivered
by ComEd, and constitute legal, valid and binding instruments enforceable
against ComEd in accordance with their terms (subject, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws or
equitable principles affecting creditors' rights generally from time to
time in effect).
(p) The Sale Agreement has been duly authorized and executed and
delivered by the Note Issuer and constitutes a legal, valid and binding
instrument enforceable against
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the Note Issuer in accordance with its terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
or equitable principles affecting creditors' rights generally from time
to time in effect).
(q) The issuance and sale of the Notes in accordance with the terms
of this Agreement have been duly and validly authorized by the necessary
action; the Notes, when duly executed, authenticated and delivered against
payment of the agreed consideration therefor, will be valid and enforceable
obligations in accordance with their terms and with like exception as noted
in the foregoing Section 2(p), entitled to the benefits provided by the
Indenture, and the holders of the Notes will be entitled to the payment of
principal and interest as therein provided; and the Notes and the Indenture
conform to the descriptions thereof contained in the Prospectus.
Any certificate signed by any officer of ComEd or the Note Issuer
and delivered to you or to counsel for the Underwriters shall be deemed
a representation and warranty by ComEd and the Note Issuer to each
Underwriters as to the matters covered thereby.
3. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Note
Issuer agrees to issue and sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Note Issuer, at the
purchase price for each class of Notes set forth on Schedule II hereto, the
respective principal amount of each class of Notes set forth opposite the name
of each Underwriter on Schedule II hereto.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Notes
shall be made on the date and at the time specified in Schedule I hereto (or
such later date not later than five business days after such specified date as
the Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Note Issuer or as provided in
Section 9 hereof (such date and time of delivery and payment for the Notes being
herein called the "Closing Date"). Delivery of the Notes 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 the Note Issuer by wire transfer of immediately available
funds. Delivery of the Notes shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date. The Notes to be so delivered shall be initially
represented by Notes registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"). The interests of beneficial owners of the
Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive Notes will be available only under
limited circumstances described in the Final Prospectus.
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The Note Issuer agrees to have the Notes available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
5. COVENANTS.
(a) COVENANTS OF THE NOTE ISSUER. The Note Issuer covenants and
agrees with the several Underwriters that:
(i) The Note Issuer will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Notes, the Note Issuer will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Note Issuer 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, the Note Issuer will cause the Final Prospectus,
properly completed in a form approved by you, and any supplement
thereto to be filed with the SEC 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 Note Issuer will promptly advise the Representatives (i) when the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, shall have become effective, (ii) when the
Final Prospectus, and any supplement thereto, shall have been filed
with the SEC pursuant to Rule 424(b), (iii) when, prior to termination
of the offering of the Notes, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any
request by the SEC for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Note Issuer of any notification with respect to the suspension
of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Note Issuer will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(ii) If, at any time when a prospectus relating to the Notes 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
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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 Note
Issuer promptly will (i) prepare and file with the SEC, 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 (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(iii) On or before ____________, the Note Issuer will make
generally available to the Noteholders and to the Representatives an
earnings statement or statements of the Note Issuer which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(iv) The Note Issuer will furnish to each of the Representatives
and counsel for the Underwriters, without charge, one executed copy of
the Registration Statement and of the Form T-1 (including 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 any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto
as the Representatives may reasonably request. The Final Prospectus
shall be delivered to the Representatives prior to 10:00 AM (New York
City time) on the second business day succeeding the Execution Date.
The Note Issuer shall cause the proceeds of the issuance and sale of
the Notes to be applied for the purposes described in the Prospectus
and shall furnish or cause to be furnished to the Representatives
copies of all reports on Form SR required by Rule 463 under the Act.
The Note Issuer will pay the expenses of printing or other production
of all documents relating to the offering.
(v) The Note Issuer will arrange for the qualification of the
Notes 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 Notes and will
arrange for the determination of the legality of the Notes for
purchase by institutional investors; provided that in no event shall
the Note Issuer 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 Notes, in any jurisdiction
where it is not now so subject.
(vi) Until August 1, 1999, the Note Issuer will not, without the
written consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any asset-backed securities of a trust or other special
purpose vehicle (other than the Notes).
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(vii) For a period from the date of this Agreement until the
retirement of the Notes, the Note Issuer will deliver to the
Representatives the annual statements of compliance and the annual
independent auditor's servicing reports furnished to the Note Issuer
or the Indenture Trustee pursuant to the Servicing Agreement or the
Indenture, as applicable, as soon as such statements and reports are
furnished to the Note Issuer or the Indenture Trustee.
(viii) So long as any of the Notes are outstanding, the Note
Issuer will furnish to the Representatives (i) as soon as available, a
copy of each report filed by it with the SEC under the Exchange Act,
or mailed to Noteholders, (ii) a copy of any filings with the ICC
pursuant to the 1998 Funding Order, and (iii) from time to time, any
information concerning ComEd, the Grantee or the Note Issuer, as the
Representatives may reasonably request.
(ix) To the extent, if any, that any rating necessary to satisfy
the condition set for in Section 6(p) of this Agreement is conditioned
upon the furnishing of documents or the taking of other actions by the
Note Issuer on or after the Closing Date, the Note Issuer shall
furnish such documents and take such other actions.
(b) COVENANTS OF COMED. ComEd covenants and agrees with the
several Underwriters that, to the extent that the Note Issuer has not
already performed such act pursuant to Section 5(a):
(i) ComEd will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. ComEd will use its best efforts to prevent
the issuance by the SEC of any stop order suspending the effectiveness of
the Registration Statement and, if issued, to obtain as soon as possible
the withdrawal thereof.
(ii) ComEd will cause the proceeds of the issuance and sale of the
Notes to be applied for the purposes described in the Prospectus.
(iii) Until 90 days after the date hereof, ComEd will not, without
the written consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any asset-backed securities of a trust or other special
purpose vehicle (other than the Notes).
(iv) So long as any of the Notes are outstanding and ComEd is the
Servicer, ComEd will furnish to the Representatives (i) as soon as
available, a copy of each report of the Note Trustee filed with the SEC
under the Exchange Act, or mailed to Noteholders, (ii) a copy of any
filings with the ICC pursuant to the 1998 Funding Order,
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and (iii) from time to time, any information concerning ComEd, the
Grantee and the Note Issuer, as the Representatives may reasonably
request.
(v) To the extent, if any, that any rating necessary to satisfy the
condition set forth in Section 6(p) of this Agreement is conditioned upon
the furnishing of documents or the taking of other actions by ComEd on or
after the Closing Date, ComEd shall furnish such documents and take such
other actions.
(vi) If, at any time when a prospectus relating to the Notes 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, ComEd
promptly will (i) prepare and file with the SEC, 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
(ii) supply any supplemented Prospectus to you in such quantities as you
may reasonably request;
(vii) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated, ComEd will pay all costs
and expenses incident to the performance of the obligations of ComEd,
the Note Issuer and the Grantee hereunder, including, without limiting
the generality of the foregoing, all costs, taxes and expenses incident
to the issue and delivery of the Notes to the Underwriters, all fees,
disbursements and expenses of ComEd's, the Note Issuer's and the
Grantee's counsel and accountants, all costs and expenses incident to
the preparation, printing and filing of the Registration Statement
(including all exhibits thereto), any preliminary prospectus, the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus and
any amendments thereof or supplements thereto (except the cost of
amending or supplementing the Final Prospectus after ninety days
following the Closing Date, which shall be at the expense of the
Underwriters requesting same), all costs and expenses (including fees of
counsel not exceeding $5,000, filing fees, and other disbursements)
incurred in connection with "Blue Sky" qualifications, examining the
legality of the Notes for the investment and the rating of the Notes,
all costs and expenses of the Indenture Trustee and the Delaware
Trustee, all costs and expenses incurred in the acquisition or
preparation of documents required to be delivered by ComEd or the Note
Issuer in connection with the closing of the transactions contemplated
hereby, all costs and expenses required in connection with any filing
with the National Association of Securities Dealers in connection with
the transactions contemplated hereby, and all costs and expenses of the
printing and distribution of all documents in connection with the Notes.
Except as provided in this Section 5(b)(vii), Section 7 and Section 8
hereof, the
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Underwriters will pay all their own costs and expenses, including any
advertising expenses in connection with any offer they may make of the
Notes, but excluding reasonable fees and expenses of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
counsel to the Underwriters, which fees and expenses of counsel shall be
included in, and become part of the Underwriters' fees and expenses to
be paid by ComEd; and
(viii) ComEd recognizes and agrees that a substantial impairment of
the rights of Holders with respect to the collection of IFCs and payments
on the Notes, arising from a declaration of invalidity of the Amendatory
Act and/or the Funding Law or for any other reason, occurring after ComEd
and its affiliates received the proceeds of such Notes, would not be
equitable. ComEd agrees to take any and all actions reasonably necessary
to preserve the rights of Holders with respect to payments on the Notes out
of the amounts represented by IFCs or their equivalent, including, but not
limited to, (i) making appropriate filings with the State of Illinois, the
ICC or other regulatory bodies to defend, preserve and create on behalf of
Holders the right to receive payments as provided in the Notes and (ii)
continuing to deduct and pay over to the Servicer for the benefit of the
Note Issuer all IFCs and IFC Payments or equivalent revenues received by
ComEd notwithstanding any declaration of invalidity of the Amendatory Act
and/or the Funding Law, in each such case unless otherwise prohibited by
applicable law or judicial or regulatory order in effect at such time.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Note Issuer
and ComEd contained herein as of the Execution Time and the Closing Date, on the
part of ComEd contained in Article III of the Grant Agreement and in Section
6.01 of the Servicing Agreement as of the Closing Date, on the part of the
Grantee in Article III of the Sale Agreement as of the Closing Date, to the
performance by the Note Issuer and ComEd of their respective 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) 12:00 Noon 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,
shall have been filed in the manner and within the time period required by
Rule 424(b) and shall have been delivered to the Representatives as
required by Section 5(a)(iv) of this Agreement; 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.
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(b) The Representatives shall have received opinions of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel for ComEd, dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) ComEd (a) has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Illinois, (b) has all requisite corporate power and authority to own
its properties, conduct its business as presently conducted and
execute, deliver and perform its obligations under this Agreement, the
Grant Agreement, the Servicing Agreement and the Administration
Agreement, and (c) is duly qualified to do business in all
jurisdictions (and is in good standing under the laws of all such
jurisdictions) to the extent that such qualification and good standing
is or shall be necessary to protect the validity and enforceability of
this Agreement, the Grant Agreement, the Servicing Agreement and the
Administration Agreement and each other instrument or agreement
necessary or appropriate to the transactions contemplated hereby;
(ii) the Grant Agreement, the Servicing Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by ComEd, and constitute legal, valid and binding
instruments enforceable against ComEd in accordance with their terms,
except to the extent enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(iii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving ComEd or any of
its significant subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as required;
(iv) this Agreement has been duly authorized, executed and
delivered by ComEd;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or the Basic Documents, except such
as have
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been obtained under the Act, the Funding Law and the Public
Utilities Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Notes by the Underwriters; and
(vi) neither the execution and delivery of this Agreement, the
Grant Agreement, the Servicing Agreement, the Administration Agreement
nor the consummation of the transactions contemplated by this
Agreement, the Grant Agreement, the Servicing Agreement or the
Administration Agreement, nor the fulfillment of the terms of this
Agreement, the Grant Agreement, the Servicing Agreement or the
Administration Agreement by ComEd, will (A) conflict with, result in
any breach or any of the terms or provisions of, or constitute (with
or without notice or lapse of time) a default under the articles of
incorporation, bylaws or other organizational documents of ComEd, or
to the knowledge of such counsel, conflict with or breach any of the
terms or provisions of, or constitute (with or without notice or lapse
of time) a default under, any indenture, material agreement or other
material instrument to which ComEd is a party or by which ComEd is
bound, (B) result in the creation or imposition of any lien upon any
properties of ComEd pursuant to the terms of any such indenture,
agreement or other instrument (other than as contemplated by the Basic
Documents and Section 18-107 of the Funding Law), or (C) violate any
law or any order, rule or regulation applicable to ComEd of any court
or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over ComEd, or
any of its properties.
In rendering such opinion, such counsel may (A) assume the validity and
continued effectiveness of the Amendatory Act (including, without
limitation, the Funding Law), (B) rely, as to matters involving the
application of laws of any jurisdiction other than the States of Illinois
or New York or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters and (C) rely, as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of ComEd or the Grantee.
References to the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received the opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel for the Grantee, dated the Closing Date, in form and substance
reasonably satisfactory to the Representatives, to the effect that:
(i) the Grantee has been duly formed and is validly existing as a
single member limited liability company and is in good standing under the
laws of the State of Delaware, with full power and authority to execute,
deliver and perform its obligations under the
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Grant Agreement, the Sale Agreement, the Servicing Agreement and the
Administration Agreement;
(ii) the Grant Agreement, the Sale Agreement, the Servicing Agreement
and the Administration Agreement have been duly authorized, executed and
delivered by the Grantee, and constitute legal, valid and binding
instruments enforceable against the Grantee in accordance with their
respective terms, except to the extent enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance
or other similar laws of general applicability relating to or affecting the
enforceability of creditors' rights and by the effect of general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law);
(iii) the Grant Agreement, the Sale Agreement, the Service Agreement
and the Administration Agreement conform in all material respects to the
descriptions thereof contained in the Final Prospectus;
(iv) neither the execution and delivery of the Grant Agreement, the
Sale Agreement, the Servicing Agreement or the Administration Agreement,
nor the consummation of the transactions contemplated by the Grant
Agreement, the Sale Agreement, the Servicing Agreement or the
Administration Agreement, nor the fulfillment of the terms of the Grant
Agreement, the Sale Agreement, the Servicing Agreement or the
Administration Agreement by the Grantee, will (A) conflict with, result in
any breach of any of the terms or provisions of, or constitute (with or
without notice or lapse of time); a default under the Certificate of
Formation or Limited Liability Company Agreement of the Grantee or conflict
with or breach any of the material terms or provisions of, or constitute
(with or without notice or lapse of time) a default under, any indenture,
agreement or other instrument known to such counsel and to which the
Grantee is a party or by which the Grantee is bound, (B) result in the
creation or imposition of any lien upon any properties of the Grantee
pursuant to the terms of any such indenture, agreement or other instrument
(other than as contemplated by the Basic Documents and Section 18-107 of
the Funding Law), or (C) violate any law or any order, rule or regulation
applicable to the Grantee of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Grantee, or any of its
properties;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator challenging the validity or
enforceability of the Grant Agreement, the Sale Agreement, the Servicing
Agreement, or the Administration Agreement of a character required to be
disclosed in the Final Prospectus which is not adequately disclosed in the
Final Prospectus;
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(vi) upon the delivery of the fully executed Sale Agreement to the
Note Issuer and the payment of the purchase price of the Intangible
Transition Property by the Note Issuer to the Grantee pursuant to the Sale
Agreement, (A) the transfer of the Intangible Transition Property by the
Grantee to the Note Issuer pursuant to the Sale Agreement conveys all of
the Grantee's right, title and interest in the Intangible Transition
Property and related assets to the Note Issuer and will be treated as an
absolute transfer of all of the Grantee's right, title and interest in the
Intangible Transition Property, other than for federal and state income and
franchise tax purposes, (B) such transfer of the Intangible Transition
Property is perfected, (C) such transfer has priority over any other
assignment of the Intangible Transition Property and related assets, and
(D) the Intangible Transition Property and related assets are free and
clear of all liens created prior to its transfer to the Note Issuer
pursuant to the Sale Agreement; and
(vii) the Grantee is not an "investment company" or under the
"control" of an "investment company" as such terms are defined under the
Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may (A) assume the validity and
continued effectiveness of the Amendatory Act (including, without limitation,
the Funding Law), (B) rely, as to matters involving the application of laws of
any jurisdiction other than the States of Illinois, New York or Delaware or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters and (C) rely, as to matters of
fact, to the extent deemed proper, on certificates of responsible officers of
the Grantee and public officials. References to the Final Prospectus in this
paragraph (c) include any supplements thereto at the Closing Date.
(d) The Representatives, the Grantee, ComEd and the Indenture Trustee
shall have received opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Note
Issuer, portions of which may be delivered by ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇,
P.A., special Delaware counsel for the Note Issuer, each dated the Closing
Date, in form and substance reasonably satisfactory to the Representatives,
to the effect that:
(i) the Certificate of Trust has been duly filed with the
Secretary of State, the Note Issuer has been duly formed and is
validly existing in good standing as a Delaware business trust the
laws of the State of Delaware, 12 Del. C. Section 3801, ET SEQ.;
(ii) the Note Issuer has the power and authority to execute,
deliver and perform its obligations under this Agreement, the
Indenture, the Notes, the Administration Agreement and the Sale
Agreement;
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(iii) the Notes have been duly authorized and executed by the
Note Issuer and, when authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be duly issued and valid and legally
binding obligations enforceable in accordance with their terms (except
to the extent the enforceability thereof may be limited by bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other
similar laws of general applicability relating to or affecting the
enforceability of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law)) and entitled to the
benefits of the Indenture; and the Notes and the Indenture conform in
all material respects to the descriptions thereof in the Final
Prospectus;
(iv) the Indenture, the Certificate, the Sale Agreement and the
Administration Agreement have been duly authorized, executed and
delivered by the Note Issuer and each constitutes a legal, valid and
binding instrument enforceable in accordance with its terms, except to
the extent enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium, fraudulent transfer or other
similar laws of general applicability relating to or affecting the
enforceability of creditors' rights and by the effect of general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law);
(v) the Indenture has been duly qualified under the Trust
Indenture Act;
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator challenging the validity
or enforceability of the Notes or the Indenture of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there is no
franchise, contract or other document relating to the Notes or the
Indenture of a character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an exhibit, which is
not described or filed as required; and the statements included or
incorporated in the Final Prospectus under the headings "Description
of the Intangible Transition Property" "Description of the Notes,"
"The Trust," "Servicing," "Security for the Notes," "Material United
States Federal Income Tax Consequences" and "ERISA Considerations", in
each case to the extent that such statements constitute matters of
Illinois, Delaware or federal law or legal conclusions with respect
thereto, provide a fair and accurate summary of such law or
conclusions;
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(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;
(viii) this Agreement has been duly authorized, executed and
delivered by the Note Issuer;
(ix) neither the execution and delivery of this Agreement or the
Indenture, nor the issue and sale of the Notes, nor the consummation
of the transactions contemplated by this Agreement or the Indenture,
nor the fulfillment of the terms of this Agreement or the Indenture by
the Note Issuer will (A) conflict with, result in any breach of any of
the terms or provisions of, or constitute (with or without notice or
lapse of time) a default under the Trust Agreement, or conflict with
or breach any of the terms or provisions of, or constitute (with or
without notice or lapse of time) a default under, any indenture,
agreement or other instrument known to such counsel and to which the
Note Issuer is a party or by which the Note Issuer is bound, (B)
result in the creation or imposition of any lien upon any properties
of the Note Issuer pursuant to the terms of any such indenture,
agreement or other instrument other than the lien created by the
Indenture on the Note Collateral, (C) require the consent or approval
of, the giving of notice to, the registration with, or the taking of
any other action with respect to, any court, governmental or
regulatory authority or agency other than any such approvals, notices
or actions which have been obtained, made or taken; or (D) violate any
law or any order, rule or regulation applicable to the Note Issuer of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Note Issuer, or any of its properties;
(x) (A) the lien of the Indenture in favor of the Holders in the
Intangible Transition Property attaches automatically; (B) such lien
has been perfected in accordance with Section 18-107(c) of the Funding
Law and in accordance with the 1998 Funding Order; (C) such lien is
valid and enforceable against ComEd, the Servicer, the Grantee, the
Note Issuer and all third parties, including
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judgment lien creditors; and (D) such lien ranks prior to any other
lien which subsequently attaches to the Intangible Transition
Property; and
(xi) Neither ComEd nor the Note Issuer is an "investment
company" or under the "control" of an "investment company" as such
terms are defined under the Investment Company Act of 1940, as
amended.
Such counsel shall also state that it has no reason to believe that at the
Effective Date 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 the Closing Date includes any untrue
statement of a material fact 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 (other than the financial statements and other financial
and statistical information contained therein and Form T-1 as to which such
counsel need express no opinion).
In rendering such opinion, such counsel may (A) assume the validity and
continued effectiveness of the Amendatory Act (including, without limitation,
the Funding Law), (B) rely, as to matters involving the application of laws of
any jurisdiction other than the States of Illinois, New York or Delaware or the
United States, to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing believed to be reliable and who
are satisfactory to counsel for the Underwriters, and (C) rely as to matters of
fact, to the extent deemed proper, on certificates of responsible officers of
the Note Issuer and public officials. References to the Final Prospectus in
this paragraph (d) include any supplements thereto at the Closing Date.
(e) The Representatives, ComEd and the Note Issuer shall have
received an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Vice President and Senior
Counsel of the Indenture Trustee, dated the Closing Date, in form and
substance reasonably satisfactory to the Representatives, to the effect
that:
(i) the Indenture Trustee is validly existing as a banking
corporation in good standing under the laws of the State of Illinois;
(ii) the Indenture has been duly authorized, executed and
delivered by the Indenture Trustee, and constitutes a legal, valid and
binding instrument enforceable against the Indenture Trustee in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws or
equitable principles affecting creditors' rights generally from time
to time in effect); and
(iii) the Notes have been duly authenticated by the Indenture
Trustee.
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(f) The Representatives, the Note Issuer and the Indenture Trustee
shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the
Delaware Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) the Delaware Trustee is duly incorporated and validly existing as
a national banking association under the laws of the United States of
America with trust powers and with its principal place of business in the
State of Delaware;
(ii) the Delaware Trustee has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, to act as
Delaware Trustee under the Trust Agreement, and to consummate the
transactions contemplated thereby;
(iii) the Delaware Trustee has duly authorized, executed and
delivered the Trust Agreement;
(iv) the Trust Agreement constitutes a legal, valid and binding
instrument enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights
and by general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law);
(v) the execution, delivery and performance by the Delaware Trustee
of the Trust Agreement do not conflict with or result in a violation of (A)
its articles of association or by-laws or (B) any law or regulation of the
State of Delaware or the United States of America governing the banking or
trust powers of the Delaware Trustee; and
(vi) no approval, authorization or other action by, or filing with,
any governmental authority of the State of Delaware or the United States of
America governing the banking and trust powers of the Delaware Trustee is
required in connection with the execution and delivery by the Delaware
Trustee of the Trust Agreement or the performance by the Delaware Trustee
of its obligations thereunder, except for the filing of the Certificate of
Trust with the Secretary of State.
(g) The Representatives shall have received from Winston & ▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Notes, the Indenture,
the Basic Documents, the Registration Statement and other related matters
as the Representatives may reasonably require; and ComEd and the Note
Issuer shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
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(h) The Representatives and the Indenture Trustee shall have received
a certificate of ComEd, signed by the Chairman, the President or a Vice
President and the Treasurer or the principal financial or accounting
officer of ComEd, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of ComEd in this
Agreement, the Grant Agreement, the Servicing Agreement and the
Administration Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date, and ComEd
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; PROVIDED that the execution of such certificate by any of such
individuals on behalf of ComEd shall not be deemed to be the
expression of any legal opinion or opinions by any of such
individuals;
(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 ComEd's knowledge, threatened; and
(iii) since the date as of which information is given in the
Final Prospectus (exclusive of any supplement thereto), there has been
no material adverse change in (x) the condition (financial or other),
prospects, earnings, business or properties of ComEd and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, or (y) the Intangible
Transition Property, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(i) At the Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to
the Representatives (i) a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that they
have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
ComEd and its subsidiaries) set forth in the Registration Statement and the
Final Prospectus, including information specified by the Underwriters and
set forth under the captions "Prospectus Summary," "Description of the
Intangible Transition Property," "The Servicer" and "Description of the
Notes" in the Final Prospectus, agrees with the accounting records of ComEd
and its subsidiaries, excluding any questions of legal interpretation, and
(ii) the
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opinion dated as of the Closing Date, in form and substance satisfactory
to the Representatives, satisfying the requirements of Section 2.10(8)
of the Indenture.
Reference to the Final Prospectus in this paragraph (i) includes any
supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the Execution
Time, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to the Representatives a letter
or letters, dated as of the Execution Time, in form and substance satisfactory
to the Representatives, to the effect set forth above.
(j) Subsequent to the Execution Time (or September 30, 1998 in the
case of (ii) below) or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any thereof) and the
Final Prospectus (exclusive of any supplement thereto), there shall not
have been any change, or any development involving a prospective change, in
or affecting (i) the business, properties or condition, financial or
otherwise, of Unicom, ComEd, the Grantee or the Note Issuer, (ii) the
capital stock or long-term debt of Unicom or ComEd since September 30, 1998
(other than issuances of capital stock by Unicom pursuant to then existing
stock option, dividend reinvestment, stock exchange or related plans for
the benefit of employees or stockholders), or (iii) the Intangible
Transition Property, the Notes, the 1998 Funding Order, the Funding Law or
the 1998 Initial Tariff, the effect of which is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Notes as
contemplated by the Registration Statement (exclusively of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(k) The Representatives, the Note Issuer and ComEd shall have
received on the Closing Date an opinion letter or letters of ▇▇▇▇▇▇ &
▇▇▇▇▇▇, counsel to ComEd and the Note Issuer, dated the Closing Date, in
form and substance reasonably satisfactory to the Representatives, (i) with
respect to the characterization of the transfer of the Intangible
Transition Property by Grantee to the Note Issuer as a "true sale" for
bankruptcy purposes and (ii) to the effect that a court would not order the
substantive consolidation of the assets and liabilities of the Grantee with
those of ComEd in the event of a bankruptcy, reorganization or other
insolvency proceeding involving ComEd.
(l) The Representatives, the Note Issuer and ComEd shall have
received on the Closing Date an opinion letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ to the
effect that, subject to the qualifications, limitations, assumptions and
analysis therein set forth:
(i) absent a demonstration by the State of Illinois (the
"State") that an impairment is necessary to further a significant and
legitimate public purpose, the Noteholders (or the Indenture Trustee
acting on their behalf) could challenge
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successfully under Article I, Section 10 of the United States
Constitution (the "Contract Clause") the constitutionality of any
law passed by the Illinois legislature determined by such court to
limit, alter, impair or reduce the value of the Intangible
Transition Property or the IFC so as to cause an impairment prior
to the time that the Notes are fully paid and discharged;
(ii) any attempt by citizens of the State of Illinois to
initiate changes to the Amendatory Act determined by such court to
limit, alter, impair or reduce the value of the Intangible Transition
Property or the IFC would be invalid;
(iii) under the Funding Law, the ICC would be prohibited from
taking action subsequent to the 1998 Funding Order becoming final
determined by such court to reduce, postpone, impair or terminate the
value of the Intangible Transition Property or the IFC;
(iv) permanent injunctive relief is available to prevent
implementation of legislation hereafter passed by the Illinois
legislature determined by such court to limit, alter, impair or reduce
the value of the Intangible Transition Property or the IFC so as to
cause an impairment in violation of the Contract Clause; and although
sound and substantial arguments support the granting of preliminary
injunctive relief, the decision to do so will be in the discretion of
the court requested to take such action, which will be exercised on
the basis of the considerations discussed in such opinion;
(v) in the event that a provision of the Amendatory Act were
hereafter declared to be invalid by a court, a reviewing court should
hold that the IFC would remain valid and vested in the Grantee or its
assignees and the Noteholders would continue to be secured thereby;
(vi) if a reviewing court were to determine, after such a
declaration, that the IFC would remain valid and so vested and that
the Noteholders would continue to be secured thereby, such court
should also determine, for the same reasons, that the substance of the
State Pledge would continue in effect for the benefit of the
Noteholders;
(vii) a reviewing court which determines that the substance of
the State Pledge continues in effect for the benefit of the
Noteholders should also determine, for the same reasons, that the ICC
could not take any action determined by such court to limit, alter,
impair or reduce materially the value of the Intangible Transition
Property or the IFC, except for such actions, if any, which could be
taken by the State without violating the State Pledge; and
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(viii) notwithstanding a judicial declaration of the invalidity
of the Amendatory Act, the 1998 Funding Order would remain in effect
and the Intangible Transition Property would continue to be valid and
enforceable, at least against ComEd and its successors and assigns
(including a trustee in bankruptcy), unless and until the 1998 Funding
Order were modified by the ICC or a court in subsequent proceedings
initiated to vacate, amend or otherwise modify the 1998 Funding Order;
however, notwithstanding such a declaration, it would be possible to
seek a stay of any decision which vacates, amends or otherwise
modifies the 1998 Funding Order in a manner adversely affecting the
payment of the IFC pending appellate review of such decision; and
while sound and substantial arguments support of the granting of such
a stay, the decision to do so will be in the discretion of the court
requested to take such action, which will be exercised on the basis of
the factors discussed in such opinion.
(m) The Representatives, the Note Issuer and ComEd shall have
received on the Closing Date an opinion letter or letters of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., special Delaware counsel to the Grantee, dated the
Closing Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that: (i) if properly presented to a
Delaware court, a Delaware court applying Delaware law, would conclude that
in order for a person to file a voluntary bankruptcy petition on behalf of
the Grantee, the prior affirmative vote of its Sole Member and of all of
its Managers (including the Independent Manager), as provided in Section
2.7(ii) of the Amended and Restated Limited Liability Company Agreement of
the Grantee (the "LLC Agreement") is required and (ii) the LLC Agreement
constitutes a legal, valid and binding agreement of the Sole Member and is
enforceable against the Sole Member in accordance with its terms.
(n) The Notes shall have been rated in the highest long-term rating
category by each of the Rating Agencies and on or after the date hereof (i)
no downgrading shall have occurred in the rating accorded the debt
securities of ComEd or Unicom by any Rating Agency, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of
Unicom's or ComEd's debt securities.
(o) On or prior to the Closing Date, the Note Issuer shall have
delivered to the Representatives evidence, in form and substance reasonably
satisfactory to the Representatives, that appropriate filings have been or
are being made in accordance with the 1998 Funding Law and other applicable
law reflecting the grant of a security interest by the Note Issuer in the
Note Collateral to the Indenture Trustee, including the filing of the
U.C.C. financing statements in the office of the Secretary of State of the
State of Illinois.
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(p) On or prior to the Closing Date, the Note Issuer shall have
delivered to the Representatives evidence, in form and substance
satisfactory to the Representatives, of the ICC's issuance of the 1998
Funding Order relating to the Intangible Transition Property.
(q) Prior to the Closing Date, ComEd, the Grantee and the Note Issuer
shall have furnished to the Representatives such further information,
certificates, opinions and documents as the Representatives may reasonably
request.
(r) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the securities of Unicom or ComEd;
(iii) a general moratorium on commercial banking activities declared by
either Federal, New York or Illinois State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment
of the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes.
If any of the conditions specified in this Section 6 shall not have
been fulfilled 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 reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Note Issuer in writing or by telephone
or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Notes 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 ComEd or the Note Issuer to perform
any agreement herein or comply with any provision hereof other than by reason of
a default (including under Section 9) by any of the Underwriters, ComEd and the
Note Issuer will, jointly and severally, reimburse the Underwriters upon demand
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of their counsel) that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale of the Notes.
8. INDEMNIFICATION AND CONTRIBUTION. (a) ComEd and the Note Issuer
will, jointly and severally, indemnify and hold harmless each Underwriter, the
directors, officers, members, employees and agents of each Underwriter and each
person who controls any
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Underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Notes as originally filed or in any amendment thereof, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, any
untrue statement or alleged untrue statement of a material fact contained in
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or any amendment thereof or supplement thereof, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (ii) the
invalidation (for any reason) of the Amendatory Act and/or the Funding Law,
and will 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 in the case of indemnification under (a)(i) above, neither
ComEd nor the Note Issuer will 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 Note Issuer or ComEd by or on behalf of any
Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which ComEd and
the Note Issuer may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
ComEd and the Note Issuer, each of their directors, each of their officers who
signs the Registration Statement, and each person who controls ComEd, the Note
Issuer or the Grantee within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing indemnity
from ComEd and the Note Issuer to each Underwriter pursuant to Section 8(a)(i)
above, but only with reference to written information relating to such
Underwriter furnished to the Note Issuer or ComEd by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(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
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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 reasonably satisfactory to the indemnified party (and shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying 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 only 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 are legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnified party, (iii) the indemnifying party shall
not have employed counsel reasonably 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. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. 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 (i) includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or failure to act, by or on behalf of
any indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, ComEd, the Note Issuer and the Underwriters
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 ComEd, the
Note Issuer and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Note Issuer and by the Underwriters
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from the offering of the Notes; 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 Notes) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Notes
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, ComEd, the Note
Issuer and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of ComEd, the Note Issuer and of the Underwriters in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Note
Issuer shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) of the Notes, 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 whether
any alleged untrue statement or omission relates to information provided by
ComEd, the Note Issuer or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. ComEd, the Note Issuer 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. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to above in this
subsection (d) 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. 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 Note Issuer or ComEd within the meaning of either the
Act or the Exchange Act, each officer of the Note Issuer or ComEd who shall
have signed the Registration Statement and each director of the Note Issuer
or ComEd shall have the same rights to contribution as the Note Issuer or
ComEd, subject in each case to the applicable terms and conditions of this
paragraph (d). The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Notes agreed to be purchased by such
Underwriter or Underwriters hereunder the Representatives may in their
discretion arrange for the Underwriters or another party or other parties to
purchase such Notes on the terms contained herein. If within 36 hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Notes, the nondefaulting Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Notes set forth opposite the
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names of all the remaining Underwriters) the Notes which the defaulting
Underwriter or Underwriters agreed by failed to purchase; PROVIDED, HOWEVER,
that in the event that the aggregate amount of Notes which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Notes set forth in Schedule II hereto, the
nondefaulting Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Notes, and if such
nondefaulting Underwriters do not purchase all the Notes, this Agreement will
terminate without liability to any nondefaulting Underwriter, the Note Issuer
or ComEd. 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
seven 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 Note Issuer and ComEd 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 Note
Issuer and ComEd prior to delivery of and payment for the Notes, if prior to
such time there shall have occurred (i) any change, or any development involving
a prospective change, in or affecting (A) the business, properties or condition,
financial or otherwise, of Unicom, ComEd or the Note Issuer, (B) the capital
stock or long-term debt of Unicom or ComEd since September 30, 1998 (other than
issuances of capital stock by Unicom pursuant to then existing stock option,
dividend reinvestment, stock exchange or related plans for the benefit of
employees or stockholders) or (C) the Intangible Transition Property, the Notes,
the 1998 Funding Order, the Funding Law or the 1998 Initial Tariff, the effect
of which, in the judgment of the Representatives, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to market
the Notes, (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (iii) a suspension or material
limitation in trading in the securities of Unicom or ComEd; (iv) a general
moratorium on commercial banking activities shall have been declared either by
Federal, New York State or Illinois State authorities or (v) any outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war the effect of which on financial
markets is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
Notes 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
ComEd or its officers, the Note Issuer 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 of ComEd, the Note Issuer or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this
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Agreement and, to the fullest extent permitted by applicable law, the
invalidation (for any reason) of the Amendatory Act, the Funding Law and/or
any Transitional Funding Order.
12. NOTICES. All communications hereunder will be in writing and may
be given by United States mail, courier service, telegram, telex, telemessage,
telecopy, telefax, cable or facsimile (confirmed by telephone or in writing in
the case of notice by telegram, telex, telemessage, telecopy, telefax, cable or
facsimile) or any other customary means of communication, and any such
communication shall be effective when delivered, or if mailed, three days after
deposit in the United States mail with proper postage for ordinary mail prepaid,
and if sent to the Representatives, to them at the address specified in Schedule
I hereto; and if sent to ComEd, to it at Commonwealth Edison Company, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy: (312)
_____________; and if sent to the Note Issuer, to it at c/o First Union Trust
Company, National Association, One ▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attn: Corporate Trust Administration, Telecopy:
(302) _________, with a copy to Commonwealth Edison Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Telecopy: (312) _____________. The
parties hereto, by notice to the others, may designate additional or different
addresses for subsequent communications.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors 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.
15. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
16. MISCELLANEOUS. Time shall be of the essence of this Agreement.
As used herein, the term "business day" shall mean any day when the SEC's office
in Washington, D.C. is open for business.
17. LIMITATION OF LIABILITY. It is expressly understood and agreed
by the parties hereto that (a) this Agreement is executed and delivered by First
Union Trust Company, National Association ("First Union"), not individually or
personally but solely as Delaware Trustee on behalf of the Note Issuer, in the
exercise of the powers and authority conferred and vested in it, (b) the
representations, undertakings and agreements herein made by the Delaware Trustee
on behalf of the Note Issuer are made and intended not as personal
representations, undertakings and agreements by First Union but are made and
intended for the purpose of
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binding only the Note Issuer, (c) nothing herein contained shall be construed
as creating any liability on First Union, individually or personally, to
perform any covenant either expressed or implied contained herein, except in
its capacity as Delaware Trustee, all such liability, if any, being expressly
waived by the parties who are signatories to this Agreement and by any Person
claiming by, through or under such parties and (d) under no circumstances
shall First Union be personally liable for the payment of any indebtedness or
expense of the Note Issuer or be personally liable for the breach or failure
of any obligation, representation, warranty or covenant made or undertaken by
the Note Issuer under this Agreement; PROVIDED, HOWEVER, that this provision
shall not protect First Union against any liability that would otherwise be
imposed by reason of willful misconduct, bad faith or gross negligence in the
performance of its obligations and duties under this Agreement.
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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 ComEd,
the Note Issuer, and the several Underwriters.
Very truly yours,
COMMONWEALTH EDISON COMPANY
By:_________________________________
Name:
Title:
COMED TRANSITIONAL FUNDING TRUST
By: First Union Trust Company, National
Association, not in its individual capacity, but
solely as Delaware Trustee
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
___________________________________
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
by_________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
by_________________________________
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