Exhibit 1-3
PECO ENERGY CAPITAL TRUST [ ]
% Trust Preferred Securities (Liquidation Amount
of $ per Trust Preferred Security)
Underwriting Agreement
New York, New York
, 20
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
PECO Energy Capital Trust [ ] (the "Trust"), a Delaware statutory trust
organized under the Statutory Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. ▇▇.▇▇. 3801 et
seq.), and PECO Energy Company, a corporation organized under the laws of the
Commonwealth of Pennsylvania (the "Company" and, together with the Trust, the
"Offerors"), propose to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the % Trust Preferred Securities (liquidation amount of $ per
security) issued by the Trust, with the terms specified in Schedule I hereto,
representing undivided beneficial interests in the assets of the Trust (the
"Preferred Securities"). The Preferred Securities will be guaranteed by the
Company (the "Guarantee" and, together with the Preferred Securities, the
"Offered Securities"), to the extent described in the Final Prospectus, with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Guarantee Agreement (the "Preferred Securities Guarantee") to be
dated as of the Closing Date (as defined below) between the Company and Wachovia
Trust Company, National Association, as Trustee (the "Guarantee Trustee"). The
Offerors propose to sell to the Underwriters pursuant to this Agreement Offered
Securities as set forth in Schedule II hereto.
The entire proceeds from the sale of the Offered Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used by the Trust
to purchase $ in aggregate principal amount of the Company's % unsecured
subordinated debt securities (the "Debt Securities"). The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust, to be dated as of the Closing Date (the "Declaration"),
among the Company, as sponsor, , and , as administrative trustees (the
"Administrative Trustees"), Wachovia Trust Company, National Association, as
property trustee (the "Property Trustee") and as Delaware trustee (the "Delaware
Trustee," and together with the Property Trustee and the Administrative
Trustees, the "Trustees"). The Debt Securities will be
issued pursuant to an indenture, dated as of May , 2003 [(as heretofore
supplemented and as supplemented by a Supplemental Indenture (the "Supplement")
dated as of the date hereof)] (the "Indenture"), between the Company and
Wachovia Bank, National Association, as trustee (the "Debenture Trustee"). The
Preferred Securities issued in book-entry form will be issued to Cede & Co. as
nominee of The Depository Trust Company ("DTC") pursuant to a letter agreement,
to be dated as of the Closing Date, among the Trust, the Property Trustee and
DTC. The Offered Securities and the Subordinated Notes are hereinafter
collectively referred to as the "Securities."
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either
the singular or plural as the context requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary 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 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 Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Offerors jointly and severally
represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Offerors meet the requirements for use of Form S-3 under the
Act and have prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Offerors may have filed
one or more amendments thereto, including a Preliminary Prospectus, each of
which has previously been furnished to you. The Offerors will next file
with the Commission one of the following: (1) after the Effective Date of
such registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) after the Effective Date of such registration statement, a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Offerors have included in such registration statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in such
registration statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to
the extent not completed at the Execution Time, shall contain only
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such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Prospectus) as the
Offerors have advised you, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date and at the Execution Time, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statements of Eligibility and Qualification (Forms T-1) under the Trust
Indenture Act of the Debenture Trustee, the Guaranty Trustee and the
Delaware Trustee and Property Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Offerors by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) Neither of the Company or the Trust is, and after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus will be, an "investment
company" or an entity "controlled" by an investment company within the
meaning of the Investment Company Act.
(d) Neither of the Company or the Trust has taken, directly or
indirectly, any action designed to cause or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any
security of the Company or the Trust to facilitate the sale or resale of
the Securities.
(e) The Company has been duly organized and is validly subsisting as a
corporation in good standing under the laws of the Commonwealth of
Pennsylvania with full power and authority under its articles of
incorporation and bylaws to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign entity and is
in good standing under the laws of each jurisdiction which requires such
qualification.
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(f) The Trust has been duly created and is validly existing in good
standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Final Prospectus and to enter into and perform its obligations under this
Agreement, the Offered Securities, the Common Securities and the
Declaration; the Trust is duly qualified to transact business as a foreign
company and is in good standing in any other jurisdiction in which such
qualification is necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the Trust; the Trust is not a party to or otherwise bound by any agreement
other than those described in the Final Prospectus; the Trust is and will
be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the Trust is
and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(g) Except as disclosed in the Company's Form 10-K for the fiscal year
ended December 31, 2002, the Company does not have any significant
subsidiaries (as such term is defined in Rule 1.02 of Regulation S-X
promulgated under the Act).
(h) The descriptions in the Final Prospectus of the Declaration, the
Preferred Securities, the Preferred Securities Guarantee, the Common
Securities, the Indenture and the Debt Securities fairly summarize the
matters therein described.
(i) This Agreement has been duly authorized, executed and delivered by
each of the Offerors; the Indenture has been duly authorized and[, assuming
due authorization, execution and delivery of the Supplement by the
Debenture Trustee,] when executed and delivered by the Company, will
constitute a legal, valid, binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity).
(j) At the Closing Date, the Preferred Securities will have been duly
authorized for issuance and sale by the Trust and, when issued and
delivered against payment of the consideration therefor as provided herein,
will be validly issued and (subject to the terms of the Declaration) fully
paid and non-assessable undivided beneficial interests in the Trust, and
will be entitled to the benefits of the Declaration; the issuance of the
Preferred Securities is not subject to preemptive or other similar rights
of any securityholder of the Company or the Trust; and (subject to the
terms of the Declaration) holders of Preferred Securities will be entitled
to the same limitation of personal liability under Delaware law as extended
to stockholders of private corporations for profit organized under the
Delaware General Corporation Law; provided, that the holders of the
Preferred Securities may be obligated, pursuant to the Declaration, to (i)
provide indemnity and/or security in connection with, and pay taxes or
governmental charges arising from, transfers or exchanges of Preferred
Securities certificates and the issuance of replacement Preferred
Securities certificates and (ii) provide security and indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and remedies under the Declaration.
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(k) The Preferred Securities Guarantee, including the Guarantee, has
been duly authorized by the Company; at the Closing Date, the Preferred
Securities Guarantee will have been duly executed and delivered by the
Company and, assuming due authorization, execution and delivery of the
Preferred Securities Guarantee by the Guarantee Trustee, will constitute a
legal, valid, binding instrument, enforceable against the Company in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity).
(l) The Common Securities have been duly authorized by the Trust and,
when issued and delivered by the Trust to the Company against payment
therefor as described in the Final Prospectus, will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; the issuance of
the Common Securities is not subject to preemptive or other similar rights;
and at the Closing Date all of the issued and outstanding Common Securities
of the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(m) The issuance and sale of the Debt Securities have been duly
authorized by the Company and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Final Prospectus, will constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); and the Debt Securities will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(n) The Declaration has been duly authorized by the necessary
corporate action of the Offerors and, at the Closing Date, will have been
duly executed and delivered by the Company and the Trustees, and assuming
due authorization, execution and delivery of the Declaration by the
Property Trustee and the Delaware Trustee, the Declaration will, at the
Closing Date, constitute a legal, valid, binding instrument enforceable
against the Company, the Trust and the Trustees in accordance with its
terms, (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
(o) The Pennsylvania Public Utility Commission has entered an
appropriate order authorizing the issuance and sale of the Securities, the
purchase of the Common Securities from the Trust and the Company's
participation in the transactions otherwise contemplated herein; such order
is in full force and effect and no proceeding has been initiated upon
appeal from or to review the effectiveness of such order. No other consent,
approval, authorization, filing with or order of any court or state or
federal governmental agency or body, including the Commission and any
applicable state regulatory authority, is required in connection with the
transactions contemplated herein or in the Indenture, except such as will
be obtained under the Act, the Trust Indenture Act and the
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Pennsylvania Public Utility Code, and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters in the manner
contemplated herein and in the Final Prospectus.
(p) Neither the execution and delivery of this Agreement, nor the
consummation of any of the transactions herein contemplated, nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Trust pursuant to, (i) the charter
or bylaws of the Company; (ii) the Certificate of Trust or the Declaration;
(iii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which either the Company or the Trust is a party
or bound or to which its property is subject; or (iv) any statute, law,
rule, regulation, judgment, order or decree applicable to either Offeror of
any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over either the Company
or the Trust or any of its respective subsidiaries or any of its or their
properties.
(q) The Company has good and sufficient title to all property
described or referred to in the Company's First and Refunding Mortgage
dated as of May 1, 1923, as amended and supplemented (the "Mortgage"),
subject only to the lien of the Mortgage and excepted encumbrances as
therein defined (except as to property released from the lien of the
Mortgage in connection with the sale or other disposition thereof, and
certain other exceptions which are not material in the aggregate).
(r) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries incorporated by reference in
the Final Prospectus present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as of the
date and for the period indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in conformity
with generally accepted accounting principles; and the selected historical
financial data set forth under the caption ["Summary Historical Financial
Data"] in the Final Prospectus fairly present, on the basis stated in the
Final Prospectus, the information included therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving either
the Company or the Trust or any of its subsidiaries or its or their
property is pending or, to the best knowledge of the Company, threatened
that (i) could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the Indenture, or the consummation of
any of the transactions contemplated hereby or thereby; or (ii) could
reasonably be expected to have a material adverse effect on the financial
condition, business or properties of either the Trust or the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any amendment or
supplement thereto).
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(t) PricewaterhouseCoopers, LLP, are independent public accountants
with respect to the Offerors within the meaning of the Act and the
applicable published rules and regulations thereunder.
(u) Each of the Administrative Trustees of the Trust is an employee of
the Company or an affiliate of the Company and has been duly authorized by
the Company to execute and deliver the Declaration; the Declaration has
been duly executed and delivered by the Administrative Trustees and is a
legal, valid, binding obligation of each Administrative Trustee,
enforceable against such Administrative Trustee in accordance with its
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
(v) The Company is a "public utility company" as defined in the Public
Utility Holding Company Act of 1935, as amended.
Any certificate signed by any officer or other representative of the
Company or the Trust and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Offered Securities shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, at the purchase price set forth
opposite its name in Schedule II hereto, the principal amount of the Offered
Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. (a) Delivery of and payment for the Offered
Securities shall be made on the date and at the time specified in Schedule I
hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
(b) As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Offered Securities will be used to purchase Debt Securities of the Company,
the Company hereby agrees to pay at the Closing Date, or the relevant date
of delivery, as the case may be, to the Representative in immediately
available funds, for the accounts of the several Underwriters, $ per
Offered Security to be delivered by the Trust hereunder at the Closing
Date.
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(c) In accordance with Rule 15c6-1(d) promulgated under the Exchange
Act, the Underwriters agree to the payment of funds and delivery of the
Offered Securities in accordance with this Section 3 in lieu of that
required by paragraphs (a) and (c) of Rule 15c6-1 under the Exchange Act.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Offerors agree with the several Underwriters that:
(a) Each Offeror will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Offered Securities, the Offerors will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Offerors have furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectus is otherwise
required under Rule 424(b), the Offerors will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Offerors will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (3) when,
prior to termination of the offering of the Offered Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Offerors of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. Each Offeror will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Offerors promptly will
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(1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final Prospectus to you
in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries, including the Trust, which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Offerors will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Prospectus and the Final Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Offered Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Offered Securities and will
pay any fee of the NASD, in connection with its review of the offering;
provided that in no event shall the Company or the Trust be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject.
(f) Neither the Company nor the Trust will, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or the Trust, directly or indirectly, or
announce the offering of, capital securities, or the Debt Securities or any
debt securities substantially similar (including provisions with respect to
the deferral of interest) to the Debt Securities or any equity security
substantially similar to the Preferred Securities (except for the
Securities issued pursuant to this Agreement) or enter into any swap or any
other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the
Preferred Securities or the Debt Securities; provided, however, that the
foregoing restrictions shall not apply to any disposal of the Debt
Securities following any liquidation of the Trust; provided, further, that
the foregoing period shall only extend until the Business Day set forth on
Schedule I hereto.
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(g) The Offerors will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company or the Trust to
facilitate the sale or resale of the Offered Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the [preparation of the Supplement, the] issuance of
the Securities and the fees of the Trustee; (ii) the preparation, printing
or reproduction of the Registration Statement, Preliminary Prospectus and
Final Prospectus and each amendment or supplement to either of them; (iii)
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Preliminary Prospectus and Final Prospectus, and all amendments or
supplements to either of them, as may, in each case, be reasonably
requested for use in connection with the offering and sale of the Offered
Securities; (iv) the preparation, printing, authentication, issuance and
delivery of certificates for the Preferred Securities and the Debt
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Preferred Securities and the Debt
Securities; (v) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering of
the Offered Securities; (vi) any registration or qualification of the
Offered Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration and
qualification); (vii) the transportation and other expenses incurred by or
on behalf of Company or Trust representatives in connection with
presentations to prospective purchasers of the Offered Securities; (viii)
the fees and expenses of the Offerors' accountants and counsel (including
local and special counsel); (ix) the fees and expenses of any rating
agencies rating the Preferred Securities and, if applicable, the Debt
Securities; (x) the fees and expenses of the Property Trustee and the
Guarantee Trustee; (xi) the fees and expenses of the Debenture Trustee; and
(xii) all other costs and expenses incident to the performance by the
Company or the Trust of its obligations hereunder.
(i) Each of the Company and the Trust will, if requested by the
Representative, use its best efforts to cause the Preferred Securities to
be listed on the New York Stock Exchange.
(j) The Offerors will cooperate with the Underwriters and use their
reasonable commercial efforts to permit the Preferred Securities to be
eligible for clearance and settlement through the facilities of DTC.
(k) The Trust will use the net proceeds received by it from the sale
of the Preferred Securities and the Common Securities, and the Company will
use the proceeds received by it from the sale of the Debt Securities, in
the manner specified in the Final Prospectus under "Use of Proceeds."
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Offered Securities shall be subject to the
accuracy of the
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representations and warranties on the part of the Offerors contained herein as
of the Execution Time and the Closing Date, to the accuracy of the statements of
the Offerors made in any certificates pursuant to the provisions hereof, to the
performance by the Offerors of their 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 p.m. New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 p.m. New
York City time on such date or (ii) 9:30 a.m. on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company
and the Trust, shall have furnished to the Representatives its opinion,
dated the Closing Date and addressed to the Representatives, in form and
substance satisfactory to the Representatives and their counsel.
(c) The Offerors shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel to the
Offerors, dated the Closing Date and addressed to the Representatives, in
form and substance satisfactory to the Representatives and their counsel.
(d) The Offerors shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Property Trustee under
the Declaration, the Debenture Trustee under the Indenture and the
Guarantee Trustee under the Preferred Securities Guarantee, dated the
Closing Date and addressed to the Representatives, in form and substance
satisfactory to the Representatives and their counsel.
(e) The Representatives shall have received from Winston & ▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and
sale of the Preferred Securities, the Declaration, the Indenture, the
Preferred Securities Guaranty, this Agreement, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Offerors shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
and the Trust shall have furnished to the Representatives a certificate of
the Trust, signed by an Administrative Trustee of the
11
Trust, each dated the Closing Date, to the effect that the signers of such
certificates have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company and the
Trust, respectively, in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same effect
as if made on the Closing Date, and the Company and the Trust,
respectively, have complied with all the agreements and satisfied all
the conditions on their respective parts to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, or the Trust,
respectively, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time and at the Closing Date, the Company shall
have requested and caused PricewaterhouseCoopers, LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time and as
of the Closing Date, in form and substance satisfactory to the
Representatives.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the financial condition, business or properties of the Trust or
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Offered Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(i) On the Closing Date, (i) the Preferred Securities shall be rated "
" by ▇▇▇▇▇'▇ Investors Service, Inc., " " by Standard & Poor's Rating
Services and " " by Fitch, Inc., and the Offerors shall have delivered to
the Representatives evidence satisfactory to the Representatives confirming
that the Preferred Securities have such ratings, and (ii) since the
Execution Time, there shall not have occurred a downgrading in
12
the rating assigned to the Preferred Securities or any of the Company's
first mortgage bonds or commercial paper by any "nationally recognized
statistical rating agency," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and no such securities rating
agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Preferred
Securities or any of the Company's debt securities.
(j) Contemporaneously with the purchase of the Offered Securities on
the Closing Date (i) the Company shall purchase the Common Securities from
the Trust and (ii) the Trust shall purchase the Debt Securities from the
Company.
(k) Prior to the Closing Date, the Offerors shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the office of counsel for the Company, at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Offered
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of either of the Offerors to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse the
Underwriters severally on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Offered
Securities.
8. Indemnification and Contribution. (a) The Offerors jointly and
severally agree to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for
the registration of the Offered Securities as originally filed or in any
amendment thereof, or arise out of or are based upon an omission or alleged
omission to state
13
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact, in light of the
circumstances in which it was made, or an omission or alleged omission to state
a material fact required to be stated or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
in the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus (as
amended or supplemented if the Offerors shall have made any amendments or
supplements thereto and if used within any period during which an Underwriter
may be required by law to deliver a prospectus), and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Offerors will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Offerors by or on
behalf of any Underwriter through the Representatives specifically for inclusion
therein; provided, further, that the foregoing indemnity with respect to any
untrue statement contained in or omission from the Basic Prospectus or the
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
of the directors, officers, employees and agents of such Underwriter or any
person controlling such Underwriter) (i) from whom the person asserting any such
loss, claim, damage or liability purchased the Offered Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as then amended or supplemented if the Offerors shall
have furnished any amendments or supplements thereto) at or prior to the
confirmation of the sale of such Offered Securities to such person in any case
where such delivery is required by the Act and the untrue statement or omission
of a material fact contained in such Basic Prospectus or Preliminary Prospectus
was corrected in the Final Prospectus (or the Final Prospectus as so amended or
supplemented if the Offerors shall have furnished any amendments or supplements
thereto), and it is finally judicially determined that such delivery was
required to be made under the Act and was not so made, or (ii) that uses the
Final Prospectus after the expiration of such period, if any, during which the
Underwriter is required by law to deliver a prospectus, unless the Company shall
have been advised in writing of such intended use. This indemnity agreement will
be in addition to any liability which the Offerors may otherwise have. The
Company agrees to indemnify the Trust against all loss, liability claim, damage
and expense whatsoever, as due from the Trust under Section 8(a) hereunder.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Offerors, each of their respective directors and
officers, and each person who controls the Offerors within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Offerors to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the Offerors
by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in Section 8(a)
above. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Offerors acknowledge that [(i) the
statement set forth on the cover page regarding delivery of the Securities
and under the heading "Underwriting," (ii) the list of Underwriters and
their respective participation in the sale of the Offered Securities, (iii)
the sentences related to concessions and reallowances and (iv) the
paragraph related
14
to stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Final Prospectus] constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is for any reason held to be unenforceable by an
indemnified party although applicable in accordance with its terms
(including the requirements of Section 8(c) above), the Offerors and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to
15
which the Offerors and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and by the Underwriters on the other from
the offering of the Offered Securities; provided, however, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Offered Securities) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Offered Securities purchased by such
Underwriter hereunder; provided, further, that each Underwriter's
obligation to contribute to Losses hereunder shall be several and not
joint. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Offerors and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Offerors on the
one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Offerors shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received, and benefits received by the Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information provided by the Offerors on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Offerors and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Offerors within the meaning of either the
Act or the Exchange Act, each officer and director of the Company and each
Trustee of the Trust shall have the same rights to contribution as the
Offerors, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Offered Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Offered Securities set forth opposite their names in
Schedule II hereto bears to the aggregate principal amount of Offered Securities
set forth opposite the names of all the remaining Underwriters) the Offered
Securities which the defaulting Underwriter or
16
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Offered Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Offered Securities,
and if such nondefaulting Underwriters do not purchase all the Offered
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Offerors. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to either of the Offerors 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 Offerors
prior to delivery of and payment for the Offered Securities, if at any time
prior to such time (i) trading in the common stock of Exelon Corporation shall
have been suspended by the Commission or the New York Stock Exchange, or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities, or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war,
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Offered Securities
as contemplated by the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Offerors or their officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Offerors or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Offered
Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to , Attn: (fax no.: ( ) - ) and confirmed to at
Attention: ; or, if sent to the Company or the Trust, will be mailed, delivered
or telefaxed to Exelon Corporation, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor, ▇.▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Vice President and
Treasurer (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇).
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
17
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Agreement" shall mean this Underwriting Agreement including all
schedules attached hereto and made a part hereof.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Certificate of Trust" shall mean the certificate of trust filed with
the State of Delaware on May , 2003.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
18
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415," "Rule 424," "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the several Underwriters.
Very truly yours,
PECO ENERGY COMPANY
By:______________________________________________
Name:
Title:
PECO ENERGY CAPITAL TRUST [ ]
By:______________________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date
specified in Schedule I hereto.
[REPRESENTATIVE(S)]
By:__________________________________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement, dated , 20
Registration Statement No.
Representative(s):
Number and Description of Offered Securities:
Number:
Purchase Price:
Interest Rate:
Initial Public Offering
Price:
Dealer Discount:
Reallowance to Dealers:
Sinking Fund Provisions:
Other Provisions:
Time and Date of Delivery and Payment:
Time and Date ---
Place of Delivery:
Delivery ---
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued or guaranteed by the Company without the consent of the
Representative(s): days
SCHEDULE II
Number of
Preferred
Securities to
Underwriters be Purchased
------------ ------------
Total.........................................................