Exhibit 1.1
Execution Version
EXELON GENERATION COMPANY,
LLC
$600,000,000 5.20% Senior Notes
Due 2019
$900,000,000 6.25% Senior Notes
Due 2039
UNDERWRITING
AGREEMENT
New York, New York
September 16, 2009
To the Representatives named
in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Exelon Generation Company, LLC, a
limited liability company organized under the laws of the
Commonwealth of Pennsylvania (the “Company”), proposes
to sell to the several underwriters named in Schedule II hereto
(the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$600,000,000 principal amount of its 5.20% Senior Notes Due 2019
(the “2019 Senior Notes”) and $900,000,000 principal
amount of its 6.25% Senior Notes Due 2039 (the “2039 Senior
Notes” and together with the 2019 Senior Notes, the
“Securities”). The Securities are to be issued under an
indenture (the “Indenture”), dated as of
September 28, 2007, between the Company and U.S. Bank National
Association, as trustee (the “Trustee”). To the extent
there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement
or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 19 hereof.
1. Representations and
Warranties . 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, each Underwriter as set forth below
in this Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (the file number of
which is set forth in Schedule I
hereto) on Form S-3, including
a related base prospectus, for registration under the Act of the
offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Execution Time,
became effective upon filing under Rule 462(e) under the Act. The
Company may have filed one or more amendments thereto, including a
Preliminary Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission a final term
sheet as contemplated by Section 5(b) hereof and a final
prospectus supplement relating to the Securities in accordance with
Rules 415 and 424(b). As filed, such final prospectus supplement
shall contain all 430B Information, together with all other such
required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) (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),
(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 and (iv) at the Execution Time (with
such date being used as the determination date for purposes of this
clause (iv)), the Company was or is (as the case may be) 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).
(c) On the Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date
(as defined herein), the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture
Act and the respective rules thereunder; on the Effective Date and
at the Execution Time and as of the “new effective
date” with respect to the Securities pursuant to, and within
the meaning of, Rule 430B(f)(2) under the Act, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement
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which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained
in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the
Final Prospectus (or any supplement thereto), it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(d) The Disclosure Package did not,
as of the time and date designated as the “Applicable Time of
Sale” in 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. The preceding sentence does not
apply to statements in or omissions from the Disclosure Package
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(e) The Company has not made and
will not make (other than the final term sheet prepared and filed
pursuant to Section 5(b) hereof) any offer relating to the
Securities that would constitute a “free writing
prospectus” (as defined in Rule 405 under the Act), without
the prior written 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 (including the final term sheet prepared and filed
pursuant to Section 5(b) hereof) will not, as of its issue
date and through the completion of the public offer and sale of the
Securities, include any information that is inconsistent with the
information contained in the Registration Statement, the Disclosure
Package and the Final Prospectus, and any such free writing
prospectus, when taken together with the information contained in
the Registration Statement, the Disclosure Package and the Final
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 purpose of clarity, nothing in this
Section 1(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) At the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer of the Securities
(within the meaning of Rule 164(h)(2)) of the Securities Act and
(y) as of the Execution Time (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.
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(g) 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 Final Prospectus, will not be required to register
as an “investment company” under the Investment Company
Act.
(h) The Company has not taken,
directly or indirectly, any action designed to cause or which has
constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(i) The Company has been duly
organized and is validly subsisting as a limited liability company
in good standing under the laws of the Commonwealth of Pennsylvania
with full power and authority under its operating agreement to own
or lease, as the case may be, and to operate its properties and
conduct its business as described in the Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign
entity and is in good standing under the laws of each jurisdiction
which requires such qualification.
(j) Exelon Ventures Company, LLC, a
limited liability company organized under the laws of the State of
Delaware (“Ventures”), is the only member of the
Company and owns all of the Company’s outstanding limited
liability company interests free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim. Ventures is
not obligated personally for any debt, obligation or liability of
the Company solely by reason of being a member of the Company or
owning its limited liability interests.
(k) Exelon Corporation, a
corporation subsisting under the laws of the Commonwealth of
Pennsylvania (“Exelon”), is the only member of Ventures
and owns all of Venture’s outstanding limited liability
company interests, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim. Exelon is not
obligated personally for any debt, obligation or liability of
Ventures solely by reason of being a member of Ventures or owning
its limited liability company interests.
(l) The Company does not have any
significant subsidiaries (as such term is defined in Rule 1.02 of
Regulation S-X promulgated under the Act).
(m) The statements in the Disclosure
Package and the Final Prospectus under the heading
“Description of Senior Notes” fairly summarize the
matters therein described.
(n) This Agreement has been duly
authorized, executed and delivered by the Company; the Indenture
has been duly authorized and, assuming due authorization, execution
and delivery of the Indenture by the Trustee, when executed and
delivered by the Company, will constitute a legal, valid, binding
instrument enforceable against the Company in accordance with its
terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity); the Securities have
been duly authorized, and, when executed and authenticated
in
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accordance with the provisions of
the Indenture 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 Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, insolvency,
moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of
equity).
(o) No consent, approval,
authorization, filing with or order of any court or state or
federal governmental agency or body, including the Commission and
any applicable state utility commission or other regulatory
authority, is required in connection with the transactions
contemplated herein or in the Indenture, except (i) for the
authorization of the Federal Energy Regulatory Commission
(“FERC”), which authorization has been received and is
in full force and effect and (ii) such as will be obtained
under the Act and the Trust Indenture Act, and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated by this Agreement, the
Disclosure Package and the Final Prospectus.
(p) Neither the execution and
delivery of this Agreement, nor the consummation of any of the
transactions herein contemplated, nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to
(i) the operating agreement of the Company or the
organizational documents of any of its subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of
its subsidiaries is a party or bound or to which its or their
property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
(q) The Company and its subsidiaries
own or lease all such properties as are necessary for the conduct
of the Company’s operations as presently
conducted.
(r) The consolidated historical
financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in
the Disclosure Package and the Final Prospectus present fairly in
all material respects the financial condition, results of
operations and cash flows of the Company as of the date and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles.
(s) No action, suit or proceeding by
or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries or
its or their property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the
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performance of this Agreement or the
Indenture, or the consummation of any of the transactions
contemplated hereby or thereby; or (ii) could reasonably be
expected to have a material adverse effect on the financial
condition, business or properties of 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 and the Final
Prospectus (exclusive of any amendment or supplement
thereto).
(t) Neither the Company nor any
subsidiary is (i) in violation of its operating agreement or
its charter, bylaws or other organizational instrument or document;
(ii) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject; or (iii) materially in
violation of any law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries or any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such subsidiary or any of its properties, as
applicable.
(u) The Company and its subsidiaries
possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect
on 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 the Disclosure Package and the Final Prospectus (exclusive
of any amendment or supplement thereto).
(v) PricewaterhouseCoopers LLP is an
independent registered public accounting firm with respect to the
Company as required by the Act and the rules and regulations of the
Commission and the Public Company Accounting Oversight Board
thereunder.
(w) The Company maintains systems of
internal accounting controls sufficient to provide reasonable
assurance that transactions are executed in accordance with
management’s 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 management’s 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.
(x) 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 Company’s principal executive
officer and principal financial officer by others within those
entities, and such disclosure controls and procedures are
effective.
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Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the 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 on Schedule I hereto, the principal amount of
each of the 2019 Senior Notes and the 2039 Senior Notes set forth
opposite such Underwriter’s name in Schedule II
hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made on the
date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being
herein called the “Closing Date”). Delivery of the
Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall
otherwise instruct.
4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final
Prospectus, the Preliminary Prospectus and the final term sheet
contemplated by Section 5(b) hereof.
5. Agreements . The Company
agrees with the several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus or
any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. The Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (1) when the
Final Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (2) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective,
(3) of
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any request by the Commission or its
staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information, (4) 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 (5) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company shall prepare a
final term sheet, containing solely a description of each of the
2019 Senior Notes and the 2039 Senior Notes, substantially in the
form of Annex I 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) Each Underwriter, severally and
not jointly, represents and agrees that, without the prior consent
of the Company and the Representatives, it has not made and will
not make any offer relating to the Securities that would constitute
a “free writing prospectus” (as defined in Rule 405
under the Act), other than the final term sheet prepared and filed
pursuant to Section 5(b) hereof or any free writing prospectus
that is not required to be filed by the Company pursuant to Rule
433 (including a preliminary Bloomberg screen containing
substantially the same information, but in any event not more
information, than the final term sheet prepared and filed pursuant
to Section 5(b)).
(d) If, at any time when a
prospectus relating to the Securities 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 Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Representatives of such event,
(2) prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or
effect such compliance and (3) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
If, prior to the Closing Date, there occurs an event or development
as a result of which the Disclosure Package 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.
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(e) As soon as practicable, the
Company will make generally available to its security holders and
to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the
Act.
(f) The Company will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act
(including circumstances when such requirement may be satisfied
pursuant to Rule 172), as many copies of each Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing
or other production of all documents relating to the
offering.
(g) The Company will arrange, if
necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any
fee of FINRA in connection with its review of the offering;
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 to take any action that would subject it to service of process
in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so
subject.
(h) The Company will not, without
the prior written consent of the Representatives, offer, sell,
contract to sell, pledge, or otherwise dispose of, or enter into
any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash
settlement or otherwise) by the Company, directly or indirectly, or
announce the offering of, any long-term debt securities issued or
guaranteed by the Company or preferred stock (other than the
Securities), prior to the Closing Date.
(i) The Company will not take,
directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(j) The Company agrees to pay the
costs and expenses relating to the following matters: (i) the
preparation of the Indenture, the issuance of the Securities and
the fees of the Trustee (including counsel to the Trustee in
connection therewith); (ii) the preparation, printing or
reproduction and filing of the Registration Statement, each
Preliminary Prospectus and Final Prospectus, and each amendment or
supplement to either of them, and any Issuer Free Writing
Prospectus; (iii) the printing (or reproduction) and delivery
(including postage, air freight charges and charges for counting
and packaging) of such copies of the Preliminary Prospectus, the
Final Prospectus, and all amendments or supplements to either of
them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities;
(iv) the
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preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection
with the original issuance and sale of the Securities; (v) the
printing (or reproduction) and delivery of this Agreement, any blue
sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable
fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vii) the transportation and
other expenses incurred by or on behalf of Company representatives
in connection with presentations to prospective purchasers of the
Securities; (viii) the fees and expenses of the
Company’s accountants and counsel (including local and
special counsel); (ix) the fees and expenses of any rating
agencies rating the Securities and (x) all other costs and
expenses incident to the performance by the Company of its
obligations hereunder.
6. Conditions to the Obligations
of the Underwriters . The obligations of the Underwriters to
purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained
herein as of the Applicable Time of Sale, the Execution Time and
the Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the
pe
