Commonwealth Edison
Company
First Mortgage 5.95% Bonds,
Series 104, due 2016
To the
Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
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
September 15, 2006 (the “ Supplement ”)
from the Company to BNY Midwest Trust Company, as trustee (the
“ Trustee ”), and D.G. Donovan, as co-trustee
(the “ Co-Trustee ”). As used herein, the term
“ Mortgage ” refers to the Company’s
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 ”),
additional Mortgage Bonds, Series 104 in the aggregate
principal amount and with the terms specified in Part A of
Schedule I hereto (such series referred to herein as the
“ Purchased Bonds ”).
2.
Representations and Warranties of the Company . 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. 333-133966) 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).
2
(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 the Registration Statement and the
Prospectus, and any such free writing prospectus, when taken
together with the information contained in 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 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
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 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 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
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.
3
(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 Prospectus; and the execution and
delivery of this Agreement, the incurrence of the obligations
herein set forth and the consummation of the transactions herein
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 Prospectus which is not adequately disclosed in
the 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 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).
4
(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.
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
amount of the Purchased Bonds set forth opposite each
Underwriter’s 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 Prospectus, Prospectus Supplement
(as hereinafter defined) relating to the Purchased Bonds and the
final
5
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 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, substantially in the form of
Annex I hereto and approved by the Representatives, and 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
6
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. “ 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 before the Applicable Time of Sale.
(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 Company’s 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 Bond
|
