UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
September 7, 2011
Date of Report (Date of earliest event reported)
Commission File |
Exact Name of Registrant as Specified in Its Charter; Offices; and Telephone Number |
IRS Employer | ||
1-1839 | COMMONWEALTH EDISON COMPANY (an Illinois corporation) 440 South LaSalle Street Chicago, Illinois 60605-1028 (312) 394-4321 |
36-0938600 |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1 Registrants Business and Operations
Item 1.01. Entry into a Material Definitive Agreement.
On September 7, 2011, Commonwealth Edison Company (ComEd) issued an aggregate of $600 million principal amount of its first mortgage bonds, consisting of $250 million of its First Mortgage 1.95% Bonds, Series 111, due September 1, 2016, and $350 million of its First Mortgage 3.40% Bonds, Series 112, due September 1, 2021. See Item 2.03 below for a description of the Bonds and related agreements.
Section 2 Financial Information
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
On September 7, 2011, ComEd issued $250 million of its First Mortgage 1.95% Bonds, Series 111, due September 1, 2016 (Series 111 Bonds), and $350 million of its First Mortgage 3.40% Bonds, Series 112, due September 1, 2021 (Series 112 Bonds and, together with the Series 111 Bonds, the Bonds). The Bonds were issued pursuant to ComEds Mortgage dated July 1, 1923, as amended and supplemented by supplemental indentures, including the Supplemental Indenture dated August 1, 1944 (Mortgage) and the Supplemental Indenture dated as of August 22, 2011 (Supplemental Indenture). The Mortgage is a first mortgage on ComEds utility plant. The proceeds of the Bonds will be used by ComEd to refinance three series of variable rate tax-exempt bonds and one series of maturing first mortgage bonds, and to fund other general corporate purposes. The Bonds were registered under the Securities Act of 1933, as amended, pursuant to ComEds Registration Statement on Form S-3 (Registration No. 333-158920), which was declared effective upon filing with the Securities and Exchange Commission (SEC) on April 30, 2009.
The Series 111 Bonds and Series 112 Bonds carry an interest rate of 1.95% per annum and 3.40% per annum, respectively, which is payable semi-annually on March 1 and September 1, commencing March 1, 2012. The Series 111 Bonds and the Series 112 Bonds are redeemable in whole or in part at ComEds option (i) at any time prior to August 1, 2016, with respect to the Series 111 Bonds, or June 1, 2021, with respect to the Series 112 Bonds, at a redemption price equal to the greater of 100% of the principal amount to be redeemed or a make-whole redemption price calculated as provided in the Supplemental Indenture, plus accrued and unpaid interest up to but excluding the redemption date, and (ii) on or after August 1, 2016, with respect to the Series 111 Bonds, or June 1, 2021, with respect to the Series 112 Bonds, at a redemption price equal to 100% of the principal amount to be redeemed, plus accrued and unpaid interest up to but excluding the redemption date. A copy of the Supplemental Indenture, which sets forth the terms of the Bonds, is attached hereto as Exhibit 4.1 and is incorporated herein by reference.
In connection with the issuance of the Bonds, Sidley Austin LLP provided ComEd with the legal opinion attached to this Current Report as Exhibit 5.1.
A copy of the Underwriting Agreement dated August 30, 2011 between ComEd and BNP Paribas Securities Corp., U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein, is filed as Exhibit 1.1. to this Current Report. BNP Paribas Securities Corp., U.S. Bancorp Investments, Inc., Wells Fargo Securities, LLC, Deutsche Bank Securities Inc., CIBC World Markets Corp. and PNC Capital Markets LLC have banking affiliates who are lending parties in ComEds revolving credit facility. Some of the underwriters and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with ComEd and its affiliates. They have received customary fees and commissions for these transactions.
Section 9 Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits. |
The following exhibits are filed herewith and are exhibits to the Registration Statement on Form S-3, Registration No. 333-158920, as noted below:
Exhibit |
Registration Statement Exhibit No. |
Description | ||
1.1 | 1-1-3 | Underwriting Agreement dated August 30, 2011 between BNP Paribas Securities Corp., U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein | ||
4.1 | 4-4-3 | Supplemental Indenture dated as of August 22, 2011 from ComEd to BNY Mellon Trust Company of Illinois, as trustee, and D.G. Donovan, as co-trustee | ||
5.1 | 5-1-3 | Opinion dated September 7, 2011 of Sidley Austin LLP |
* * * * *
This Current Report includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. The factors that could cause actual results to differ materially from these forward-looking statements include those discussed herein as well as those discussed in (1) ComEds 2010 Annual Report on Form 10-K in (a) ITEM 1A. Risk Factors, (b) ITEM 7. Managements Discussion and Analysis of Financial Condition and Results of Operations and (c) ITEM 8. Financial Statements and Supplementary Data: Note 18; (2) ComEds Quarterly Report on Form 10-Q for the quarter ended June 30, 2011 in (a) Part II, Other Information, ITEM 1A. Risk Factors, (b) Part 1, Financial Information, ITEM 2. Managements Discussion and Analysis of Financial Condition and Results of Operations and (c) Part I, Financial Information, ITEM 1. Financial Statements: Note 13; and (3) other factors discussed in filings with the SEC by ComEd. Readers are cautioned not to place undue reliance on these forward-looking statements, which apply only as of the date of this Current Report. ComEd does not undertake any obligation to publicly release any revision to its forward-looking statements to reflect events or circumstances after the date of this Current Report.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, ComEd has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
COMMONWEALTH EDISON COMPANY |
/s/ Joseph R. Trpik, Jr. |
Joseph R. Trpik, Jr. |
Senior Vice President, Chief Financial Officer and Treasurer |
Commonwealth Edison Company |
September 7, 2011
EXHIBIT INDEX
Exhibit |
Registration Statement |
Description | ||
1.1 | 1-1-3 | Underwriting Agreement dated August 30, 2011 between BNP Paribas Securities Corp., U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein | ||
4.1 | 4-4-3 | Supplemental Indenture dated as of August 22, 2011 from ComEd to BNY Mellon Trust Company of Illinois, as trustee, and D.G. Donovan, as co-trustee | ||
5.1 | 5-1-3 | Opinion dated September 7, 2011 of Sidley Austin LLP |
Exhibit 1.1
Execution Copy
Commonwealth Edison Company
First Mortgage 1.95% Bonds, Series 111, due 2016
First Mortgage 3.40% Bonds, Series 112, due 2021
UNDERWRITING AGREEMENT
August 30, 2011
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
1. Introductory. Commonwealth Edison Company, an Illinois corporation (the Company), proposes to issue and sell from time to time First Mortgage Bonds (the Mortgage Bonds). The Mortgage Bonds will be issued by the Company under its Mortgage, dated as of July 1, 1923, as amended and supplemented through the date hereof and as further supplemented by the Supplemental Indenture dated as of August 22, 2011 (the Supplement) from the Company to BNY Mellon Trust Company of Illinois, as trustee (the Trustee), and D.G. Donovan, as co-trustee (the Co-Trustee). As used herein, the term Mortgage refers to the Companys Mortgage referred to above together with any and all amendments or supplements thereto, including the Supplement. The Company proposes to sell to the underwriters named in Schedule II hereto (the Underwriters), for whom you are acting as Representatives (the Representatives), series of Mortgage Bonds in the aggregate principal amounts and with the terms specified in Part A of Schedule I hereto (the Purchased Bonds).
2. Representations and Warranties of the Company. As of the date of this Agreement, the Applicable Time of Sale and the Closing Date, the Company represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the Commission) an automatic shelf registration statement on Form S-3 (Registration No. 333-158920) relating to unsecured notes and first mortgage bonds, which include the Purchased Bonds (the Securities), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the Act). Such registration statement became effective upon filing under Rule 462(e) under the Act. Such registration statement, including all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the Act or the Securities Exchange Act of 1934, as amended (the Exchange Act), including by any information contained in any prospectus, preliminary prospectus supplement or prospectus supplement that is deemed to be a part of the Registration Statement pursuant to Rule 430B, are referred to herein as the Registration Statement, and the prospectus relating to the Securities, including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Act or the Exchange Act, including by any preliminary prospectus supplement relating to the Purchased Bonds or the Prospectus Supplement (as defined below), is referred to herein as the Prospectus; provided, however, that a supplement to the Prospectus relating to an offering of Securities, other than the Purchased Bonds, shall be deemed to have supplemented the Prospectus only with respect to the offering of the other Securities to which it relates. All documents filed by the Company with the Commission pursuant to the Exchange Act and incorporated by reference in the Registration Statement or the Prospectus, as aforesaid, are hereinafter referred to as the Incorporated Documents.
(b) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, the Company was a well-known seasoned issuer as defined in Rule 405. The Company agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r). In addition, (x) at the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Purchased Bonds and (y) as of the date of this Agreement (with such date being used as the determination date for purposes of this clause (y)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an Ineligible Issuer.
(c) The Registration Statement, the Prospectus and the Mortgage, at the time the Registration Statement became effective complied, as of the date hereof comply and as of the Closing Date (as hereinafter defined) will comply, in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act of 1939, as amended (the Trust Indenture Act), and the rules and regulations of the Commission under such Acts; the Incorporated Documents, as of their respective dates of filing with the Commission, complied and will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; the Registration Statement, at the time it became effective under the Act and as of the new effective date with respect to the Purchased Bonds pursuant to, and within the meaning of, Rule 430B(f)(2) under the Act, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, at the time the Registration Statement became effective, did not, as of the date hereof does not and as of the Closing Date will not, include an 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 representations and warranties in this Section 2(c) shall not apply to (i) that part of the Registration Statement which constitutes the Statements of Eligibility and Qualification (Forms T-1 and T-2) under the Trust Indenture Act or (ii) statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with the Provided Statements (as defined in Section 8(b) below).
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(d) The Disclosure Package (as defined below in Section 4(d)) did not, as of the time and date designated as the Applicable Time of Sale in Part C of Schedule I hereto (the Applicable Time of Sale), include an 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 representation and warranty made in this Section 2(d) shall not apply to statements in or omissions from the Disclosure Package made in reliance upon and in conformity with the Provided Statements.
(e) The Company has not made and will not make (other than the final term sheet prepared and filed pursuant to Section 4(b) hereof) any offer relating to the Purchased Bonds that would constitute a free writing prospectus (as defined in Rule 405 under the Act), without the prior consent of the Representatives; the Company will comply with the requirements of Rule 433 under the Act with respect to any such free writing prospectus; any such free writing prospectus will not, as of its issue date and through the Closing Date, include any information that is inconsistent with the information contained in, or incorporated by reference into, the Registration Statement and the Prospectus, and any such free writing prospectus, when taken together with the information contained in, or incorporated by reference into, the Registration Statement, the Disclosure Package and the Prospectus, did not, when issued or filed pursuant to Rule 433 under the Act, include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. For the purposes of clarity, nothing in this Section 2(e) shall restrict the Company from making any filings required in order to comply with its reporting obligations under the Exchange Act or the rules and regulations of the Commission promulgated thereunder.
(f) PricewaterhouseCoopers LLP, the accountants who certified certain of the financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, are independent registered public accountants as required by the Act and the rules and regulations of the Commission thereunder.
(g) The financial statements included or incorporated by reference in the Disclosure Package and the Prospectus present fairly in all material respects the financial position, results of operations and cash flows of the Company at the respective dates and for the respective periods specified and, except as otherwise stated in the Disclosure Package and the Prospectus, such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis during the periods involved. The Company has no material contingent obligation which is not disclosed in the Disclosure Package and the Prospectus.
(h) Except as set forth in or contemplated by the Disclosure Package and the Prospectus, no material transaction has been entered into by the Company otherwise than in the ordinary course of business and no materially adverse change has occurred in the condition, financial or otherwise, of the Company, in each case since the respective dates as of which information is given in the Disclosure Package and the Prospectus.
(i) The Company 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 Disclosure Package and the Prospectus.
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(j) Each significant subsidiary of the Company, as defined in Rule 1-02 of Regulation S-X of the Commission (each a 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 the Company free and clear of any pledge, lien, encumbrance, claim or equity.
(k) Neither the Company 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 to which it is subject or bound, except in each case to such extent as may be set forth in the Disclosure Package and the Prospectus; and the execution and delivery of this Agreement, the Mortgage and the Purchased Bonds, the incurrence of the obligations herein and therein set forth and the consummation of the transactions herein and therein contemplated will not conflict with or constitute a breach of, or default under, the articles of incorporation or by-laws of the Company or any mortgage, contract, lease, note or other instrument to which the Company 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 to which it is subject or bound.
(l) The Company has filed with the Illinois Commerce Commission (the ICC) a petition with respect to the issuance and sale of the Purchased Bonds and the ICC has issued its order that authorizes and approves such issuance and sale. No consent of or approval by any other public board or body or administrative agency, federal or state, is necessary to authorize the issuance and sale of the Purchased Bonds, except as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Purchased Bonds by the Underwriters in the manner contemplated herein and in the Disclosure Package and the Prospectus.
(m) There is no pending or threatened suit or proceeding before any court or governmental agency, authority or body or any arbitration involving the Company or any of its Significant Subsidiaries required to be disclosed in the Registration Statement or Prospectus which is not adequately disclosed in the Registration Statement or Prospectus.
(n) This Agreement has been duly authorized, executed and delivered by the Company.
(o) The Mortgage has been duly authorized by the necessary corporate action and duly qualified under the Trust Indenture Act; and the Mortgage has been duly authorized and, assuming due authorization, execution and delivery of the Supplement by the Trustee and due execution and delivery of the Supplement by the Co-Trustee, when executed and delivered
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by the Company, will constitute a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors rights generally from time to time in effect and to general principles of equity).
(p) The issuance and sale of the Purchased Bonds by the Company in accordance with the terms of this Agreement have been duly authorized; the Purchased Bonds, when executed and authenticated in accordance with the provisions of the Mortgage and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company entitled to the benefits of the Mortgage (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other laws affecting creditors rights generally from time to time in effect and to general principles of equity), and the holders of the Purchased Bonds will be entitled to the payment of principal and interest as therein provided; and the statements under the headings Description of the Bonds in the Disclosure Package and the Prospectus Supplement (as defined below) and Description of Bonds in the Disclosure Package and the Prospectus fairly summarize the matters therein described.
(q) The franchise granted to the Company by the City Council of the City of Chicago under an ordinance effective January 1, 1992, is valid and subsisting and duly authorizes the Company to engage in the electric utility business conducted by it in such City; and the several franchises of the Company outside the City of Chicago are valid and subsisting and authorize the Company to carry on its utility business in the several communities, capable of granting franchises, located in the territory served by the Company outside the City of Chicago (with immaterial exceptions).
(r) The Company has good and sufficient title to all property described or referred to in the Mortgage and purported to be conveyed thereby, subject only to the lien of the Mortgage and permitted liens 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); the Mortgage has been duly filed for recordation in such manner and in such places as is required by law in order to give constructive notice of, establish, preserve and protect the lien of the Mortgage; the Mortgage constitutes a valid, direct first mortgage lien on substantially all property (including franchises) now owned by the Company, except property expressly excepted by the terms of the Mortgage, subject to permitted liens as defined therein; and the Mortgage will constitute a valid, direct first mortgage lien on all property of the character of that now subject to the lien of the Mortgage hereafter acquired by the Company, subject to permitted liens as defined in the Mortgage, and to liens, if any, existing or placed on such after-acquired property at the time of the acquisition thereof.
(s) The Company maintains systems of internal accounting controls sufficient to provide reasonable assurance that transactions are executed in accordance with managements general or specific authorizations, transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability, access to assets is permitted only in accordance with managements general or specific authorizations, and the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(t) The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act, such disclosure controls and procedures have been designed to ensure that material information relating to the Company is made known to the Companys principal executive officer and principal financial officer by others within those entities, and such disclosure controls and procedures are effective.
(u) The Company is not, and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be, required to register as an investment company under the Investment Company Act.
(v) There is, and has been, no failure on the part of the Company to comply, in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith.
Any certificate signed by any officer of the Company and delivered to you or to counsel for the Underwriters in connection with the offering of the Purchased Bonds shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
3. Purchase, Offering and Delivery Closing Date. Subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company at the purchase price set forth in Schedule I hereto, the principal amounts of the Purchased Bonds set forth opposite such Underwriters name in Schedule II hereto. It is understood that the Underwriters propose to offer the Purchased Bonds for sale to the public as set forth in the Disclosure Package, the Prospectus, the Prospectus Supplement (as hereinafter defined) relating to the Purchased Bonds and the final term sheet contemplated by Section 4(b) hereof. The time and date of delivery and payment shall be the time and date specified in Schedule I hereto; provided, however, that such time or date may be accelerated or extended by agreement between the Company and the Representatives or as provided in Section 9 hereof. The time and date of such delivery and payment are herein referred to as the Closing Date. Delivery of the Purchased Bonds 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 the account specified by the Company. Delivery of the Purchased Bonds shall be made through the facilities of The Depository Trust Company.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Promptly following the execution of this Agreement, the Company will cause the Prospectus, including as part thereof a prospectus supplement relating to the Purchased Bonds (the Prospectus Supplement), to be filed with the Commission pursuant to Rule 424
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under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act, and the Company will promptly advise the Representatives when such filing has been made. Prior to such filing, the Company will cooperate with the Representatives in the preparation of the Prospectus Supplement to assure that the Representatives have no reasonable objection to the form or content thereof when filed.
(b) The Company shall prepare a final term sheet, containing solely a description of the Purchased Bonds, a copy of which shall be furnished to the Representatives for their review prior to filing. The Company will not file such term sheet without the approval of the Representatives, which approval shall not be unreasonably withheld. Upon receipt of such approval of the Representatives, the Company shall file such term sheet pursuant to Rule 433(d) under the Act within the time period prescribed by such rule; and shall file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act.
(c) The Company will promptly advise the Representatives (i) when any amendment to the Registration Statement shall have become effective, (ii) of any request by the Commission for any amendment of the Registration Statement or amendment or supplement to the Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice objecting to its use or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Purchased Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will not file any amendment to the Registration Statement or amendment or supplement to the Prospectus unless the Company has furnished the Representatives a copy for their review prior to filing and will not file any such proposed amendment or supplement without the consent of the Representatives, which consent shall not be unreasonably withheld. The Company 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.
(d) If, at any time when a prospectus relating to the Purchased Bonds is required to be delivered under the Act (including circumstances when such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Prospectus as then amended or supplemented would include an 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 or supplement the Registration Statement or the Prospectus to comply with the Act or the Exchange Act or the rules and regulations of the Commission under such Acts, the Company promptly will prepare and file with the Commission, subject to paragraph (c) of this Section 4, an amendment or supplement that will correct such statement or omission or an amendment or supplement that will effect such compliance. If, prior to the Closing Date, there occurs an event or development as a result of which the Disclosure Package (as defined below) would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances when the Disclosure Package is delivered to a purchaser, not misleading, the Company promptly will notify the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented, and will promptly prepare an amendment or supplement that will correct such statement or omission, subject to
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paragraph (c) of this Section 4. Disclosure Package shall mean (i) the preliminary prospectus supplement, including the base prospectus, as amended and supplemented to the Applicable Time of Sale, (ii) the final term sheet contemplated by Section 4(b) hereof, and (iii) any Issuer Free Writing Prospectus (as defined in Section 8(a) below). Notwithstanding any provision hereof to the contrary, each document included in the Disclosure Package shall be deemed to include all documents (including any Current Report on Form 8-K (other than any information furnished under Items 2.02, 7.01 or 9.01 of any such Current Report on Form 8-K)) incorporated therein by reference, whether any such Incorporated Document is filed before or after the document into which it is incorporated, so long as the Incorporated Document is filed sufficiently before the Applicable Time of Sale to permit conveyance to the investor.
(e) The Company will furnish without charge to (i) each of the Representatives and counsel for the Underwriters a signed copy of the Registration Statement (but without exhibits incorporated by reference), as originally filed, all amendments thereto filed prior to the Closing Date and all Incorporated Documents (including exhibits, other than exhibits incorporated by reference), (ii) each other Underwriter a conformed copy of the Registration Statement (but without exhibits), as originally filed, all amendments thereto (but without exhibits) and all Incorporated Documents (but without exhibits other than the Companys latest Annual Report to shareholders) and (iii) each Underwriter as many copies of the Prospectus, the Prospectus Supplement thereto and, so long as delivery of a prospectus or supplement thereto by an Underwriter or dealer may be required under the Act (including circumstances when such requirement may be satisfied pursuant to Rule 172), any amendments thereof and supplements thereto (but without Incorporated Documents or exhibits), as soon as available and in such quantities as the Representatives may reasonably request.
(f) The Company will arrange, if necessary, for the qualification of the Purchased Bonds for sale under the laws of such jurisdictions within the United States as the Representatives may designate, provided, that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or 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 Purchased Bonds) in any jurisdiction where it is not now so subject. The Company will promptly advise the Representatives of the receipt by the Company of any notification with respect to the qualification of the Purchased Bonds for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(g) The Company agrees to pay the costs and expenses relating to the following matters: (i) the preparation of the Prospectus (including the preliminary prospectus supplement), the issuance of the Purchased Bonds and the fees of the Trustee or Co-Trustee; (ii) the preparation, printing or reproduction and filing of the Registration Statement (including financial statements and exhibits thereto), the Prospectus (including the preliminary prospectus supplement) and each amendment or supplement thereto, and any Issuer Free Writing Prospectus (as defined in Section 8(a) below); (iii) the printing (or reproduction) and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Prospectus (including the preliminary prospectus supplement), and all amendments or supplements to it, as may be reasonably requested for use in connection with the offering and sale of the Purchased Bonds; (iv) the preparation, printing, authentication, issuance and delivery of certificates for the Purchased Bonds, including any stamp or transfer taxes in connection with
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the original issuance and sale of the Purchased Bonds; (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 Purchased Bonds; (vi) any registration or qualification of the Purchased Bonds for offer and sale under the securities or blue sky laws of the several states (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Purchased Bonds; (viii) the fees and expenses of the Companys accountants and counsel (including local and special counsel); (ix) the fees and expenses of any rating agencies rating the Purchased Bonds; and (x) all other costs and expenses incident to the performance by the Company of its obligations hereunder.
(h) During the period beginning from the date of this Agreement and continuing to and including the later of (i) the termination of trading restrictions on the Purchased Bonds, as notified to the Company by the Representatives, and (ii) the Closing Date, the Company will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after the Closing Date and which are substantially similar to the Purchased Bonds, without the prior written consent of the Representatives; provided, however, that in no event shall the foregoing period extend more than fifteen calendar days from the date of this Agreement.
(i) The Company acknowledges and agrees that in connection with the offering or sale of the Purchased Bonds or any other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other, exists by reason of this Agreement; (ii) the relationship between the Company, on the one hand, and the Underwriters, on the other, is entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company in connection with the purchase and sale of the Purchased Bonds shall be limited to those duties and obligations specifically stated herein or that arise as a result of the purchase and sale of the Purchased Bonds pursuant hereto under the U.S. federal securities laws or any applicable rules of the National Association of Securities Dealers, Inc.; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company.
(j) The Company will file timely such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement (which need not be audited) covering a period of at least 12 months beginning after the date of this Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
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5. Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase and pay for the Purchased Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, the Applicable Time of Sale and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; the final term sheet contemplated by Section 4(b) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that purpose shall then be pending before, or threatened by, the Commission.
(b) The Company shall have furnished to the Representatives the opinion of Sidley Austin LLP, counsel for the Company, dated the Closing Date and addressed to the Representatives, in form and substance satisfactory to each of the Representatives and their counsel.
(c) The Representatives shall have received from Winston & Strawn LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Purchased Bonds, the Mortgage, the Registration Statement, the Prospectus, the Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chief Financial Officer, the Treasurer or Assistant Treasurer of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Prospectus, any amendment or supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and
(iii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been initiated or, to his or her knowledge, threatened by the Commission.
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(e) On the date hereof and on the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively the date hereof and the Closing Date, in form and substance satisfactory to the Representatives.
(f) Subsequent to the date of this Agreement, or if earlier, the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package or the Prospectus (exclusive of any amendment or 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 public offering or delivery of the Purchased Bonds as contemplated by the Disclosure Package or the Prospectus (exclusive of any amendment or supplement thereto).
(g) On the Closing Date, (i) the Purchased Bonds shall be rated Baa1 by Moodys Investors Service, Inc. and A- by Standard & Poors Ratings Services, and the Company shall have delivered to the Representatives evidence satisfactory to the Representatives confirming that the Purchased Bonds have such ratings, and (ii) subsequent to the date of this Agreement, there shall not have occurred a downgrading in the rating assigned to the Purchased Bonds or any of the Companys 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 agencies shall have publicly announced that it has under surveillance, review or watch, with possible negative implications, its ratings of the Purchased Bonds or any of the Companys other debt securities.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions or 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 their counsel, 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 Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will be delivered at the office of counsel for the Company, at Sidley Austin LLP, One South Dearborn Street, Chicago, Illinois 60603, on the Closing Date.
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6. Conditions of Companys Obligation. The obligation of the Company to deliver the Purchased Bonds upon payment therefor shall be subject to the following conditions:
On the Closing Date, the order of the ICC referred to in subparagraph (l) of Section 2 hereof shall be in full force and effect substantially in the form as entered by the ICC; the Mortgage shall be qualified under the Trust Indenture Act as and to the extent required by such Act; and no stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for that purpose shall then be pending before, or threatened by, the Commission.
In case any of the conditions specified above in this Section 6 shall not have been fulfilled, this Agreement may be terminated by the Company by delivering written notice of termination to the Representatives. Any such termination shall be without liability of any party to any other party except to the extent provided in Sections 7 and 8 hereof.
7. Reimbursement of Underwriters Expenses. If the sale of the Purchased Bonds provided for herein is not consummated because any condition to the obligations of the Underwriters or the Company set forth in Section 5 and Section 6 hereof, respectively, is not satisfied, because of any termination pursuant to Section 10 hereof, or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provisions hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon 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 Purchased Bonds.
8. Indemnification and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, any preliminary prospectus or the Prospectus, or in any amendment thereof or supplement thereto, any issuer free writing prospectus (as defined in Rule 433 under the Act and being hereinafter referred to as an Issuer Free Writing Prospectus), or any issuer information filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with the Provided Statements. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
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(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company and each of its directors, officers, employees and agents, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth (i) in the last paragraph of the cover page of the Prospectus Supplement regarding the delivery of the Purchased Bonds, and (ii) under the heading Underwriting in the Prospectus Supplement, (A) the first paragraph under the sub-heading Commissions and Discounts related to concessions and discounts and (B) the paragraphs under the sub-heading Price Stabilization and Short Positions related to stabilization, over-allotments, syndicate covering transactions and penalty bids (collectively, the Provided Statements), constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Registration Statement, any preliminary prospectus or the Prospectus (or in any amendment or supplement thereto), or any Issuer Free Writing 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 partys choice at the indemnifying partys 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 partys 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
13
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 a failure to act by or on behalf of an indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable or insufficient to hold harmless an indemnified party under section (a) or (b) above, then the Company 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 the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and by the Underwriters on the other from the offering of the Purchased Bonds. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) of the Purchased Bonds received by it, and benefits received by the Underwriters shall be deemed to be equal to the total purchase discounts and commissions with respect to the Purchased Bonds, in each case set forth on the cover of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, information and opportunity to correct or prevent such untrue statement or omission; provided, however, that in no case shall any Underwriters (except as may be provided in any agreement among the Underwriters relating to the offering of the Purchased Bonds) be responsible for any amount in excess of the purchase discount or commission applicable to the Purchased Bonds purchased by such Underwriters hereunder; provided, further, that each Underwriters obligation to contribute to Losses hereunder shall be several and not joint. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act and each officer, director, employee or agent of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d).
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9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Purchased Bonds 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 amount of the Purchased Bonds set forth opposite their names in Schedule II hereto bears to the aggregate amount of the Purchased Bonds set forth opposite the names of all the remaining Underwriters) the Purchased Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase, provided, however, that in the event that the aggregate principal amount of Purchased Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amounts of the Purchased Bonds 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 Purchased Bonds, and if such nondefaulting Underwriters do not purchase all the Purchased Bonds, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period, not exceeding five business days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Prospectus Supplement or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company or any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Purchased Bonds, if at any time after the date hereof and prior to the delivery of and payment for the Purchased Bonds (i) trading in Exelon Corporations common stock 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; (iii) a major disruption of settlements of securities or clearance services in the United States shall have occurred; or (iv) 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, impracticable or inadvisable to proceed with the offering or delivery of the Purchased Bonds as contemplated by the Disclosure Package and the Prospectus.
11. Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the Company or any of the officers, directors or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Purchased Bonds. The provisions of Sections 7 and 8 hereof shall survive the termination or cancellation 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 them at the
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addresses specified in Schedule I hereto, or, if sent to the Company, will be mailed, delivered or telefaxed to Commonwealth Edison Company, 440 South LaSalle Street, Suite 3300, Chicago, Illinois 60605-1028, Attention: Senior Vice President, Chief Financial Officer and Treasurer (fax no.: (312) 394-2867), with a copy to Exelon Corporation, 10 South Dearborn Street, 52nd Floor, P.O. Box 805379, Chicago, Illinois 60680-5379, Attention: Director of Finance (fax no.: (312) 394-4082) and a copy to Commonwealth Edison Company, 440 South LaSalle Street, Suite 3300, Chicago, Illinois 60605-1028, Attention: General Counsel (fax no.: (312) 394-5433).
13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns 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. The term successors and assigns as used in this Agreement shall not include any purchaser, as such purchaser, of any of the Purchased Bonds from any of the Underwriters.
14. Representations, Warranty and Agreement of the Underwriters. The Representatives represent and warrant to the Company that they are authorized to act as the representatives of the Underwriters in connection with this financing, and the Representatives execution and delivery of this Agreement and any action under this Agreement taken by such Representatives will be binding upon all Underwriters. Each Underwriter represents and warrants to, and agrees with, the Company and each other Underwriter that it has not made, and will not make (other than one or more term sheets relating to the Purchased Bonds containing information not inconsistent with the final term sheet prepared and filed pursuant to Section 4(b) hereof) any offer relating to the Purchased Bonds that would constitute an issuer free writing prospectus (as defined in Rule 433 of the Act) or that would otherwise constitute a free writing prospectus under Rule 433 under the Act required to be filed with the Commission, without the prior consent of the Company and the Representatives.
15. Interpretation When No Representatives. In the event no Underwriters are named in Schedule II hereto, the term Underwriters shall be deemed for all purposes of this Agreement to be the Representative or Representatives named as such in Schedule I hereto, the principal amounts of the Purchased Bonds to be purchased by any such Underwriter shall be that set opposite its name in Schedule I hereto and all references to the Underwriters shall be deemed to be the Representative or Representatives named in Schedule I hereto.
16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument.
17. 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.
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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 Agreement and your acceptance shall represent a binding agreement between the Company and each of the several Underwriters.
Very truly yours, | ||||
COMMONWEALTH EDISON COMPANY | ||||
By: | /s/ Joseph R. Trpik, Jr. | |||
Name: | Joseph R. Trpik, Jr. | |||
Title: | Senior Vice President, Chief Financial Officer and Treasurer |
Signature Page to Underwriting Agreement
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
BNP PARIBAS SECURITIES CORP. | ||||
By: | /s/ Tim McCann | |||
Name: | Tim McCann | |||
Title: | Managing Director | |||
U.S. BANCORP INVESTMENTS, INC. | ||||
By: | /s/ Phil Bennett | |||
Name: | Phil Bennett | |||
Title: | Managing Director | |||
WELLS FARGO SECURITIES, LLC | ||||
By: | /s/ Carolyn Hurley | |||
Name: | Carolyn Hurley | |||
Title: | Director |
For themselves and the other several Underwriters named in Schedule II hereto.
Signature Page to Underwriting Agreement
SCHEDULE I
Representatives: | BNP Paribas Securities Corp. U.S. Bancorp Investments, Inc. Wells Fargo Securities, LLC |
A. | Purchased Bonds |
Purchase Price and Description of the Purchased Bonds:
Series 111 Bonds | Series 112 Bonds | |||||||
Principal Amount: |
$ | 250,000,000 | $ | 350,000,000 | ||||
Purchase Price: |
99.400 | % | 99.317 | % | ||||
Interest Rate: |
1.950 | % | 3.400 | % | ||||
Public Offering Price: |
100 | % | 99.967 | % | ||||
Underwriting Discount: |
0.600 | % | 0.650 | % | ||||
Selling Concession: |
0.350 | % | 0.400 | % | ||||
Reallowance to Dealers: |
0.250 | % | 0.250 | % |
Maturity: | September 1, 2016 | September 1, 2021 | ||
Sinking Fund Provisions: | None | None | ||
Redemption Provisions: | At any time prior to August 1, 2016 (one month prior to the maturity date of the Series 111 Bonds), the Company may, at its option, redeem the Series 111 Bonds in whole or in part at a redemption price equal to the greater of:
100% of the principal amount of the Series 111 Bonds to be redeemed, plus accrued and unpaid interest on those Series 111 Bonds up to but excluding the redemption date, or |
At any time prior to June 1, 2021 (three months prior to the maturity date of the Series 112 Bonds), the Company may, at its option, redeem the Series 112 Bonds in whole or in part at a redemption price equal to the greater of:
100% of the principal amount of the Series 112 Bonds to be redeemed, plus accrued and unpaid interest on those Series 112 Bonds up to but excluding the redemption date, or |
Schedule I
Series 111 Bonds |
Series 112 Bonds | |||
as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Series 111 Bonds to be redeemed (not including any portion of payments of interest accrued as of the redemption date) discounted to the redemption date on a semi-annual basis at the Adjusted Treasury Rate plus 15 basis points, plus accrued and unpaid interest on those Series 111 Bonds up to but excluding the redemption date.
The redemption price will be calculated assuming a 360-day year consisting of twelve 30-day months.
At any time on or after August 1, 2016, the Company may redeem the Series 111 Bonds in whole or in part at 100% of the principal amount of the Series 111 Bonds to be redeemed, plus accrued and unpaid interest on those Series 111 Bonds up to but excluding the redemption date. |
as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of principal and interest on the Series 112 Bonds to be redeemed (not including any portion of payments of interest accrued as of the redemption date) discounted to the redemption date on a semi-annual basis at the Adjusted Treasury Rate plus 20 basis points, plus accrued and unpaid interest on those Series 112 Bonds up to but excluding the redemption date.
The redemption price will be calculated assuming a 360-day year consisting of twelve 30-day months.
At any time on or after June 1, 2021, the Company may redeem the Series 112 Bonds in whole or in part at 100% of the principal amount of the Series 112 Bonds to be redeemed, plus accrued and unpaid interest on those Series 112 Bonds up to but excluding the redemption date. |
B. Definitions
For purposes of Part A above, the following terms shall have the following meanings:
Adjusted Treasury Rate means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.
Business Day means any day that is not a day on which banking institutions in New York City are authorized or required by law or regulation to close.
Comparable Treasury Issue means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Series 111 or
Schedule I
Series 112 Bonds, as applicable, to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of those Bonds.
Comparable Treasury Price means, with respect to any redemption date:
| the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations; or |
| if the trustee obtains fewer than three Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received. |
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means (1) each of BNP Paribas Securities Corp., Wells Fargo Securities, LLC and a designee of U.S. Bancorp Investments, Inc., or any of their affiliates, and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in the United States of America (Primary Treasury Dealer), in which case the Company shall substitute another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the trustee by that Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
C. | Other Provisions relating to the Purchased Bonds: |
Time and Date of Delivery and Payment:
Time and Date 9:00 a.m., Central Time, Wednesday, September 7, 2011
Place of Delivery:
Delivery Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Office for Examination of Purchased Bonds:
Office of Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Applicable Time of Sale pursuant to Section 2(d) of the Underwriting Agreement:
1:45 p.m., Eastern Time, Tuesday, August 30, 2011
Schedule I
Address for Notices to Representatives pursuant to Section 12 of Underwriting Agreement:
BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Attention: Syndicate Desk - 7th Floor
Facsimile: (917) 472-4745
U.S. Bancorp Investments, Inc.
214 N. Tryon Street, 26th Floor
Charlotte, North Carolina 28202
Facsimile: (877) 219-0512
Wells Fargo Securities, LLC
301 South College Street, 6th Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Facsimile: (704) 383-9165
Schedule I
SCHEDULE II
Name of Underwriter |
Principal Amount of Series 111 Bonds |
Principal Amount of Series 112 Bonds |
||||||
BNP Paribas Securities Corp. |
$ | 47,334,000 | $ | 66,267,000 | ||||
U.S. Bancorp Investments, Inc. |
47,333,000 | 66,267,000 | ||||||
Wells Fargo Securities, LLC |
47,333,000 | 66,266,000 | ||||||
Deutsche Bank Securities Inc. |
37,500,000 | 52,500,000 | ||||||
Samuel A. Ramirez & Company, Inc. |
37,500,000 | 52,500,000 | ||||||
CIBC World Markets Corp. |
16,500,000 | 23,100,000 | ||||||
PNC Capital Markets LLC |
16,500,000 | 23,100,000 | ||||||
|
|
|
|
|||||
$ | 250,000,000 | $ | 350,000,000 | |||||
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Schedule II
Exhibit 4.1
This instrument was prepared by,
and when recorded should be
returned to:
Richard W. Astle
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
SUPPLEMENTAL INDENTURE
Dated as of August 22, 2011
COMMONWEALTH EDISON COMPANY
to
BNY MELLON TRUST COMPANY OF ILLINOIS
and
D.G. DONOVAN
Trustees Under Mortgage Dated July 1, 1923,
and Certain
Indentures Supplemental Thereto
Providing for Issuance of
FIRST MORTGAGE 1.95% BONDS, SERIES 111
Due September 1, 2016
and
FIRST MORTGAGE 3.40% BONDS, SERIES 112
Due September 1, 2021
THIS SUPPLEMENTAL INDENTURE, dated as of August 22, 2011, between COMMONWEALTH EDISON COMPANY, a corporation organized and existing under the laws of the State of Illinois (hereinafter called the Company) having an address at 440 South LaSalle Street, Suite 3300, Chicago, Illinois 60605, party of the first part, BNY MELLON TRUST COMPANY OF ILLINOIS, a trust company organized and existing under the laws of the State of Illinois having an address at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602, and D.G. DONOVAN, an individual having an address at 2 North LaSalle Street, Suite 1020, Chicago, Illinois 60602, as Trustee and Co-Trustee, respectively, under the Mortgage of the Company dated July 1, 1923, as amended and supplemented by Supplemental Indenture dated August 1, 1944 and the subsequent supplemental indentures hereinafter mentioned, parties of the second part (said Trustee being hereinafter called the Trustee, the Trustee and said Co-Trustee being hereinafter together called the Trustees, and said Mortgage dated July 1, 1923, as amended and supplemented by said Supplemental Indenture dated August 1, 1944 and subsequent supplemental indentures, being hereinafter called the Mortgage),
W I T N E S S E T H:
WHEREAS, the Company duly executed and delivered the Mortgage to provide for the issue of, and to secure, its bonds, issuable in series and without limit as to principal amount except as provided in the Mortgage; and
WHEREAS, the Company from time to time has executed and delivered supplemental indentures to the Mortgage to provide for (i) the creation of additional series of bonds secured by the Mortgage, (ii) the amendment of certain of the terms and provisions of the Mortgage and (iii) the confirmation of the lien of the Mortgage upon property of the Company, such supplemental indentures that are currently effective and the respective dates, parties thereto and purposes thereof, being as follows:
Supplemental Indenture Date |
Parties | Providing For | ||
August 1, 1944 | Company to Continental Illinois National Bank and Trust Company of Chicago and Edmond B. Stofft, as Trustee and Co-Trustee | Amendment and restatement of Mortgage dated July 1, 1923 | ||
August 1, 1946 | Company to Continental Illinois National Bank and Trust Company of Chicago and Edmond B. Stofft, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 1, 1953 | Company to Continental Illinois National Bank and Trust Company of Chicago and Edmond B. Stofft, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
March 31, 1967 | Company to Continental Illinois National Bank and Trust Company of Chicago and Edward J. Friedrich, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 1, 1967 | Company to Continental Illinois National Bank and Trust Company of Chicago and Edward J. Friedrich, as Trustee and Co-Trustee | Amendment of Sections 3.01, 3.02, 3.05 and 3.14 of the Mortgage and issuance of First Mortgage 5-3/8% Bonds, Series Y | ||
February 28, 1969 | Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien |
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Supplemental Indenture Date |
Parties | Providing For | ||
May 29, 1970 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 1, 1971 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 1, 1972 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
May 31, 1972 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 15, 1973 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
May 31, 1974 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 13, 1975 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
May 28, 1976 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 3, 1977 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
May 17, 1978 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
August 31, 1978 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 18, 1979 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
June 20, 1980 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 16, 1981 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 30, 1982 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien |
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Supplemental Indenture Date |
Parties | Providing For | ||
April 15, 1983 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 13, 1984 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 15, 1985 |
Company to Continental Illinois National Bank and Trust Company of Chicago and Donald W. Alfvin, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 15, 1986 |
Company to Continental Illinois National Bank and Trust Company of Chicago and M.J. Kruger, as Trustee and Co-Trustee | Confirmation of mortgage lien | ||
April 15, 1993 |
Company to Continental Bank, National Association and M.J. Kruger, as Trustee and Co-Trustee | Issuance of First Mortgage 7-5/8% Bonds, Series 92 | ||
June 15, 1993 |
Company to Continental Bank, National Association and M.J. Kruger, as Trustee and Co-Trustee | Issuance of First Mortgage 7% Bonds, Series 93 and First Mortgage 7-1/2% Bonds, Series 94 | ||
January 15, 1994 |
Company to Continental Bank, National Association and M.J. Kruger, as Trustee and Co-Trustee | Issuance of First Mortgage Bonds, Pollution Control Series 1994A, 1994B and 1994C | ||
March 1, 2002 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of unregistered First Mortgage 6.15% Bonds, Series 98 | ||
June 1, 2002 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of additional unregistered First Mortgage 6.15% Bonds, Series 98 | ||
October 7, 2002 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of registered First Mortgage 6.15% Bonds, Series 98 in exchange for unregistered First Mortgage 6.15% Bonds, Series 98 | ||
January 13, 2003 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 3.700% Bonds, Series 99 and First Mortgage 5.875% Bonds, Series 100 | ||
March 14, 2003 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 4.70% Bonds, Series 101 | ||
February 22, 2006 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 5.90% Bonds, Series 103 | ||
August 1, 2006 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 5.95% Bonds, Series 104 |
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Supplemental Indenture Date |
Parties | Providing For | ||
September 15, 2006 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of additional First Mortgage 5.95% Bonds, Series 104 | ||
December 1, 2006 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 5.40% Bonds, Series 105 | ||
March 1, 2007 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of additional First Mortgage 5.90% Bonds, Series 103 | ||
August 30, 2007 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 6.15% Bonds, Series 106 | ||
December 20, 2007 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Issuance of First Mortgage 6.45% Bonds, Series 107 | ||
March 10, 2008 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Amendment of Section 15.06 of the Mortgage and issuance of First Mortgage 5.80% Bonds, Series 108 | ||
April 23, 2008 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Amendment of Section 15.06 of the Mortgage and issuance of First Mortgage Bonds, Pollution Control Series 2008D and Series 2008F | ||
June 12, 2008 |
Company to BNY Midwest Trust Company and D.G. Donovan, as Trustee and Co-Trustee | Amendment of Section 15.06 of the Mortgage and issuance of First Mortgage Bonds, Pollution Control Series 2008E | ||
July 12, 2010 |
Company to BNY Mellon Trust Company of Illinois and D.G. Donovan, as Trustee and Co-Trustee | Amendment of Section 15.06 of the Mortgage and issuance of First Mortgage 4.00% Bonds, Series 109 | ||
January 4, 2011 |
Company to BNY Mellon Trust Company of Illinois and D.G. Donovan, as Trustee and Co-Trustee | Amendment of Section 15.06 of the Mortgage and issuance of First Mortgage 1.625% Bonds, Series 110 |
WHEREAS, the respective designations, maturity dates and stated principal amounts of the bonds of each series presently outstanding under, and secured by, the Mortgage and the several supplemental indentures above referred to, are as follows:
Designation | Maturity Date | Principal Amount | ||||
First Mortgage 7-5/8% Bonds, Series 92 |
April 15, 2013 | $ | 125,000,000 | |||
First Mortgage 7-1/2% Bonds, Series 94 |
July 1, 2013 | 127,000,000 | ||||
First Mortgage 5.85% Bonds, Pollution Control Series 1994C |
January 15, 2014 | 17,000,000 | ||||
First Mortgage 6.15% Bonds, Series 98 |
March 15, 2012 | 450,000,000 |
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Designation | Maturity Date | Principal Amount | ||||
First Mortgage 5.875% Bonds, Series 100 |
February 1, 2033 | 253,600,000 | ||||
First Mortgage 4.70% Bonds, Series 101 |
April 15, 2015 | 260,000,000 | ||||
First Mortgage 5.90% Bonds, Series 103 |
March 15, 2036 | 625,000,000 | ||||
First Mortgage 5.95% Bonds, Series 104 |
August 15, 2016 | 415,000,000 | ||||
First Mortgage 5.40% Bonds, Series 105 |
December 15, 2011 | 345,000,000 | ||||
First Mortgage 6.15% Bonds, Series 106 |
September 15, 2017 | 425,000,000 | ||||
First Mortgage 6.45% Bonds, Series 107 |
January 15, 2038 | 450,000,000 | ||||
First Mortgage 5.80% Bonds, Series 108 |
March 15, 2018 | 700,000,000 | ||||
First Mortgage Bonds, Pollution Control Series 2008D |
March 1, 2020 | 50,000,000 | ||||
First Mortgage Bonds, Pollution Control Series 2008F |
March 1, 2017 | 91,000,000 | ||||
First Mortgage Bonds, Pollution Control Series 2008E |
May 1, 2021 | 49,830,000 | ||||
First Mortgage 4.00% Bonds, Series 109 |
August 1, 2020 | 500,000,000 | ||||
First Mortgage 1.625% Bonds, Series 110 |
January 15, 2014 | 600,000,000 | ||||
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Total | $ | 5,483,430,000 | ||||
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WHEREAS, the Mortgage provides for the issuance from time to time thereunder, in series, of bonds of the Company for the purposes and subject to the limitations therein specified; and
WHEREAS, the Company desires, by this Supplemental Indenture, to create two additional series of bonds to be issuable under the Mortgage, such bonds to be designated First Mortgage 1.95% Bonds, Series 111 (hereinafter called the bonds of Series 111) and First Mortgage 3.40% Bonds, Series 112 (hereinafter called the bonds of Series 112) and the terms and provisions to be contained in the bonds of Series 111 and the bonds of Series 112, respectively, or to be otherwise applicable thereto to be as set forth in this Supplemental Indenture; and
WHEREAS, the bonds of Series 111 and the Trustees certificate to be endorsed thereon and the bonds of Series 112 and the Trustees certificate to be endorsed thereon shall be substantially in the form of the General Form of Registered Bond Without Coupons and the form of the General Form of Trustees Certificate set forth in Section 3.05 of the Supplemental Indenture dated August 1, 1944 to the Mortgage with such appropriate insertions, omissions and variations in order to express the designation, date, maturity date, annual interest rate, record dates for, and dates of, payment of interest, denominations, terms of redemption and redemption prices, and other terms and characteristics authorized or permitted by the Mortgage or not inconsistent therewith; and
WHEREAS, the Company is legally empowered and has been duly authorized by the necessary corporate action and by an order or orders of the Illinois Commerce Commission to make, execute and deliver this Supplemental Indenture, and to create, as an additional series of bonds of the Company, the bonds of Series 111 and the bonds of Series 112, and all acts and things whatsoever necessary to make this Supplemental Indenture, when executed and delivered by the Company and the Trustees, a valid, binding and legal instrument, and to make the bonds of Series 111 and the bonds of Series 112, when authenticated by the Trustee and issued as in the Mortgage and in this Supplemental Indenture provided, the valid, binding and legal obligations of the Company, entitled in all respects to the security of the Mortgage, as amended and supplemented, have been done and performed;
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NOW, THEREFORE, in consideration of the premises and of the sum of one dollar duly paid by the Trustees to the Company, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:
SECTION 1. Designation and Issuance of Bonds of Series 111 and Bonds of Series 112. The bonds of Series 111 shall, as hereinbefore recited, be designated as the Companys First Mortgage 1.95% Bonds, Series 111, and shall be issued in the original aggregate principal amount of $250,000,000. The bonds of Series 112 shall, as hereinbefore recited, be designated as the Companys First Mortgage 3.40% Bonds, Series 112, and shall be issued in the original aggregate principal amount of $350,000,000. Subject to the provisions of the Mortgage, additional bonds of Series 111 and the bonds of Series 112 may be issued without limitation as to the aggregate principal amount thereof.
SECTION 2. Form, Date, Maturity Date, Interest Rate and Interest Payment Dates of Bonds of Series 111 and Bonds of Series 112. (a) The definitive bonds of Series 111 and the definitive bonds of Series 112 shall be in engraved, lithographed, printed or typewritten form and shall be registered bonds without coupons; and such bonds and the Trustees certificate to be endorsed thereon shall be substantially in the forms hereinbefore recited, respectively. The bonds of Series 111 and the bonds of Series 112 shall be dated as provided in Section 3.01 of the Mortgage, as amended by Supplemental Indenture dated April 1, 1967.
(b) The bonds of Series 111 shall mature on September 1, 2016. The bonds of Series 112 shall mature on September 1, 2021.
(c) The bonds of Series 111 shall bear interest at the rate of 1.95% per annum until the principal thereof shall be paid. The bonds of Series 112 shall bear interest at the rate of 3.40% per annum until the principal thereof shall be paid.
(d) Interest on the bonds of Series 111 and the bonds of Series 112 shall be payable semi-annually on the first day of March and the first day of September in each year, commencing March 1, 2012. February 15 and August 15 in each year are hereby established as record dates for the payment of interest payable on the next succeeding interest payment dates, respectively. The interest on each bond of Series 111 and each bond of Series 112 so payable on any interest payment date shall, subject to the exceptions provided in Section 3.01 of the Mortgage, as amended by said Supplemental Indenture dated April 1, 1967, be paid to the person in whose name such bond is registered at the close of business on February 15 or August 15, as the case may be, next preceding such interest payment date.
SECTION 3. Execution of Bonds of Series 111 and Bonds of Series 112. The bonds of Series 111 and the bonds of Series 112 shall be executed on behalf of the Company by its President or one of its Vice Presidents, manually or by facsimile signature, and shall have its corporate seal affixed thereto or a facsimile of such seal imprinted thereon, attested by its Secretary or one of its Assistant Secretaries, manually or by facsimile signature, all as may be provided by resolution of the Board of Directors of the Company. In case any officer or officers whose signature or signatures, manual or facsimile, shall appear upon any bond of Series 111 or any bond of Series 112 shall cease to be such officer or officers before such bond shall have been actually authenticated and delivered, such bond nevertheless may be issued, authenticated and delivered with the same force and effect as though the person or persons whose signature or signatures, manual or facsimile, appear thereon had not ceased to be such officer or officers of the Company.
SECTION 4. Medium and Places of Payment of Principal of and Interest on Bonds of Series 111 and Bonds of Series 112; Transferability and Exchangeability. Both the principal of and interest on the bonds of Series 111 and the bonds of Series 112 shall be payable in any coin or currency of the United
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States of America which at the time of payment is legal tender for the payment of public and private debts, and both such principal and interest shall be payable at the office or agency of the Company in the City of Chicago, State of Illinois, or, at the option of the registered owner, at the office or agency of the Company in the Borough of Manhattan, The City of New York, State of New York, and such bonds shall be transferable and exchangeable, in the manner provided in Sections 3.09 and 3.10 of the Mortgage, at said office or agency. No charge shall be made by the Company to the registered owner of any bond of Series 111 or any bond of Series 112 for the transfer of such bond or for the exchange thereof for bonds of other authorized denominations, except, in the case of transfer, a charge sufficient to reimburse the Company for any stamp or other tax or governmental charge required to be paid by the Company or the Trustee.
SECTION 5. Denominations and Numbering of Bonds of Series 111 and Bonds of Series 112. The bonds of Series 111 and bonds of Series 112 shall be issued in the denomination of $1,000 and in such multiples of $1,000 as shall from time to time hereafter be determined and authorized by the Board of Directors of the Company or by any officer or officers of the Company authorized to make such determination, the authorization of the denomination of any bond of Series 111 or any bond of Series 112 to be conclusively evidenced by the execution thereof on behalf of the Company. Bonds of Series 111 shall be numbered R-1 and consecutively upwards, and bonds of Series 112 shall be numbered R-1 and consecutively upwards.
SECTION 6. Temporary Bonds of Series 111 and Bonds of Series 112. Until definitive bonds of Series 111 or definitive bonds of Series 112 are ready for delivery, there may be authenticated and issued in lieu of any thereof and subject to all of the provisions, limitations and conditions set forth in Section 3.11 of the Mortgage, temporary registered bonds without coupons of Series 111 or temporary registered bonds without coupons of Series 112.
SECTION 7. Redemption of Bonds of Series 111 and Bonds of Series 112. (a) The bonds of Series 111 shall be redeemable, at the option of the Company, as a whole or in part, at any time prior to August 1, 2016 (one month prior to the maturity date of the bonds of Series 111) upon notice sent by the Company through the mail, postage prepaid, at least thirty (30) days and not more than forty-five (45) days prior to the date fixed for redemption, to the registered holder of each bond to be redeemed in whole or in part, addressed to such holder at his address appearing upon the registration books, at a redemption price equal to the greater of
(1) 100% of the principal amount of the bonds of Series 111 to be redeemed, plus accrued and unpaid interest up to but excluding the redemption date, or
(2) as determined by the Quotation Agent (as hereinafter defined), the sum of the present values of the remaining scheduled payments of principal and interest on the bonds of Series 111 to be redeemed (not including any portion of payments of interest accrued as of the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as hereinafter defined) plus fifteen (15) basis points, plus accrued and unpaid interest up to but excluding the redemption date.
The bonds of Series 111 shall be redeemable, at the option of the Company, as a whole or in part, at any time on or after August 1, 2016 upon notice sent by the Company through the mail, postage prepaid, at least thirty (30) days and not more than forty-five (45) days prior to the date fixed for redemption, to the registered holder of each bond to be redeemed in whole or in part, addressed to such holder at his address appearing upon the registration books, at a redemption price equal to 100% of the principal amount of the bonds of Series 111 to be redeemed, plus accrued and unpaid interest on those Bonds up to but excluding
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the redemption date. Unless the Company defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the bonds of Series 111 or portions of the bonds of Series 111 called for redemption.
(b) The bonds of Series 112 shall be redeemable, at the option of the Company, as a whole or in part, at any time prior to June 1, 2021 (three months prior to the maturity date of the bonds of Series 112) upon notice sent by the Company through the mail, postage prepaid, at least thirty (30) days and not more than forty-five (45) days prior to the date fixed for redemption, to the registered holder of each bond to be redeemed in whole or in part, addressed to such holder at his address appearing upon the registration books, at a redemption price equal to the greater of
(1) 100% of the principal amount of the bonds of Series 112 to be redeemed, plus accrued and unpaid interest up to but excluding the redemption date, or
(2) as determined by the Quotation Agent (as hereinafter defined), the sum of the present values of the remaining scheduled payments of principal and interest on the bonds of Series 112 to be redeemed (not including any portion of payments of interest accrued as of the redemption date) discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as hereinafter defined) plus twenty (20) basis points, plus accrued and unpaid interest up to but excluding the redemption date.
The bonds of Series 112 shall be redeemable, at the option of the Company, as a whole or in part, at any time on or after June 1, 2021 upon notice sent by the Company through the mail, postage prepaid, at least thirty (30) days and not more than forty-five (45) days prior to the date fixed for redemption, to the registered holder of each bond to be redeemed in whole or in part, addressed to such holder at his address appearing upon the registration books, at a redemption price equal to 100% of the principal amount of the bonds of Series 112 to be redeemed, plus accrued and unpaid interest on those Bonds up to but excluding the redemption date. Unless the Company defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the bonds of Series 112 or portions of the bonds of Series 112 called for redemption.
(c) For purposes of the foregoing Sections 7(a) and 7(b), the following terms shall have the respective meanings set forth below:
Adjusted Treasury Rate means, with respect to any redemption date, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for the redemption date.
Business Day means any day that is not a day on which banking institutions in New York City are authorized or required by law or regulation to close.
Comparable Treasury Issue means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the bonds of Series 111 or the bonds of Series 112 to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the bonds of Series 111 or the bonds of Series 112, as applicable.
Comparable Treasury Price means, with respect to any redemption date:
(i) the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of the Reference Treasury Dealer Quotations; or
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(ii) if the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so received.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Reference Treasury Dealer means (1) each of BNP Paribas Securities Corp., Wells Fargo Securities, LLC, and a designee of U.S. Bancorp Investments, Inc., or any of their affiliates, and their respective successors, unless any of them ceases to be a primary U.S. Government securities dealer in the United States of America (Primary Treasury Dealer), in which case the Company shall substitute another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding that redemption date.
(d) In case the Company shall desire to exercise such right to redeem and pay off all or any part of such bonds of Series 111 or bonds of Series 112 as hereinbefore provided, it shall comply with all the terms and provisions of Article V of the Mortgage applicable thereto, and such redemption shall be made under and subject to the terms and provisions of Article V and in the manner and with the effect therein provided, but at the time or times and upon mailing of notice, all as hereinbefore set forth in this Section 7. No publication of notice of any redemption of any bonds of Series 111 or bonds of Series 112 shall be required under Section 5.03(a) of the Mortgage.
SECTION 8. Book-Entry Only System. It is intended that the bonds of Series 111 and the bonds of Series 112 be registered so as to participate in the securities depository system (the DTC System) with The Depository Trust Company (DTC), as set forth herein. The bonds of Series 111 and the bonds of Series 112 shall be initially issued in the form of a fully registered bond or bonds in the name of Cede & Co., or any successor thereto, as nominee for DTC. The Company and the Trustees are authorized to execute and deliver such letters to or agreements with DTC as shall be necessary to effectuate the DTC System, including the Letter of Representations from the Company and the Trustees to DTC relating to the bonds of Series 111 and the bonds of Series 112 (the Representation Letter). In the event of any conflict between the terms of the Representation Letter and the Mortgage, the terms of the Mortgage shall control. DTC may exercise the rights of a bondholder only in accordance with the terms hereof applicable to the exercise of such rights.
With respect to bonds of Series 111 and the bonds of Series 112 registered in the name of DTC or its nominee, the Company and the Trustees shall have no responsibility or obligation to any broker-dealer, bank or other financial institution for which DTC holds such bonds from time to time as securities depository (each such broker-dealer, bank or other financial institution being referred to herein as a Depository Participant) or to any person on behalf of whom such a Depository Participant holds an interest in such bonds (each such person being herein referred to as an Indirect Participant). Without limiting the immediately preceding sentence, the Company and the Trustees shall have no responsibility or obligation with respect to:
(i) the accuracy of the records of DTC, its nominee or any Depository Participant with respect to any ownership interest in the bonds of Series 111 or the bonds of Series 112,
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(ii) the delivery to any Depository Participant or any Indirect Participant or any other person, other than a registered owner of a bond of Series 111 or a bond of Series 112, of any notice with respect to the bonds of Series 111 or the bonds of Series 112, including any notice of redemption,
(iii) the payment to any Depository Participant or Indirect Participant or any other person, other than a registered owner of a bond of Series 111 or a bond of Series 112, of any amount with respect to principal of, redemption premium, if any, on, or interest on, the bonds of Series 111 or the bonds of Series 112, or
(iv) any consent given by DTC as registered owner.
So long as certificates for the bonds of Series 111 or the bonds of Series 112 are not issued as hereinafter provided, the Company and the Trustees may treat DTC or any successor securities depository as, and deem DTC or any successor securities depository to be, the absolute owner of such bonds for all purposes whatsoever, including, without limitation, (1) the payment of principal and interest on such bonds, (2) giving notice of matters (including redemption) with respect to such bonds and (3) registering transfers with respect to such bonds. While a bond of Series 111 or a bond of Series 112 is in the DTC System, no person other than DTC or its nominee shall receive a certificate with respect to such bond.
In the event that:
(a) DTC notifies the Company that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by the Company within 90 days,
(b) the Company determines that the beneficial owners of the bonds of Series 111 should be able to obtain certificated bonds and so notifies the Trustees in writing or
(c) there shall have occurred and be continuing a completed default or any event which after notice or lapse of time or both would be a completed default with respect to the bonds of Series 111,
the bonds of Series 111 shall no longer be restricted to being registered in the name of DTC or its nominee. In the case of clause (a) of the preceding sentence, the Company may determine that the bonds of Series 111 shall be registered in the name of and deposited with a successor depository operating a securities depository system, as may be acceptable to the Company and the Trustees, or such depositorys agent or designee, and if the Company does not appoint a successor securities depository system within 90 days, then the bonds may be registered in whatever name or names registered owners of bonds transferring or exchanging such bonds shall designate, in accordance with the provisions hereof.
Notwithstanding any other provision of the Mortgage to the contrary, so long as any bond of Series 111 is registered in the name of DTC or its nominee, all payments with respect to principal of and interest on such bond and all notices with respect to such bond shall be made and given, respectively, in the manner provided in the Representation Letter.
In the event that:
(a) DTC notifies the Company that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by the Company within 90 days,
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(b) the Company determines that the beneficial owners of the bonds of Series 112 should be able to obtain certificated bonds and so notifies the Trustees in writing or
(c) there shall have occurred and be continuing a completed default or any event which after notice or lapse of time or both would be a completed default with respect to the bonds of Series 112,
the bonds of Series 112 shall no longer be restricted to being registered in the name of DTC or its nominee. In the case of clause (a) of the preceding sentence, the Company may determine that the bonds of Series 112 shall be registered in the name of and deposited with a successor depository operating a securities depository system, as may be acceptable to the Company and the Trustees, or such depositorys agent or designee, and if the Company does not appoint a successor securities depository system within 90 days, then the bonds may be registered in whatever name or names registered owners of bonds transferring or exchanging such bonds shall designate, in accordance with the provisions hereof.
Notwithstanding any other provision of the Mortgage to the contrary, so long as any bond of Series 112 is registered in the name of DTC or its nominee, all payments with respect to principal of and interest on such bond and all notices with respect to such bond shall be made and given, respectively, in the manner provided in the Representation Letter.
SECTION 9. Legends. So long as the bonds of Series 111 are held by DTC, such bonds of Series 111 shall, and so long as the bonds of Series 112 are held by DTC, such bonds of Series 112 shall, in each case, bear the following legend:
Unless this bond is presented by an authorized representative of the Depository Trust Company, a New York corporation (DTC), to the Company or its agent for registration of transfer, exchange or payment, and any bond issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by a person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
SECTION 10. Confirmation of Lien. The Company, for the equal and proportionate benefit and security of the holders of all bonds at any time issued under the Mortgage, hereby confirms the lien of the Mortgage upon, and hereby grants, bargains, sells, transfers, assigns, pledges, mortgages, warrants and conveys unto the Trustees, all property of the Company and all property hereafter acquired by the Company, other than (in each case) property which, by virtue of any of the provisions of the Mortgage, is excluded from such lien, and hereby confirms the title of the Trustees (as set forth in the Mortgage) in and to all such property. Without in any way limiting or restricting the generality of the foregoing, there is specifically included within the confirmation of lien and title hereinabove expressed the property of the Company legally described on Exhibit A attached hereto and made a part hereof.
SECTION 11. Amendment of Provision of Mortgage. (a) Section 15.06 of the Mortgage shall be amended and restated to read in its entirety as follows:
SECTION 15.06. The Trustee and any successor to the Trustee may resign and be discharged from the trusts created by this Mortgage by giving notice thereof in writing to the
11
Company, specifying the date when such resignation shall take effect, and by giving notice thereof to the bondholders in the manner and to the extent provided under Section 15.10(c), and by publishing such notice at least once a week for three successive calendar weeks (the first such publication to be not less than thirty days nor more than sixty days prior to the effective date of such resignation) in one authorized newspaper in the City of Chicago, State of Illinois, and in one authorized newspaper in the Borough of Manhattan, The City of New York, State of New York. Subject to the provisions of Sections 15.04 and 15.05, such resignation shall take effect on the date specified in such notice unless previously a successor Trustee shall have been appointed as hereinafter provided, in which event such resignation shall take effect upon the appointment of such successor Trustee. The Co-Trustee and any successor to the Co-Trustee may resign at any time and be discharged from the trusts hereby created by giving the Trustee and the Company notice in writing of such resignation, specifying a date when such resignation shall take effect, which shall be at least thirty days after the giving of such notice. Such resignation shall, subject to the provisions of Sections 15.04 and 15.05, take effect on the date specified in such notice unless previously a successor trustee shall have been appointed as hereinafter provided, in which event such resignation shall take effect immediately upon the appointment of such a successor trustee.
Either of the Trustees or any successor trustee may be removed at any time by the holders of a majority in principal amount of the bonds issued hereunder and at the time outstanding, upon payment to the trustee so removed of all moneys then due to it or him hereunder, by an instrument or concurrent instruments in writing, signed in duplicate by such holders. One copy shall be filed with the Company and the other with the trustee so removed.
The Co-Trustee and any successor to the Co-Trustee may be removed at any time by an instrument in writing signed in duplicate by the Trustee, one copy of which shall be filed with the Company and the other delivered to the Co-Trustee so removed.
In case at any time either of the Trustees or any successor trustee shall resign, die, be dissolved or be removed or otherwise shall become disqualified to act or incapable of acting, or in case control of the Trustee or of any successor trustee, or of its officers shall be taken over by any public officer or officers, a successor trustee may be appointed by the holders of a majority in principal amount of the bonds issued hereunder and at the time outstanding by an instrument or concurrent instruments in writing signed in duplicate by such holders, and filed, one copy with the retiring trustee and the other with the successor trustee, notification thereof being given to the Company by such successor trustee; but until a successor trustee shall be so appointed by the bondholders as herein authorized, the Company, by an instrument in writing, executed by order of the Board of Directors, shall in any such case appoint a successor to the Trustee and the Trustee shall, by an instrument in writing in any such case, appoint a successor to the Co-Trustee. Every such successor to the Trustee so appointed by the bondholders, by a court of competent jurisdiction or by the Company shall be a bank or trust company in good standing organized and doing business under the laws of the United States or of any State, having an office in the United States of America, and (a) which shall be a corporation having a combined capital and surplus of not less than $5,000,000, (b) which shall be authorized under the laws of the jurisdiction of incorporation to exercise corporate trust powers, and (c) which shall be subject to supervision or examination by a Federal or State authority. If such successor Trustee publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, the combined capital and surplus of such successor Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Every such successor trustee appointed by the bondholders or by the Trustee in succession to the Co-Trustee shall always be an individual, a citizen of the United States of America, unless otherwise required by law.
12
Anything hereinabove to the contrary notwithstanding, in case at any time the Co-Trustee, or any successor thereto, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of the Trustees hereunder shall, to the extent permitted by law, vest in and be exercised by the Trustee, without the appointment of a successor Co-Trustee.
If in a proper case no appointment of a successor to the Trustee or of a successor to the Co-Trustee shall be made pursuant to the foregoing provisions of this Article XV within six months after a vacancy shall have occurred in the office of trustee, the holder of any bond or the retiring Trustee or Co-Trustee may apply to any court, State or Federal having jurisdiction to appoint a successor trustee, and such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor to the Trustee or to the Co-Trustee, as the case may be.
(b) The holders of the bonds of Series 111 and the bonds of Series 112 shall be deemed to have approved the foregoing amendment; however, the foregoing amendment shall not become effective until such time as it shall have received the requisite approvals under the provisions of the Mortgage.
SECTION 12. Miscellaneous. The terms and conditions of this Supplemental Indenture shall be deemed to be a part of the terms and conditions of the Mortgage for any and all purposes. The Mortgage, as supplemented by said indentures supplemental thereto dated subsequent to August 1, 1944 and referred to in the recitals of this Supplemental Indenture, and as further supplemented by this Supplemental Indenture, is in all respects hereby ratified and confirmed.
This Supplemental Indenture shall bind and, subject to the provisions of Article XIV of the Mortgage, inure to the benefit of the respective successors and assigns of the parties hereto.
Although this Supplemental Indenture is dated as of August 22, 2011, it shall be effective only from and after the actual time of its execution and delivery by the Company and the Trustees on the date indicated by their respective acknowledgments hereto annexed.
Notwithstanding anything to the contrary contained in the Mortgage, the maximum amount of indebtedness secured by the Mortgage shall not exceed 200% of the aggregate stated principal amount of the bonds of each series presently outstanding under, and secured by, the Mortgage, as set forth in the Recitals to this Supplemental Indenture, except to the extent such maximum amount may be adjusted by a subsequent recorded supplemental indenture (which adjustment, and the corresponding supplemental indenture, shall not require the consent or approval of the holders of any bonds then outstanding under the Mortgage, including the holders of the bonds of Series 111 and the bonds of Series 112).
This Supplemental Indenture may be simultaneously executed in any number of counterparts, and all such counterparts executed and delivered, each as an original, shall constitute but one and the same instrument.
13
IN WITNESS WHEREOF, Commonwealth Edison Company has caused this Supplemental Indenture to be executed in its name by its Senior Vice President, Chief Financial Officer and Treasurer, and attested by its Secretary, and BNY Mellon Trust Company of Illinois, as Trustee under the Mortgage, has caused this Supplemental Indenture to be executed in its name by one of its Vice Presidents, and attested by one of its Vice Presidents, and D.G. Donovan, as Co-Trustee under the Mortgage, has hereunto affixed his signature, all as of the day and year first above written.
COMMONWEALTH EDISON COMPANY | ||
By: | /s/ Joseph R. Trpik, Jr. | |
Joseph R. Trpik, Jr. | ||
Senior Vice President, | ||
Chief Financial Officer and Treasurer |
ATTEST:
/s/ Donna Massey
Donna Massey
Secretary
BNY MELLON TRUST COMPANY OF ILLINOIS | ||
By: | /s/ L. Garcia | |
L. Garcia | ||
As Agent |
ATTEST:
/s/ Lawrence M. Kusch
Lawrence M. Kusch
Vice President
/s/ D.G. Donovan |
D.G. Donovan |
14
STATE OF ILLINOIS | ) | |
) | ||
COUNTY OF COOK | ) |
I, MARY E. NOLAN, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Joseph R. Trpik, Jr., Senior Vice President, Chief Financial Officer and Treasurer of Commonwealth Edison Company, an Illinois corporation, one of the parties described in and which executed the foregoing instrument, and Donna Massey, Secretary of said corporation, who are both personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Senior Vice President, Chief Financial Officer and Treasurer and Secretary, respectively, and who are both personally known to me to be Senior Vice President, Chief Financial Officer and Treasurer and Secretary, respectively, of said corporation, appeared before me this day in person and severally acknowledged that they signed, executed and delivered said instrument as their free and voluntary act as such Senior Vice President, Chief Financial Officer and Treasurer and Secretary, respectively, of said corporation, and as the free and voluntary act of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 26th day of August, A.D. 2011.
/s/ Mary E. Nolan |
Mary E. Nolan |
Notary Public |
(NOTARIAL SEAL)
My Commission expires April 23, 2013.
15
STATE OF ILLINOIS | ) | |
) | ||
COUNTY OF COOK | ) |
I, T. MOSTERD, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that L. GARCIA, as Agent for BNY Mellon Trust Company of Illinois, an Illinois trust company, one of the parties described in and which executed the foregoing instrument, and LAWRENCE M. KUSCH, Vice President of said trust company, who are both personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Agent and Vice President, respectively, and who are both personally known to me to be an Agent and Vice President, respectively, of said trust company, appeared before me this day in person and severally acknowledged that they signed, executed and delivered said instrument as their free and voluntary act as such Agent and Vice President, respectively, of said trust company, and as the free and voluntary act of said trust company, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 25th day of August, A.D. 2011.
/s/ T. Mosterd |
T. Mosterd |
Notary Public |
(NOTARIAL SEAL)
My Commission expires January 22, 2013.
16
STATE OF ILLINOIS | ) | |
) | ||
COUNTY OF COOK | ) |
I, T. MOSTERD, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that D.G. DONOVAN, one of the parties described in and which executed the foregoing instrument, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, executed and delivered said instrument as his free and voluntary act for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 25th day of August, A.D. 2011.
/s/ T. Mosterd |
T. Mosterd |
Notary Public |
(NOTARIAL SEAL)
My Commission expires January 22, 2013.
17
EXHIBIT A
LEGAL DESCRIPTIONS
[omitted]
Exhibit 5.1
SIDLEY AUSTIN LLP ONE SOUTH DEARBORN STREET CHICAGO, IL 60603 (312) 853 7000 (312) 853 7036 FAX |
BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON LOS ANGELES |
NEW YORK PALO ALTO SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C. | ||||
FOUNDED 1866 |
September 7, 2011
Commonwealth Edison Company
440 South LaSalle Street
Suite 3300
Chicago, Illinois 60605-1028
Re: | $250,000,000 aggregate principal amount of First Mortgage 1.95% Bonds, Series 111, Due September 1, 2016, and $350,000,000 aggregate principal amount of First Mortgage 3.40% Bonds, Series 112, Due September 1, 2021 |
Ladies and Gentlemen:
We have acted as counsel to Commonwealth Edison Company, an Illinois corporation (the Company), in connection with the issuance and sale by the Company of (i) $250,000,000 aggregate principal amount of First Mortgage 1.95% Bonds, Series 111, due September 1, 2016 (the Series 111 Bonds), and (ii) $350,000,000 aggregate principal amount of First Mortgage 3.40% Bonds, Series 112, due September 1, 2021 (the Series 112 Bonds and, together with the Series 111 Bonds, the Bonds), covered by the Registration Statement on Form S-3, No. 333-158920 (the Registration Statement), filed by the Company with the Securities and Exchange Commission (SEC) on April 30, 2009, under the Securities Act of 1933, as amended.
The Bonds were issued under the Companys Mortgage (the Mortgage), dated July 1, 1923, as amended and supplemented by the Supplemental Indenture dated August 1, 1944 and subsequent supplemental indentures, including the Supplemental Indenture dated as of August 22, 2011, to BNY Mellon Trust Company of Illinois, as trustee, and D.G. Donovan, as co-trustee (collectively, the Bond Trustees), which Mortgage is governed by Illinois law, and sold by the Company pursuant to the Underwriting Agreement dated August 30, 2011 between the Company and BNP Paribas Securities Corp., U.S. Bancorp Investments, Inc. and Wells Fargo Securities, LLC, as representatives of the several underwriters named therein.
For the purpose of expressing the opinions in this letter, we have examined and relied upon a copy of the Registration Statement and the exhibits filed therewith. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates of officers of the Company and the Bond Trustees and statements of government officials and other instruments, and have examined such questions of law and have satisfied ourselves as to such matters of fact, as we have considered relevant and necessary as a basis for the opinions expressed in this letter. We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals and the conformity with the original documents of all documents submitted to us as
Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships
Commonwealth Edison Company
September 7, 2011
Page 2
certified or photostatic copies or by facsimile or other means of electronic transmission or which we obtained from the Electronic Data Gathering, Analysis and Retrieval System (EDGAR) of the SEC or other internet sites through which documents filed with the SEC can be obtained. With respect to any instrument or agreement executed or to be executed by any party other than the Company, we have assumed, to the extent relevant to the opinions set forth herein, that (i) such other party (if not a natural person) was duly organized or formed, as the case may be, and was at all relevant times and is validly existing and in good standing under the laws of its jurisdiction of organization or formation, as the case may be, and (ii) such other party had at all relevant times and has full right, power and authority to execute, deliver and perform its obligations under each instrument or agreement to which it is a party and each such instrument or agreement has been duly authorized (if applicable), executed and delivered by, and was at all relevant times and is a valid, binding and enforceable agreement or obligation, as the case may be, of, such other party.
Based on the foregoing, and subject to the limitations hereinafter set forth, we are of the opinion that:
1. | The Company is duly incorporated and validly existing under the laws of the State of Illinois. |
2. | The Bonds are legally issued and binding obligations of the Company enforceable against the Company in accordance with their terms. |
Our opinion in paragraph 2 with respect to the enforceability of the Bonds is subject to:
(i) | bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and similar laws relating to or affecting the rights and remedies of creditors generally and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (whether enforceability is considered in a proceeding at law or in equity); |
(ii) | the effect of provisions of the Bankruptcy Reform Act of 1978, which may affect the validity of the lien of the Mortgage with respect to property acquired or proceeds realized by the Company after the commencement of bankruptcy proceedings with respect to the Company; and |
(iii) | the qualification that certain of the remedial, waiver and other provisions of the Mortgage may be unenforceable in whole or in part under the laws of the State of Illinois, but such unenforceability will not render the Mortgage invalid as a whole or make the Mortgage legally inadequate for the practical realization of the principal benefits or security intended to be provided thereby. |
This letter is limited to the federal laws of the United States of America and the laws of the State of Illinois.
Commonwealth Edison Company
September 7, 2011
Page 3
We do not find it necessary for the purposes of this letter to cover, and accordingly we express no opinion as to, the application of the securities or blue sky laws of the various states or the District of Columbia to the Bonds.
We hereby consent to the filing of this letter as Exhibit 5-1-3 to the Registration Statement and the references to our firm included in or made a part of the Registration Statement.
Very truly yours,
/s/ Sidley Austin LLP
(Q3;`23Y<6N9AUD-LC]8W5 MS,0EKSAF>B4G2QA=..14!"A8-PDRCVML=(IK*+@WFLKY*;*2\CN'C*[27,02 MHN02(#4FP"7_`%M_WJ']B38%A.B3U;9ZUN9PR-B_ M)-BD48NO1.6!NSZJR-/L+UVL1I&-[I&1C+N"X@5,7Z!DU#;UB"`/KM9!@^9I MR#)\S>,%4@72?-7*+AFH@).8"R;E(YT3I"0>+B`V[=V[`BS\S_K#9Z\K_@+H M\Z(D3YZS;+9786C+A*"Y)/0U.FH]-6-KU0F7<89=!M)Q`/5Y.644'E1S0A., MP*'$H`WQH8TW0^BG1GISTSI/V0I86Q35ZG-R@.1+'/K6#7Q&YR;19WRS$82E MOD'J[*K%;KK.S]B12F$5!["[QV#336?L6[-,Q M5SG*F8#D[0$![0[=@S;/ET)B)7^8'9L#R_4!ZDNF+I\Z?[KF/+F3JFA-L8>3;8ZQXQFXR0N M^2;V+1<(&I5:N(.CR$B\>/REYQ@)RV[ E=H63 >FW+%0GXVRR=\D]7,7#-8>S]R9#6%EJ+2E) ML#+#`V#O:0R"Q6QQ5(AP%5W,J;5A5W!8P'C<9` MR#;'M\!RN#,%.\"BW%VEQFX=Q>:3?]\&\"G_`"[DQ#M.C1H71
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