Exhibit 1.1
Execution Version
PECO ENERGY COMPANY
First and Refunding Mortgage Bonds, 5.70% Series Due 2037
Underwriting Agreement
New York, New York
March 12, 2007
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
PECO Energy Company, a corporation 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,
$175,000,000 principal amount of the Companys First and Refunding Mortgage Bonds, 5.70% Series due
2037 (the Securities). The Securities are to be issued under the Companys First and Refunding
Mortgage, dated as of May 1, 1923 (the Mortgage), as amended and supplemented through the date
hereof, and as further amended by the Supplemental Indenture, dated as of March 12, 2007 (the
Supplement), between the Company and U.S. Bank National Association, as trustee (the Trustee).
The Mortgage, together with any and all amendments or supplements thereto, including the
Supplement, is referred to herein collectively as the Indenture. 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 18 hereof.
1.
Representations and Warranties.
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 a registration statement (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, has become effective. 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) 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, 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 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.
(c) 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
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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.
(d) 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(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) The Company has been duly organized and is validly subsisting as a corporation in
good standing under the laws of the Commonwealth of Pennsylvania with full power and
authority under its articles of incorporation and bylaws to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the 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
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such qualification, except where the failure to be so qualified would not reasonably be
expected to have a material adverse effect.
(i) Except as disclosed in the Companys Form 10-K for the fiscal year ended December
31, 2006, 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).
(j) The statements in the Disclosure Package and the Final Prospectus under the
headings Description of the Bonds and Description of the First and Refunding Mortgage
Bonds fairly summarize the matters therein described.
(k) 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 Supplement 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 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).
(l) The Pennsylvania Public Utility Commission has entered an appropriate order
authorizing the Company to issue and sell the Securities as contemplated herein; such order
is in full force and effect and no proceeding has been initiated upon appeal from or to
review the effectiveness of such order. No other consent, approval, authorization, filing
with or order of any court or state or federal governmental agency or body, including the
Commission and any applicable state regulatory authority, is required in connection with the
transactions contemplated herein or in the Indenture, except such as will be obtained under
the Act, the Trust Indenture Act and the Pennsylvania Public Utility Code, and such as may
be required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner contemplated by this
Agreement, the Disclosure Package and the Final Prospectus.
(m) 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 (other than the lien of the
Indenture) pursuant to, (i) the charter or bylaws of the Company; (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 is a party or
bound or to which its property is subject; or (iii) any statute, law, rule, regulation,
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judgment, order or decree applicable to the Company 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.
(n) The Company has good and sufficient title to all property described or referred to
in the Indenture and purported to be conveyed thereby, subject only to the lien of the
Indenture and excepted encumbrances as therein defined (except as to property released from
the lien of the Indenture in connection with the sale or other disposition thereof, and
certain other exceptions which are not material in the aggregate).
(o) 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.
(p) 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 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).
(q) PricewaterhouseCoopers LLP, are independent registered public accountants with
respect to the Company within the meaning of the Act and the applicable published rules and
regulations thereunder.
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 opposite its name in Schedule II hereto, the principal amount of the
Securities set forth opposite such Underwriters 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
5
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 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 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
the Securities, 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.
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(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
second sentence of paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably request. 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.
(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
7
designate, will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the NASD, in connection with its
review of the offering; provided that in no event shall the Company 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), until the Business Day set forth on Schedule I hereto.
(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 Supplement, the issuance of the Securities and the fees of the
Trustee; (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 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 Companys 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,
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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 performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the
manner and within the time period required by Rule 424(b); the final term sheet contemplated
by Section 5(b) hereto, 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 or any notice by the Commission
objecting to its use shall have been issued and no proceedings for that purpose shall have
been instituted or threatened.
(b) Ballard Spahr Andrews & Ingersoll, LLP, counsel for the Company, shall have
furnished to the Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) the Company has been duly organized and is validly subsisting as a
corporation under the laws of the Commonwealth of Pennsylvania, with full corporate
power and authority under its articles of incorporation 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;
(ii) the Indenture is in due and proper form and has been duly and validly
authorized by the necessary corporate action, by orders duly entered from time to
time by the Pennsylvania Public Utility Commission and has been qualified under the
Trust Indenture Act and no other authorization, approval, consent, certificate or
order of any other state commission or regulatory authority or of any federal
commission or regulatory authority having been required in respect of the execution
and delivery of the Indenture; the Indenture has been duly and validly executed and
delivered and is a valid and enforceable instrument in accordance with its terms
except as the enforceability thereof may be limited by (1) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws of general
applicability relating or affecting the creditors rights, (2) applicable state laws
which may affect the remedies provided for in the Indenture without, however,
rendering inadequate, in such counsels opinion, the remedies available to the
Trustee for the practical realization of the benefit of the security intended to be
afforded thereby, and (3) general equitable principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(iii) the Securities are in due and proper form; the issue and sale of the
Securities by the Company in accordance with the terms of this Agreement have been
duly and validly authorized by the necessary corporate action and by orders duly
entered by the Pennsylvania Public Utility Commission, no authorization, approval,
consent, certificate or order of any other state commission or regulatory authority
or of any federal commission or regulatory authority having been
9
required in respect of such issue and sale; the Securities, when duly executed,
authenticated and delivered to the Underwriters against payment of the agreed
consideration therefor, will be valid and enforceable obligations of the Company in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws of general applicability relating to or
affecting creditors rights and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(iv) the Company has title in fee simple to the real property comprising its
important properties (including interests in properties owned as tenant-in-common
but not including certain of its properties held for electric or gas transmission
lines or water pipelines, which consist of right-of-way easements, and leased
properties), free and clear of liens and encumbrances except (A) the lien of the
Indenture, (B) excepted encumbrances as defined in the Indenture, (C) liens,
encumbrances and title defects not discoverable by a diligent search of the public
land records and judgment indexes, and (D) certain other minor exceptions,
restrictions, encumbrances and defects which are of a nature found in properties of
similar character and magnitude, and which, in such counsels opinion, do not in any
substantial way impair the security afforded by the Indenture; the property
descriptions in the Indenture (including the general granting clauses) are legally
sufficient to constitute the Indenture a lien on all real property presently owned
by the Company and described therein as subject to the lien thereof; and the real
and personal properties described in the Indenture constitute substantially all the
permanent physical properties and franchises of the Company except (x) such property
as has been duly released from the lien of the Indenture, and (y) certain other
classes of property expressly excepted in the Indenture;
(v) subject to minor exceptions which, in such counsels opinion, do not in any
substantial way impair the security afforded by the Indenture, (A) the Indenture
constitutes a valid first mortgage lien of record upon all real property presently
owned by the Company described therein as subject to the lien thereof (other than
properties expressly excepted therefrom, properties properly released from the lien
thereof pursuant to the terms thereof and substantially all of the Companys
leaseholds), except only as stated in sub-clauses (B), (C), and (D) of paragraph
(iv), and the after-acquired property clauses of the Indenture are effective,
according to their terms, to subject to the lien of the Indenture all after-acquired
real property of the Company located in the Commonwealth of Pennsylvania, subject
(x) to such encumbrances as may exist thereon at the time of the acquisition thereof
and (y) to the due recordation of the Indenture in the counties in which such
after-acquired properties are located; and (B) the Securities are secured by a valid
and, to the extent that it may be perfected by filing under the Uniform Commercial
Code, a perfected security interest in such of the personal property of the Company
as is described in the Indenture, whether such personal property is now owned or
hereinafter acquired by the Company (other than properties expressly excepted
therefrom; properties released from the
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security interest created thereby; proceeds as defined in the Uniform
Commercial Code to the extent limited by the terms of Section 9-315 of the Uniform
Commercial Code; after-acquired property subject to Section 552 of the Federal
Bankruptcy Code; property sold to a buyer in the ordinary course of business,
licensed to a licensee in the ordinary course of business or leased to a lessee in
the ordinary course of business; insurance policies (except to the extent that
payments thereunder are proceeds, as defined in the Uniform Commercial Code); and
contract rights or general intangibles which by their terms, or by law, are not
assignable), which security interest is prior to any other security interest other
than (1) excepted encumbrances as defined in the Indenture, (2) rights created and
security interests perfected other than by filing pursuant to the Uniform Commercial
Code, (3) present or future purchase money security interests, (4) security
interests in collateral which qualifies for priority over a conflicting security
interest as provided in Sections 9-322, 9-328, 9-329, 9-330 and 9-331 of the Uniform
Commercial Code, (5) security interests perfected under a certificate of title
statute with respect to property that becomes an accession under Section 9-335 of
the Uniform Commercial Code, and (6) perfected security interests to which property
hereafter acquired by the Company is subject at the time of such acquisition; such
counsel need express no opinion as to any actions that may be required to be taken
periodically under the Uniform Commercial Code or other applicable law in order for
the validity or perfection of any security interest to be maintained;
(vi) to the knowledge of such counsel, there are no material pending legal
proceedings to which the Company or any subsidiary is a party and which are required
to be set forth in the documents incorporated by reference in the Registration
Statement and Final Prospectus other than those referred to in such documents; and
the statements in any Preliminary Prospectus and the Final Prospectus under the
headings Description of the Bonds and Description of the First and Refunding
Mortgage Bonds fairly summarize the matters therein described;
(vii) the Registration Statement has become effective under the Act; any
required filing of the Base Prospectus, any Preliminary Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or any notice by the Commission objecting to its use has been issued, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than the financial statements
and other financial information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and such counsel has no reason to believe that on the
Effective Date the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
11
the Final Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each case, other than
the financial statements and other financial information contained therein, as to
which such counsel need express no opinion);
(viii) such counsel has no reason to believe that the Disclosure Package, as of
the Applicable Time of Sale, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion)
(ix) this Agreement has been duly authorized, executed and delivered by the
Company;
(x) 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 of 1940, as amended;
(xi) the Pennsylvania Public Utility Commission has entered an appropriate
order authorizing the Company to issue and sell the Securities as contemplated
herein; such order is in full force and effect and, to the best of such counsels
knowledge after due inquiry, no proceeding has been initiated upon appeal from or to
review the effectiveness of such order; no other consent, approval, authorization,
filing with or order of any court or state or federal governmental agency or body is
required in connection with the transactions contemplated herein or in the
Indenture, except such as have been obtained under the Act, the Trust Indenture Act,
and from the Pennsylvania Public Utility Commission, and such as may be required
under the blue sky or securities laws of any jurisdiction in connection with the
purchase and sale of the Securities by the Underwriters in the manner contemplated
in this Agreement and the Final Prospectus and such other approvals (specified in
such opinion) as have been obtained; and
(xii) neither the execution and delivery of this Agreement or the Supplement,
nor the consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof or thereof will contravene, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any property or
asset of the Company (other than the lien of the Indenture) pursuant to, (i) the
articles of incorporation and bylaws of the Company; (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 is a party or bound or to which its property is subject that is listed in
the Exhibit Index to the Companys Form 10-K
12
for the fiscal year ended December 31, 2006 and Forms 8-K filed with the
Commission during the period between January 1, 2007 and the Closing Date; or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable to the
Company of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any of its
properties.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws
of the United States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Representatives shall have received from Winston & Strawn LLP, counsel for the
Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any supplement thereto) 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 Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the Disclosure Package,
the Final Prospectus and any amendment or supplement thereto 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
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice by the Commission objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the Companys knowledge,
threatened; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto), there has been no material adverse effect on
the financial condition, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
13
ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and
caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof), the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there
shall not have been (i) any change or decrease specified in the letter or letters referred
to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the financial condition, business or properties of the
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 Final 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 offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(g) On the Closing Date, (i) the Securities shall be rated A2 by Moodys Investors
Service, Inc., A- by Standard & Poors Ratings Services and A by Fitch, Inc.,
respectively, and the Company shall have delivered to the Representatives evidence
satisfactory to the Representatives confirming that the Securities have such ratings, and
(ii) since the Execution Time, there shall not have occurred a downgrading in the rating
assigned to the Securities 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
agency shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities 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 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled
14
at, or at any time prior to, the Closing Date by the Representatives. Notice of such
cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 will be delivered at the office of
counsel for the Company, at Ballard Spahr Andrews & Ingersoll, LLP, 1735 Market Street, 51st Floor,
Philadelphia, Pennsylvania 19103, on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including fees and disbursements of counsel reasonably incurred) that shall
have been incurred by them in connection with the proposed purchase and sale of the Securities.
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) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or arise out of or are based upon
an omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact, in light of the circumstances in
which it was made, or an omission or alleged omission to state a material fact required to be
stated or necessary to make the statements therein, in light of the circumstances in which they
were made, not misleading, in any Preliminary Prospectus, the Final Prospectus, or in any amendment
or supplement thereto, or in any Issuer Free Writing Prospectus or any issuer information filed
or required to be filed pursuant to Rule 433(d) under the Act, 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 written information furnished to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion therein.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers, 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
15
Company by or on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in Section 8(a) above. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have. The Company
acknowledges that (i) the statement set forth on the cover page regarding delivery of the
Securities and (ii) under the heading Underwriting, (A) the list of Underwriters and their
respective participation in the sale of the Securities, (B) the sentences related to
concessions and reallowances and (C) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus, the Final Prospectus 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 respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional
release of each
16
indemnified party from all liability arising out of such claim, action, suit or
proceeding and does not include a statement as to, or admission of, fault, culpability or
failure to act on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8
is for any reason held to be unenforceable by an indemnified party or is insufficient to
hold harmless a party indemnified under paragraph (a) or (b) of this Section 8, although
applicable in accordance with its terms (including the requirements of Section 8(c) above),
the Company and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively Losses) to 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 Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder;
provided
,
further
, that each
Underwriters obligation to contribute to Losses hereunder shall be several and not joint.
If the allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of the
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) received by it, and
benefits received by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company on the one
hand or the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The 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, each
officer of the Company and each director 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).
17
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, 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 Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if (A) at any time prior to such time (i) trading in the common stock of Exelon
Corporation shall have been suspended by the Commission or the New York Stock Exchange, or trading
in securities generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities, (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 and (B) the effect of the event
as set forth in the foregoing clauses (iii) and (iv), as the case may be, on the financial markets
is such as to make it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the 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 any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. 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
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Greenwich Capital Markets, Inc., 600 Steamboat Road, Greenwich, Connecticut 06830, Attention:
Jennifer Powers (fax no.: (203)302-7305) and James Brucia (fax no.: (203) 422-4645), and J.P.
Morgan Securities Inc., 270 Park Avenue, New York, New York, Attention: High Grade Syndicate
Desk8
th
Floor (fax no.: (212) 834-6081); or, if sent to the Company, will be mailed,
delivered or telefaxed to Exelon Corporation, 10 South Dearborn Street, 52nd Floor, P.O. Box
805398, Chicago, Illinois 60680-5398, Attention: Vice President and Treasurer (fax no.: (312)
394-4082) and confirmed to the General Counsel (fax no.: (215) 568-3389).
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
No Fiduciary Duty
. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Companys engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
15.
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.
16.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
17.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
18.
Definitions
. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
Act shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Agreement shall mean this Underwriting Agreement including all schedules attached
hereto and made a part hereof.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Effective Time.
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Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Preliminary Prospectus, including the Base
Prospectus, as amended and supplemented to the Applicable Time of Sale, (ii) the final term
sheet prepared and filed pursuant to Section 5(b) hereof, (iii) any Issuer Free Writing
Prospectus and (iv) any other Free Writing Prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package.
Notwithstanding any provision hereof to the contrary, each document included in the
Disclosure Package shall be deemed to include all documents 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.
Effective Date shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b) Registration Statement
became or becomes effective.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean the date and time that this Agreement is executed and
delivered by the parties hereto.
Final Prospectus shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Investment Company Act shall mean the Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
Issuer Free Writing Prospectus shall mean any issuer free writing prospectus as
defined in Rule 433 under the Act.
NASD shall mean the National Association of Securities Dealers, Inc.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base
Prospectus which describes the Securities and the offering thereof and is used prior to the
filing of the Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on the
Effective Date and, in the event any post-effective amendment thereto or
20
any Rule 462(b) Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be.
Rule 158, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424, Rule 430B and
Rule 462 refer to such rules under the Act.
Rule 430B Information shall mean information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430B.
Rule 462(b) Registration Statement shall mean a registration statement and any
amendments thereto filed pursuant to Rule 462(b) relating to the offering covered by the
registration statement referred to in Section 1(a) hereof.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
21
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
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Very truly yours,
PECO ENERGY COMPANY
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By:
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Name:
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Title:
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The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I
hereto.
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GREENWICH CAPITAL MARKETS, INC.
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By:
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Name:
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Title:
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J.P. MORGAN SECURITIES INC.
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By:
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Name:
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Title:
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For themselves and the other several Underwriters
named in Schedule II to the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement, dated March 12, 2007
Registration Statement No. 333-105207
Representatives: Greenwich Capital Market, Inc. and J.P. Morgan Securities Inc.
Title, Purchase Price and Description of Securities:
Title: First and Refunding Mortgage Bonds, 5.70% Series due 2037
Principal amount: $175,000,000
Purchase price (include accrued
interest or amortization, if
any): 99.474%
Underwriting Discount: .875%
Sinking fund provisions: None
Redemption provisions: As set forth in the Final Prospectus
Other provisions: As set forth in the Final Prospectus
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Closing Date, Time and Location:
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March 19, 2007 at approximately 11:00 a.m. EDT
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
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Type of Offering: Non-delayed
Applicable Time of Sale pursuant to Section 2(c) of the Underwriting Agreement: 12:45 p.m. EDT,
Monday, March 12, 2007
SCHEDULE II
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Principal Amount
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|
of Securities to
|
|
Underwriters
|
|
be Purchased
|
|
J.P. Morgan Securities Inc.
|
|
$
|
61,250,000
|
|
Greenwich Capital Markets, Inc.
|
|
$
|
61,250,000
|
|
Dresdner Kleinwort Securities LLC
|
|
$
|
15,750,000
|
|
KeyBank Capital Markets, a division of McDonald Investments, Inc.
|
|
$
|
15,750,000
|
|
CastleOak Securities, L.P.
|
|
$
|
10,500,000
|
|
Loop Capital Markets, LLC
|
|
$
|
10,500,000
|
|
|
|
|
|
|
Total
|
|
$
|
175,000,000
|
|
|
|
|
|
Annex I
PECO Energy Company
Pricing Term Sheet
|
|
|
Issuer:
|
|
PECO Energy Company
|
Size:
|
|
$175,000,000
|
Maturity:
|
|
March 15, 2037
|
Coupon:
|
|
5.70%
|
Price to Public:
|
|
99.474% of face amount
|
Yield to maturity:
|
|
5.737%
|
Spread to Benchmark Treasury:
|
|
+ 102 basis points
|
Benchmark Treasury:
|
|
4.500% due February 15, 2036
|
Benchmark Treasury Yield:
|
|
4.717%
|
Interest Payment Dates:
|
|
March 15 and September 15, commencing September 15, 2007
|
Redemption Provisions:
|
|
|
Make-whole call
|
|
At any time at a discount rate of Treasury plus 20 basis points
|
Settlement:
|
|
March 19, 2007
|
CUSIP:
|
|
693304AJ6 / US693304AJ61
|
Ratings:
|
|
A2 (Moodys); A- (S&P); A (Fitch)
|
Note:
A securities rating is not a recommendation to buy, sell or hold
securities and may be subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at
www.sec.gov
. Alternatively, the issuer, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by calling J.P. Morgan Securities Inc. collect at (212) 834-4533 or by contacting RBS Greenwich
Capital by telephone (toll free) at 1-866-884-2071 or by email at
offeringmaterials@rbsgc.com
.
Exhibit 4.1
PECO ENERGY COMPANY
TO
U.S. BANK NATIONAL ASSOCIATION, TRUSTEE
ONE HUNDRED AND THIRD SUPPLEMENTAL
INDENTURE DATED AS OF
MARCH 1, 2007
TO
FIRST AND REFUNDING MORTGAGE
OF
THE COUNTIES GAS AND ELECTRIC
COMPANY
TO
FIDELITY TRUST COMPANY, TRUSTEE
DATED MAY 1, 1923
5.70% SERIES DUE 2037
THIS SUPPLEMENTAL INDENTURE dated as of March 1, 2007, by and between PECO ENERGY COMPANY, a
corporation organized and existing under the laws of the Commonwealth of Pennsylvania (hereinafter
called the Company), party of the first part, and U.S. BANK NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States of America
(hereinafter called the Trustee), as successor Trustee under the Mortgage hereinafter mentioned,
party of the second part,
Witnesseth that
WHEREAS, The Counties Gas and Electric Company (hereinafter called Counties Company), a
Pennsylvania corporation and a predecessor to the Company, duly executed and delivered to Fidelity
Trust Company, a Pennsylvania corporation to which the Trustee is successor, as Trustee, a certain
indenture of mortgage and deed of trust dated May 1, 1923 (hereinafter called the Mortgage), to
provide for the issue of, and to secure, its First and Refunding Mortgage Bonds, issuable in series
and without limit as to principal amount except as provided in the Mortgage, the initial series of
Bonds being designated the 6% Series of 1923, and the terms and provisions of other series of bonds
secured by the Mortgage to be determined as provided in the Mortgage; and
WHEREAS, thereafter Counties Company, Philadelphia Suburban-Counties Gas and Electric Company
(hereinafter called Suburban Company), and the Company, respectively, have from time to time
executed and delivered indentures supplemental to the Mortgage, providing for the creation of
additional series of bonds secured by the Mortgage and for amendment of certain of the terms and
provisions of the Mortgage and of indentures supplemental thereto, or evidencing the succession of
Suburban Company to Counties Company and of the Company to Suburban Company, such indentures
supplemental to the Mortgage, the respective dates, parties thereto, and purposes thereof, being as
follows:
2
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
First
September 1, 1926
|
|
Counties Company to
Fidelity-Philadelphia
Trust Company
(Successor to Fidelity
Trust Company)
|
|
Bonds of 5% Series of
1926
|
|
|
|
|
|
Second
May 1, 1927
|
|
Suburban Company to
Fidelity-Philadelphia
Trust Company
|
|
Evidencing succession of
Suburban Company to
Counties Company
|
|
|
|
|
|
Third
May 1, 1927
|
|
Suburban Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 4-1/2% Series
due 1957; amendment of
certain provisions of
Mortgage
|
|
|
|
|
|
Fourth
November 1, 1927
|
|
Suburban Company to
Fidelity-Philadelphia
Trust Company
|
|
Additional Bonds of
4-1/2% Series due 1957
|
|
|
|
|
|
Fifth
January 31, 1931
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Evidencing succession of
Company to
Suburban Company
|
|
|
|
|
|
Sixth
February 1, 1931
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 4% Series
due 1971
|
|
|
|
|
|
Seventh
March 1, 1937
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-1/2% Series
due 1967; amendment of
certain provisions of
Mortgage
|
|
|
|
|
|
Eighth
December 1, 1941
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 2-3/4% Series
due 1971; amendment of
certain provisions of
Mortgage
|
|
|
|
|
|
Ninth
November 1, 1944
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 2-3/4% Series
due 1967 and 2-3/4% Series
due 1974; amendment of
certain provisions of
Mortgage
|
|
|
|
|
|
Tenth
December 1, 1946
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 2-3/4% Series
due 1981; amendment of
certain provisions of
Mortgage*
|
3
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Eleventh
February 1, 1948
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 2-7/8% Series
due 1978*
|
|
|
|
|
|
Twelfth
January 1, 1952
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-1/4% Series
due 1982*
|
|
|
|
|
|
Thirteenth
May 1, 1953
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-7/8% Series
due 1983*
|
|
|
|
|
|
Fourteenth
December 1, 1953
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-1/8% Series
due 1983*
|
|
|
|
|
|
Fifteenth
April 1, 1955
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-1/8% Series
due 1985*
|
|
|
|
|
|
Sixteenth
September 1, 1957
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 4-5/8% Series
due 1987; amendment of
certain provisions of
Mortgage*
|
|
|
|
|
|
Seventeenth
May 1, 1958
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 3-3/4% Series
due 1988; amendment of
certain provisions of
Mortgage*
|
|
|
|
|
|
Eighteenth
December 1, 1958
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 4-3/8% Series
due 1986*
|
|
|
|
|
|
Nineteenth
October 1, 1959
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 5% Series
due 1989*
|
|
|
|
|
|
Twentieth
May 1, 1964
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 4-1/2% Series
due 1994*
|
|
|
|
|
|
Twenty-first
October 15, 1966
|
|
Company to
Fidelity-Philadelphia
Trust Company
|
|
Bonds of 6% Series due
1968-1973*
|
|
|
|
|
|
Twenty-second
June 1, 1967
|
|
Company to The Fidelity Bank
(formerly
Fidelity-Philadelphia
Trust Company)
|
|
Bonds of 5-1/4 % Series due
1968-1973 and 5-3/4 %
Series due 1977*
|
|
|
|
|
|
Twenty-third
October 1, 1957
|
|
Company to The Fidelity
Bank
|
|
Bonds of 6-1/8 % Series
due 1997*
|
4
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Twenty-fourth
March 1, 1968
|
|
Company to
The Fidelity
Bank
|
|
Bonds of 6-1/2% Series
due 1993; amendment of
Article XIV of
Mortgage*
|
|
|
|
|
|
Twenty-fifth
September 10, 1968
|
|
Company to The Fidelity
Bank
|
|
Bonds of 1968 Series due
1969-1976*
|
|
|
|
|
|
Twenty-sixth
August 15, 1969
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8% Series due
1975*
|
|
|
|
|
|
Twenty-seventh
February 1, 1970
|
|
Company to The Fidelity
Bank
|
|
Bonds of 9% Series due
1995*
|
|
|
|
|
|
Twenty-eighth
May 1, 1970
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8-1/2% Series
due 1976*
|
|
|
|
|
|
Twenty-ninth
December 15, 1970
|
|
Company to The Fidelity
Bank
|
|
Bonds of 7-3/4% Series
due 2000*
|
|
|
|
|
|
Thirtieth
August 1, 1971
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8-1/4% Series
due 1996*
|
|
|
|
|
|
Thirty-first
December 15, 1971
|
|
Company to The Fidelity
Bank
|
|
Bonds of 7-3/8% Series
due 2001; amendment of
Article XI of Mortgage*
|
|
|
|
|
|
Thirty-second
June 15, 1972
|
|
Company to The Fidelity
Bank
|
|
Bonds of 7-1/2% Series
due 1998*
|
|
|
|
|
|
Thirty-third
January 15, 1973
|
|
Company to The Fidelity
Bank
|
|
Bonds of 7-1/2% Series
due 1999*
|
|
|
|
|
|
Thirty-fourth
January 15, 1974
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8-1/2% Series
due 2004
|
|
|
|
|
|
Thirty-fifth
October 15, 1974
|
|
Company to The Fidelity
Bank
|
|
Bonds of 11% Series
due 1980*
|
|
|
|
|
|
Thirty-sixth
April 15, 1975
|
|
Company to The Fidelity
Bank
|
|
Bonds of 11-5/8% Series
due 2000*
|
|
|
|
|
|
Thirty-seventh
August 1, 1975
|
|
Company to The Fidelity
Bank
|
|
Bonds of 11% Series due
2000*
|
|
|
|
|
|
Thirty-eighth
March 1, 1976
|
|
Company to The Fidelity
Bank
|
|
Bonds of 9-1/8% Series
due 2006*
|
|
|
|
|
|
Thirty-ninth
August 1, 1976
|
|
Company to The Fidelity
Bank
|
|
Bonds of 9-5/8% Series
due 2002*
|
5
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Fortieth
February 1, 1977
|
|
Company to The Fidelity
Bank
|
|
Bonds of Pollution
Control Series A
and Pollution
Control Series B*
|
|
|
|
|
|
Forty-first
March 15, 1977
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8-5/8% Series
due 2007*
|
|
|
|
|
|
Forty-second
July 15, 1977
|
|
Company to The Fidelity
Bank
|
|
Bonds of 8-5/8% Series
due 2003*
|
|
|
|
|
|
Forty-third
March 15, 1978
|
|
Company to The Fidelity
Bank
|
|
Bonds of 9-1/8% Series
due 2008*
|
|
|
|
|
|
Forty-fourth
October 15, 1979
|
|
Company to The Fidelity
Bank
|
|
Bonds of 12-1/2% Series
due 2005*
|
|
|
|
|
|
Forty-fifth
October 15, 1980
|
|
Company to The Fidelity
Bank
|
|
Bonds of 13-3/4% Series
due 1992*
|
|
|
|
|
|
Forty-sixth
March 1, 1981
|
|
Company to The Fidelity
Bank
|
|
Bonds of 15-1/4% Series
due 1996; amendment of
Article VIII of
Mortgage*
|
|
|
|
|
|
Forty
-
seventh
March 1, 1981
|
|
Company to The Fidelity
Bank
|
|
Bonds of 15% Series due
1996; amendment of
Article VIII of
Mortgage*
|
|
|
|
|
|
Forty
-
eighth
July 1, 1981
|
|
Company to The Fidelity
Bank
|
|
Bonds of 17-5/8% Series
due 2011*
|
|
|
|
|
|
Forty-ninth
September 15, 1981
|
|
Company to The Fidelity
Bank
|
|
Bonds of 18-3/4% Series
due 2009*
|
|
|
|
|
|
Fiftieth
April 1, 1982
|
|
Company to The Fidelity
Bank
|
|
Bonds of 18% Series due
2012*
|
|
|
|
|
|
Fifty
-
first
October 1, 1982
|
|
Company to The Fidelity
Bank
|
|
Bonds of 15-3/8% Series
due 2010*
|
|
|
|
|
|
Fifty
-
second
June 15, 1983
|
|
Company to The Fidelity
Bank
|
|
Bonds of 13-3/8% Series
due 2013*
|
|
|
|
|
|
Fifty
-
third
November 15, 1984
|
|
Company to Fidelity Bank,
National Association
(formerly The Fidelity Bank)
|
|
Bonds of 13.05% Series
due 1994; amendment
of Article VIII of
Mortgage*
|
6
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Fifty
-
fourth
December 1, 1984
|
|
Company
to Fidelity Bank,
National Association
|
|
Bonds of 14% Series due
1988-1994; amendment
of Article VIII of
Mortgage*
|
|
|
|
|
|
Fifty
-
fifth
May 15, 1985
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series C*
|
|
|
|
|
|
Fifty
-
sixth
October 1, 1985
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series D*
|
|
|
|
|
|
Fifty
-
seventh
November 15, 1985
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 10-7/8% Series
due 1995*
|
|
|
|
|
|
Fifty
-
eight
November 15, 1985
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 11-3/4% Series
due 2014*
|
|
|
|
|
|
Fifty
-
ninth
June 1, 1986
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series E*
|
|
|
|
|
|
Sixtieth
November 1, 1986
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 10-1/4% Series
due 2016*
|
|
|
|
|
|
Sixty
-
first
November 1, 1986
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 8-3/4% Series
due 1994*
|
|
|
|
|
|
Sixty
-
second
April 1, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 9-3/8% Series
due 2017*
|
|
|
|
|
|
Sixty
-
third
July 15, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 11% Series due
2016*
|
|
|
|
|
|
Sixty
-
fourth
July 15, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 10% Series due
1997*
|
|
|
|
|
|
Sixty
-
fifth
August 1, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 10-1/4% Series
due 2007*
|
|
|
|
|
|
Sixty
-si
x
th
October 15, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 11% Series due
1997*
|
|
|
|
|
|
Sixty
-
seventh
October 15, 1987
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 12-1/8% Series
due 2016*
|
|
|
|
|
|
Sixty
-
eighth
April 15, 1988
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 10% Series due
1998*
|
|
|
|
|
|
Sixty
-
ninth
April 15, 1988
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 11% Series due
2018*
|
7
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Seventieth
June 15, 1989
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of 10% Series due
2019*
|
|
|
|
|
|
Seventy
-
first
October 1, 1989
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of 9-7/8% Series
due 2019*
|
|
|
|
|
|
Seventy
-
second
October 1, 1989
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of 9-1/4% Series
due 1999*
|
|
|
|
|
|
Seventy
-
third
October 1, 1989
|
|
Company to Fidelity bank,
National Association
|
|
Medium-Term Note
Series A*
|
|
|
|
|
|
Seventy
-
fourth
October 15, 1990
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of 10-1/2% Series
due 2020*
|
|
|
|
|
|
Seventy
-
fifth
October 15, 1990
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of 10% Series due
2000*
|
|
|
|
|
|
Seventy
-
sixth
April 1, 1991
|
|
Company to Fidelity bank,
National Association
|
|
Bonds of Pollution
Control Series F
and Pollution
Control Series G*
|
|
|
|
|
|
Seventy
-
seventh
December 1, 1991
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series H*
|
|
|
|
|
|
Seventy
-
eighth
January 15, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 7-1/2% 1992
Series due 1999*
|
|
|
|
|
|
Seventy
-
ninth
April 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 8% Series due
2002*
|
|
|
|
|
|
Eightieth
April 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 8-3/4% Series
due 2022*
|
|
|
|
|
|
Eighty
-
first
June 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series I*
|
|
|
|
|
|
Eighty
-
second
June 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 8-5/8% Series
due 2022*
|
|
|
|
|
|
Eighty
-
third
July 15, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 7-1/2% Series
due 2002*
|
|
|
|
|
|
Eighty
-
fourth
September 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 8-1/4% Series
due 2022*
|
|
|
|
|
|
Eighty
-
fifth
September 1, 1992
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 7-1/8% Series
due 2002*
|
8
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
Eighty
-
sixth
March 1, 1993
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 6-5/8% Series
due 2003*
|
|
|
|
|
|
Eighty
-
Seventh
March 1, 1993
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 7-3/4% Series
due 2023*
|
|
|
|
|
|
Eighty
-
eighth
March 1, 1993
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of Pollution
Control Series J,
Pollution Control
Series K, Pollution
Control Series L
and Pollution Control
Series M*
|
|
|
|
|
|
Eighty
-
ninth
May 1, 1993
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 6-1/2% Series
due 2003*
|
|
|
|
|
|
Ninetieth
May 1, 1993
|
|
Company to Fidelity Bank,
National Association
|
|
Bonds of 7-3/4% Series
2 due 2023*
|
|
|
|
|
|
Ninety
-
first
August 15, 1993
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania (formerly
Fidelity Bank,
National
Association)
|
|
Bonds of 7-1/8% Series
due 2023*
|
|
|
|
|
|
Ninety
-
second
August 15, 1993
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania
|
|
Bonds of 6-3/8% Series
due 2005*
|
|
|
|
|
|
Ninety
-
third
August 15, 1993
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania
|
|
Bonds of 5-3/8% Series
due 1998*
|
|
|
|
|
|
Ninety
-
fourth
November 1, 1993
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania
|
|
Bonds of 7-1/4% Series
due 2024*
|
|
|
|
|
|
Ninety
-
fifth
November 1, 1993
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania
|
|
Bonds of 5-5/8% Series
due 2001*
|
|
|
|
|
|
Ninety-sixth
May 1, 1995
|
|
Company to First Fidelity Bank,
N.A., Pennsylvania
|
|
Medium Term Note Series B*
|
|
|
|
|
|
Ninety-seventh
October 15, 2001
|
|
Company to First Union National Bank
(formerly First
Fidelity Bank, N.A.,
Pennsylvania)
|
|
Bonds of 5.95% Series
due 2011*
|
|
|
|
|
|
Ninety-eighth
October 1, 2002
|
|
Company to Wachovia Bank,
National Association (formerly
First Union
National Bank)
|
|
Bonds of 5.95% Series
Due 2011*
|
|
|
|
|
|
Ninety-ninth
September 15, 2002
|
|
Company to Wachovia Bank,
National Association (formerly
First Union
National Bank)
|
|
Bonds of 4.75% Series
Due 2012*
|
9
|
|
|
|
|
Supplemental Indenture
|
|
|
|
|
and Date
|
|
Parties
|
|
Providing for:
|
One Hundredth
April 15, 2003
|
|
Company to Wachovia Bank,
National Association (formerly
First Union National Bank)
|
|
Bonds of 3.50% Series
Due 2008*
|
|
|
|
|
|
One Hundred and First
April 15, 2004
|
|
Company to Wachovia Bank,
National Association (formerly
First Union National Bank)
|
|
Bonds of 5.90% Series
Due 2034*
|
|
|
|
|
|
One Hundred and Second
September 15, 2006
|
|
Company to Wachovia Bank,
National Association (formerly
First Union National Bank)
|
|
Bonds of 5.95% Series
Due 2036; amendment of
certain provisions of
Mortgage*
|
|
|
|
*
|
|
And amendment of certain provisions of the Ninth Supplemental Indenture.
|
10
WHEREAS, the respective principal amounts of the bonds of each series presently
outstanding under the Mortgage and the several supplemental indentures above referred to, are as
follows:
|
|
|
|
|
|
|
PRINCIPAL
|
|
Series
|
|
AMOUNT
|
|
3.50% Series due 2008
|
|
|
450,000,000
|
|
Pollution Control Series J due 2012
|
|
|
50,000,000
|
|
Pollution Control Series K due 2012
|
|
|
50,000,000
|
|
Pollution Control Series L due 2012
|
|
|
50,000,000
|
|
Pollution Control Series M due 2012
|
|
|
4,200,000
|
|
4.75% Series due 2012
|
|
|
225,000,000
|
|
5.95% Series due 2011
|
|
|
250,000,000
|
|
5.90% Series due 2034
|
|
|
75,000,000
|
|
5.95% Series due 2036
|
|
|
300,000,000
|
|
Total
|
|
$
|
1,454,200,000
|
|
|
|
|
|
WHEREAS, the Company deems it advisable and has determined, pursuant to Article XI of the
Mortgage,
(a) to convey, pledge, transfer and assign to the Trustee and to subject specifically to the
lien of the Mortgage additional property not therein or in any supplemental indenture specifically
described but now owned by the Company and acquired by it by purchase or otherwise; and
(b) to create a new series of bonds to be issued from time to time under, and secured by, the
Mortgage, to be designated PECO Energy Company First and Refunding Mortgage Bonds, 5.70% Series due
2037, (hereinafter sometimes called the bonds of the New Series or the bonds of the 5.70% Series
due 2037); and for the above-mentioned purposes to execute, deliver and record this Supplemental
Indenture; and
WHEREAS, the Company has determined by proper corporate action that the terms, provisions and
form of the bonds of the New Series shall be substantially as follows:
11
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.
(Form of Face of Bond)
PECO ENERGY COMPANY
|
|
|
|
|
|
REGISTERED
|
|
REGISTERED
|
NUMBER
|
|
|
FIRST AND REFUNDING MORTGAGE BOND,
5.70% SERIES DUE 2037
,
DUE March 15, 2037
PECO Energy Company, a Pennsylvania corporation (hereinafter called the Company), for value
received, hereby promises to pay to or registered
assigns,
Dollars on March 15
,
2037, at the office or agency of the Company, in the City of
Philadelphia, Pennsylvania, or, at the option of the holder, at the office or agency of the
Company, in the Borough of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment shall constitute legal tender for the payment of public
and private debts, and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) thereon from the date hereof at the rate of 5.70 percent per annum in like coin or
currency, payable at either of the offices aforesaid on March 15 and September 15, commencing on
September 15, 2007, in each year until the Companys obligation with respect to the payment of such
principal shall have been discharged.
The Company may fix a date, not more than fourteen calendar days prior to any interest payment
date, as a record date for determining the registered holder of this bond entitled to such interest
payment, in which case only the registered holder on such record date shall be entitled to receive
such payment, notwithstanding any transfer of this bond upon the registration books subsequent to
such record date.
This bond shall not be valid or become obligatory for any purpose unless it shall have been
authenticated by the certificate of the Trustee under the Mortgage hereinafter mentioned endorsed
hereon.
12
The provisions of this bond are continued on the reverse hereof and such continued provisions
shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, PECO Energy Company has caused this instrument to be signed in its
corporate name with the manual or facsimile signature of its President or a Vice President and its
corporate seal to be impressed or a facsimile imprinted hereon, duly attested by the manual or
facsimile signature of its Secretary or an Assistant Secretary.
|
|
|
|
|
|
|
Dated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PECO ENERGY COMPANY
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President or Vice President
|
|
|
|
|
|
|
|
|
|
(SEAL)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Attest:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Secretary or Assistant Secretary
|
|
|
13
(Form of Reverse of New Series of Bond)
PECO ENERGY COMPANY
First and Refunding Mortgage Bond,
5.70% Series Due 2037
Due March 15, 2037
(CONTINUED)
This bond is one of a duly authorized issue of bonds of the Company, unlimited as to amount
except as provided in the Mortgage hereinafter mentioned or in any indenture supplemental thereto,
and is one of a series of said bonds known as First and Refunding Mortgage Bonds, 5.70% Series due
2037. This bond and all other bonds of said issue are issued and to be issued under and pursuant to
and are all secured equally and ratably by an indenture of mortgage and deed of trust dated May 1,
1923, duly executed and delivered by The Counties Gas and Electric Company (to which the Company is
successor) to Fidelity Trust Company, as Trustee (to which U.S. Bank National Association, a
national banking association organized and existing under the laws of the United States of America,
is successor Trustee), as amended, modified or supplemented by certain supplemental indentures from
the Company or its predecessors to said successor Trustee or its predecessors, said mortgage, as so
amended, modified or supplemented being herein called the Mortgage. Reference is hereby made to
the Mortgage for a statement of the property mortgaged and pledged, the nature and extent of the
security, the rights of the holders of said bonds and of the Trustee in respect of such security,
the rights, duties and immunities of the Trustee, and the terms and conditions upon which said
bonds are and are to be secured, and the circumstances under which additional bonds may be issued.
As provided in the Mortgage, the bonds secured thereby may be for various principal sums and
are issuable in series, which series may mature at different times, may bear interest at different
rates, and may otherwise vary. The bonds of this series mature on March 15, 2007, and are issuable
only in registered form without coupons in any denomination authorized by the Company.
Any bond or bonds of this series may be exchanged for another bond or bonds of this series in
a like aggregate principal amount in authorized denominations, upon presentation at the office of
the Trustee in the City of Philadelphia, Pennsylvania, or, at the option of the holder, at the
office or agency of the Company in the Borough of Manhattan, The City of New York, all subject to
the terms of the Mortgage but without any charge other than a sum sufficient to reimburse the
Company for any stamp tax or other governmental charge incident to the exchange.
The bonds of this series are redeemable at the option of the Company, as a whole or in part,
at any time 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, 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 to be redeemed, plus accrued interest to the redemption date, or (2)
as determined by the Quotation Agent, the sum of the present values of the remaining
14
scheduled payments of principal and interest on the 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 (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate plus 20 basis points, plus accrued interest to 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 this series or portions of the bonds of this series called for
redemption.
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 this series
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 this series.
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 J.P. Morgan Securities Inc. and Greenwich
Capital Markets, Inc. and their respective successors, unless any of them ceases to be a primary
U.S. Government securities dealer in New York City (a 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 5:00 p.m., New York City
time, on the third business day preceding that redemption date.
The principal of this bond may be declared or may become due on the conditions, in the manner
and with the effect provided in the Mortgage upon the happening of an event of default as in the
Mortgage provided.
15
This bond is transferable by the registered holder hereof in person or by attorney, duly
authorized in writing, at the office of the Trustee in the City of Philadelphia, Pennsylvania, or,
at the option of the holder, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, in books of the Company to be kept for that purpose, upon surrender and
cancellation hereof, and upon any such transfer, a new registered bond or bonds, without coupons,
of this series and for the same aggregate principal amount, will be issued to the transferee in
exchange herefor, all subject to the terms of the Mortgage but without payment of any charge other
than a sum sufficient to reimburse the Company for any stamp tax or other governmental charge
incident to the transfer. The Company, the Trustee, and any paying agent may deem and treat the
person in whose name this bond is registered as the absolute owner hereof for the purpose of
receiving payment of or on account of the principal and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or interest on this bond to any
incorporator or any past, present or future stockholder, officer or director of the Company or of
any predecessor or successor corporation, either directly or indirectly, by virtue of any statute
or by enforcement of any assessment or otherwise, and any and all liability of the said
incorporators, stockholders, officers or directors of the Company or of any predecessor or
successor corporation in respect to this bond is hereby expressly waived and released by every
holder hereof, except to the extent that such liability may not be waived or released under the
provisions of the Securities Act of 1933 or of the rules and regulations of the Securities and
Exchange Commission thereunder.
(End of Form of Reverse of Bond)
16
and
WHEREAS, on the face of each of the bonds of the New Series, there is to be endorsed a
certificate of the Trustee in substantially the following form, to wit:
(Form of Trustees Certificate)
This bond is one of the bonds, of the series designated therein, provided for in the
within-mentioned Mortgage and in the One Hundred and Third Supplemental Indenture dated as of March
1, 2007.
|
|
|
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
Authorized Officer
|
|
|
and
WHEREAS, all acts and things necessary to make the bonds of the New Series in the principal
amount of $175,000,000, when duly executed by the Company and authenticated by the Trustee as
provided in the Mortgage and indentures supplemental thereto, and issued by the Company, the valid,
binding and legal obligations of the Company, and this Supplemental Indenture a valid and
enforceable supplement to the Mortgage, have been done, performed and fulfilled and the execution
and delivery hereof have been in all respects duly and lawfully authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to secure the payment of the principal of and interest on all bonds issued and
to be issued under the Mortgage and/or under any indenture supplemental thereto, according to their
tenor and effect, and according to the terms of the Mortgage and of any indenture supplemental
thereto, and to secure the performance of the covenants and obligations in the bonds and in the
Mortgage and any indenture supplemental thereto respectively contained, and for the proper
assuring, conveying, and confirming unto the Trustee, its successors in trust and its and their
assigns forever, upon the trusts and for the purposes expressed in the Mortgage and in any
indentures supplemental thereto, all and singular the estates, property and franchises of the
Company thereby mortgaged or intended so to be, the Company, for and in consideration of the
premises and of the sum of One Dollar ($1.00) in hand paid by the Trustee to the Company upon the
execution and delivery of this Supplemental Indenture, receipt whereof is hereby acknowledged, and
of other good and valuable consideration, has granted, bargained, sold, conveyed, released,
confirmed, pledged, assigned, transferred and set over and by these presents does grant, bargain,
sell, convey, release, confirm, pledge, assign, transfer, and set over to U.S. Bank National
Association, as Trustee, and to its successors in trust and its and their assigns forever, all the
following described property, real, personal and mixed of the Company, viz.:
17
The real property set forth in Schedule A, attached hereto and hereby made a part hereof, with
any improvements thereon erected as may be owned by the Company but not specifically described in
the Mortgage or in any indenture supplemental thereto heretofore executed, in the places set forth
in
Schedule A
.
All of the real property with any improvements thereon erected as may be owned by the Company
and described in the Mortgage or in any indenture supplemental thereto as may heretofore have been
executed, delivered and recorded, but excluding therefrom all real property heretofore released
from the lien of the Mortgage. The purpose of restating such prior conveyances as security is to
confirm that the obligations of the Company as provided in this Supplemental Indenture are included
within the lien and security of the Mortgage, and that public record be made of such purpose and
fact by the recording of this Supplemental Indenture.
Together with all gas works, electric works, plants, buildings, structures, improvements and
machinery located upon such real estate or any portion thereof, and all rights, privileges and
easements of every kind and nature appurtenant thereto, and all and singular tenements,
hereditaments and appurtenances belonging to the real estate or any part thereof hereinbefore
described or referred to or intended so to be, or in any way appertaining thereto, and the
reversions, remainders, rents, issues and profits thereof; also all the estate, right, title,
interest, property, possession, claim and demand whatsoever, as well in law as in equity, of the
Company, of, in and to the same and any and every part thereof, with the appurtenances.
Also all the Companys electric transmission and distribution lines and systems, substations,
transforming stations, structures, machinery, apparatus, appliances, devices and appurtenances.
Also all the Companys gas transmission and distribution mains, pipes, pipe lines and systems,
storage facilities, structures, machinery, apparatus, appliances, devices and appurtenances.
Also all plants, systems, works, improvements, buildings, structures, fixtures, appliances,
engines, furnaces, boilers, machinery, retorts, tanks, condensers, pumps, gas tanks, holders,
reservoirs, expansion tanks, gas mains and pipes, tunnels, service pipe, pipe lines, fittings,
gates, valves, connections, gas and electric meters, generators, dynamos, fans, supplies, tools and
implements, tracks, sidings, motor and other vehicles, all electric light lines, electric power
lines, transmission lines, distribution lines, conduits, cables, stations, substations, and
distributing systems, motors, conductors, converters, switchboards, shafting, belting, wires,
mains, feeders, poles, towers, mast arms, brackets, pipes, lamps, insulators, house wiring
connections and all instruments, appliances, apparatus, fixtures, fittings and equipment and all
stores, repair parts, materials and supplies of every nature and kind whatsoever now or hereafter
owned by the Company in connection with or appurtenant to its plants and systems for production,
purchase, storage, transmission, distribution, utilization and sale of gas and its by-products and
residual products, and/or for the generation, production
,
purchase, storage, transmission,
distribution, utilization and sale of electricity, or in connection with such business.
Also all the goodwill of the business of the Company, and all rights, claims, contracts,
leases, patents, patent rights, and agreements, all accounts receivable, accounts, claims, demands,
18
choses in action, books of account, cash assets, franchises, ordinances, rights, powers,
easements, water rights, riparian rights, licenses, privileges, immunities, concessions and
consents now or hereafter owned by the Company in connection with or appurtenant to its said
business.
Also all the right, title and interest of the Company in and to all contracts for the
purchase, sale or supply of gas, and its by-products and residual products of electricity and
electrical energy, now or hereafter entered into by the Company with the right on the part of the
Trustee, upon the happening of an event of default as defined in the Mortgage as supplemented by
any supplemental indenture, to require a specific assignment of any and all such contracts,
whenever it shall request the Company to make the same.
Also all rents, tolls, earnings, profits, revenues, dividends and income arising or to arise
from any property now owned, leased, operated or controlled or hereafter acquired, leased, operated
or controlled by the Company and subject to the lien of the Mortgage and indentures supplemental
thereto.
Also all the estate, right, title and interest of the Company, as lessee, in and to any and
all demised premises under any and all agreements of lease now or at any time hereafter in force,
insofar as the same may now or hereafter be assignable by the Company.
Also all other property, real, personal and mixed not hereinbefore specified or referred to,
of every kind and nature whatsoever, now owned, or which may hereafter be owned by the Company
(except shares of stock, bonds or other securities not now or hereafter specifically pledged under
the Mortgage and indentures supplemental thereto or required to be pledged thereunder by the
provisions of the Mortgage or any indenture supplemental thereto), together with all and singular
the tenements, hereditaments and appurtenances thereunto belonging or in any way appertaining and
the reversions, remainder or remainders, rents, issues and profits thereof; and also all the
estate, right, title, interest, property, claim and demand whatsoever as well in law as in equity
of the Company of, in and to the same and every part and parcel thereof.
It is the intention and it is hereby agreed that all property and the earnings and income
thereof acquired by the Company after the date hereof shall be as fully embraced within the
provisions hereof and subject to the lien hereby created for securing the payment of all bonds,
together with the interest thereon, as if the property were now owned by the Company and were
specifically described herein and conveyed hereby, provided nevertheless, that no shares of stock,
bonds or other securities now or hereafter owned by the Company, shall be subject to the lien of
the Mortgage and indentures supplemental thereto unless now or hereafter specifically pledged or
required to be pledged thereunder by the provisions of the Mortgage or any indenture supplemental
thereto.
TO HAVE AND TO HOLD, all and singular the property, rights, privileges and franchises hereby
conveyed, transferred or pledged or intended so to be, including after-acquired property, together
with all and singular the reversions, remainders, rents, revenues, income, issues and profits,
privileges and appurtenances, now or hereafter belonging or in any way appertaining thereto, unto
the Trustee and its successors in the trust hereby created, and its and their assigns forever;
19
IN TRUST NEVERTHELESS, for the equal and pro rata benefit and security of each and every
person or corporation who may be or become the holders of bonds secured by the Mortgage and
indentures supplemental thereto, without preference, priority or distinction (except as provided in
Section 1 of Article VIII of the Mortgage) as to lien or otherwise of any bond of any series over
or from any other bond, so that (except as aforesaid) each and every of the bonds issued or to be
issued, of whatsoever series, shall have the same right, lien, privilege under the Mortgage and
indentures supplemental thereto and shall be equally secured thereby and hereby, with the same
effect as if the bonds had all been made, issued and negotiated simultaneously on the date of the
Mortgage.
AND THIS SUPPLEMENTAL INDENTURE FURTHER WITNESSETH:
It is hereby covenanted that all bonds secured by the Mortgage and indentures supplemental
thereto with the coupons appertaining thereto, are issued to and accepted by each and every holder
thereof, and that the property aforesaid and all other property subject to the lien of the Mortgage
and indentures supplemental thereto is held by or hereby conveyed to the Trustee, under and subject
to the trusts, conditions and limitations set forth in the Mortgage and indentures supplemental
thereto and upon and subject to the further trusts, conditions and limitations hereinafter set
forth, as follows, to wit:
ARTICLE I.
AMENDMENTS OF MORTGAGE
Section 1. Article II of the Ninth Supplemental Indenture to the Mortgage, as heretofore
amended, is hereby further amended as follows:
By adding to paragraph (d) of Section 5 and to the first clause of Section 9, the following:
5.70% Series due 2037
ARTICLE II.
BONDS OF THE NEW SERIES
Section 1. The bonds of the New Series shall be designated as hereinabove specified for such
designation in the recital immediately preceding the form of bonds of the New Series, subject
however, to the provisions of Section 2 of Article I of the Mortgage, as amended, and are issuable
only as registered bonds without coupons, substantially in the form hereinbefore recited. Subject
to the provisions of the Mortgage, the bonds of the New Series shall be issuable without limitation
as to the aggregate principal amount thereof.
The bonds of the New Series shall bear interest from the date thereof and shall be dated as of
the interest payment date to which interest was paid next preceding the date of issue unless
20
(a) such date of issue is an interest payment date to which interest was paid, in which event
such bonds shall be dated as of such interest payment date, or (b) issued prior to the occurrence
of the first interest payment date on which interest is to be paid, in which event such bonds shall
be dated March 19, 2007. The bonds of the New Series shall mature on March 15, 2037.
The bonds of the New Series shall bear interest (computed on the basis of a 360-day year of
twelve 30-day months) at the rate provided in the form of bond hereinbefore recited, payable on
March 15 and September 15 in each year commencing on September 15, 2007, until the Companys
obligation with respect to the payment of principal thereof shall have been discharged. Both
principal and interest on bonds of the New Series shall be payable at the office or agency of the
Company in the City of Philadelphia, Pennsylvania, or, at the option of the holder, at the office
or agency of the Company in the Borough of Manhattan, The City of New York, and shall be payable in
such coin or currency of the United States of America as at the time of payment shall constitute
legal tender for the payment of public and private debts.
The bonds of the New Series shall be in any denomination authorized by the Company.
Any bond or bonds of the New Series shall be exchangeable for another bond or bonds of the New
Series in a like aggregate principal amount. Any such exchange may be made upon presentation at
the office of the Trustee in the City of Philadelphia, Pennsylvania, or, at the option of the
holder, at the office or agency of the Company in the Borough of Manhattan, The City of New York,
without any charge other than a sum sufficient to reimburse the Company for any stamp tax or other
governmental charge incident to the exchange.
Section 2. (a) Initially, the bonds of the New Series shall be issued pursuant to a book-entry
system administered by The Depository Trust Company (or its successor, referred to herein as the
Depository) as a global security with no physical distribution of bond certificates to be made
except as provided in this Section 2. Any provisions of the Mortgage or the bonds of the New
Series requiring physical delivery of bonds shall, with respect to any bonds of the New Series held
under the book-entry system, be deemed to be satisfied by a notation on the bond registration books
maintained by the Trustee that such bonds are subject to the book-entry system.
(b) So long as the book-entry system is being used, one or more bonds of the New Series in the
aggregate principal amount of the bonds of the New Series and registered in the name of the
Depositorys nominee (the Nominee) will be issued and required to be deposited with the
Depository and held in its custody. The book-entry system will be maintained by the Depository and
its participants and indirect participants and will evidence beneficial ownership of the bonds of
the New Series, with transfers of ownership effected on the records of the Depository, the
participants and the indirect participants pursuant to rules and procedures established by the
Depository, the participants and the indirect participants. The principal of and any premium on
each bond of the New Series shall be payable to the Nominee or any other person appearing on the
registration books as the registered holder of such bond or its registered assigns or legal
representative at the office of the office or agency of the Company in the City of Philadelphia,
Pennsylvania or the Borough of Manhattan, The City of New York. So long as the book-entry system
is in effect, the Depository will be recognized as the holder of the bonds of the New Series for
all purposes. Transfers of principal, interest and any premium payments or
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notices to participants and indirect participants will be the responsibility of the
Depository, and transfers of principal, interest and any premium payments or notices to beneficial
owners will be the responsibility of participants and indirect participants. No other party will
be responsible or liable for such transfers of payments or notices or for maintaining, supervising
or reviewing such records maintained by the Depository, the participants or the indirect
participants. While the Nominee or the Depository, as the case may be, is the registered owner of
the bonds of the New Series, notwithstanding any other provisions set forth herein, payments of
principal of, redemption premium, if any, and interest on the bonds of the New Series shall be made
to the Nominee or the Depository, as the case may be, by wire transfer in immediately available
funds to the account of such holder. Without notice to or consent of the beneficial owners, the
Trustee with the consent of the Company and the Depository may agree in writing to make payments of
principal, redemption price and interest in a manner different from that set forth herein. In such
event, the Trustee shall make payment with respect to the bonds of the New Series in such manner as
if set forth herein.
(c) The Company may at any time elect (i) to provide for the replacement of any Depository as
the depository for the bonds of the New Series with another qualified depository, or (ii) to
discontinue the maintenance of the bonds of the New Series under book-entry system. In such event,
the Trustee shall give 30 days prior notice of such election to the Depository (or such fewer
number of days acceptable to such Depository).
(d) Upon the discontinuance of the maintenance of the bonds of the New Series under a
book-entry system, the Company will cause the bonds to be issued directly to the beneficial owners
of the bonds of the New Series, or their designees, as further described below. In such event, the
Trustee shall make provisions to notify participants and beneficial owners of the bonds of the New
Series, by mailing an appropriate notice to the Depository, that bonds of the New Series will be
directly issued to beneficial owners of the bonds as of a date set forth in such notice (or such
fewer number of days acceptable to such Depository).
(e) In the event that bonds of the New Series are to be issued to beneficial owners of the
bonds, or their designees, the Company shall promptly have bonds of the New Series prepared in
certificated form registered in the names of the beneficial owners of such bonds shown on the
records of the participants provided to the Trustee, as of the date set forth in the notice above.
Bonds issued to beneficial owners, or their designees shall be substantially in the form set forth
in this Supplemental Indenture, but will not include the provision related to global securities.
(f) If the Depository is replaced as the depository for the bonds of the New Series with
another qualified depository, the Company will issue a replacement global security substantially in
the form set forth in this Supplemental Indenture.
(g) The Company and the Trustee shall have no liability for the failure of any Depository to
perform its obligations to any participant, any indirect participant or any beneficial owner of any
bonds of the New Series, and the Company and the Trustee shall not be liable for the failure of any
participant, indirect participant or other nominee of any beneficial owner or any bonds of the New
Series to perform any obligation that such participant, indirect participant or other nominee may
incur to any beneficial owner of the bonds of the New Series.
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(h) Notwithstanding any other provision of the Mortgage, on or prior to the date of issuance
of the bonds of the New Series the Trustee shall have executed and delivered to the initial
Depository a Letter of Representations governing various matters relating to the Depository and its
activities pertaining to the bonds of the New Series. The terms and provisions of such Letter of
Representations are incorporated herein by reference and, in the event there shall exist any
inconsistency between the substantive provisions of the said Letter of Representations and any
provisions of the Mortgage, then, for as long as the initial Depository shall serve as depository
with respect to the bonds of the New Series, the terms of the Letter of Representations shall
govern.
(i) The Company and the Trustee may rely conclusively upon (i) a certificate of the Depository
as to the identity of a participant in the book-entry system; (ii) a certificate of any participant
as to the identity of any indirect participant and (iii) a certificate of any participant or any
indirect participant as to the identity of, and the respective principal amount of bonds of the New
Series owned by, beneficial owners.
Section 3. So long as the bonds of the New Series are held by The Depository Trust Company,
such bonds of the New Series shall 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 4. So long as any of the bonds of the New Series remain outstanding, the Company shall
keep at its office or agency in the Borough of Manhattan, The City of New York, as well as at the
office of the Trustee in the City of Philadelphia, Pennsylvania, books for the registry and
transfer of outstanding bonds of the New Series, in accordance with the terms and provisions of the
bonds of the New Series and the provisions of Section 8 of Article I of said Mortgage.
Section 5. So long as any bonds of the New Series remain outstanding, the Company shall
maintain an office or agency in the City of Philadelphia, Pennsylvania, and an office or agency in
the Borough of Manhattan, The City of New York, for the payment upon proper demand of the principal
of, the interest on, or the redemption price of the outstanding bonds of the New Series, and will
from time to time give notice to the Trustee of the location of such office or agency. In case the
Company shall fail to maintain for such purpose an office or agency in the City of Philadelphia or
shall fail to give such notice of the location thereof, then notices, presentations and demands in
respect of the bonds of the New Series may be given or made to or upon the Trustee at its office in
the City of Philadelphia and the principal of, the
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interest on, and the redemption price of said bonds in such event be payable at said office of
the Trustee. All bonds of the New Series when paid shall forthwith be cancelled.
Section 6. The Company may fix a date, not more than fourteen calendar days prior to any
interest payment date, as a record date for determining the registered holder of each bond of the
New Series entitled to such interest payment, in which case only the registered holder of such bond
on such record date shall be entitled to receive such payment, notwithstanding any transfer of such
bond upon the registration books subsequent to such record date.
Section 7. The bonds of the New Series shall be issued under and subject to all of the terms
and provisions of the Mortgage, of the indentures supplemental thereto referred to in the recitals
hereof and of this Supplemental Indenture which may be applicable to such bonds or applicable to
all bonds issued under the Mortgage and indentures supplemental thereto.
ARTICLE III.
ISSUE AND AUTHENTICATION OF
BONDS OF THE NEW SERIES
In addition to any bonds of any series which may from time to time be executed by the Company
and authenticated and delivered by the Trustee upon compliance with the provisions of the Mortgage
and/or of any indenture supplemental thereto, bonds of the New Series of an aggregate principal
amount of $175,000,000 shall forthwith be executed by the Company and delivered to the Trustee, and
the Trustee shall thereupon, whether or not this Supplemental Indenture shall have been recorded,
authenticate and deliver said bonds to or upon the written order of the President, a Vice
President, or the Treasurer of the Company, under the terms and provisions of paragraph (e) of
Section 3 of Article II of the Mortgage, as amended.
ARTICLE IV.
REDEMPTION OF BONDS OF THE
NEW SERIES
Section 1. The bonds of the New Series shall be redeemable, at the option of the Company, as a
whole or in part, at any time 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 to be redeemed, plus accrued interest
to the redemption date, or (2) as determined by the Quotation Agent, the sum of the present values
of the remaining scheduled payments of principal and interest on the 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 (assuming a 360-day year consisting of twelve 30-day months)
at the Adjusted Treasury Rate plus ___ basis points, plus accrued interest to 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 this series or portions of the bonds of this series
called for redemption.
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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 this series
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 the New Series.
Comparable Treasury Price means, with respect to any redemption date:
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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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if the Trustee obtains fewer than three Reference Treasury Dealer Quotations, the
average of all Reference Treasury Dealer Quotations so received.
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Reference Treasury Dealer means (1) each of J.P. Morgan Securities Inc. and Greenwich
Capital Markets, Inc. and their respective successors, unless any of them ceases to be a primary
U.S. Government securities dealer in New York City (a 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 5:00 p.m., New York City
time, on the third business day preceding that redemption date.
Section 2. In case the Company shall desire to exercise such right to redeem and pay off all
or any part of such bonds of the New Series as hereinbefore provided it shall comply with all the
terms and provisions of Article III of the Mortgage, as amended, applicable thereto, and such
redemption shall be made under and subject to the terms and provisions of Article III 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 Section 1 of this Article. No publication of notice of any
redemption of any bonds of the New Series shall be required.
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ARTICLE V.
CERTAIN EVENTS OF DEFAULT; REMEDIES
Section 1. So long as any bonds of the New Series remain outstanding, in case one or more of
the following events shall happen, such events shall, in addition to the events of default
heretofore enumerated in paragraphs (a) throughout (d) of Section 2 of Article VIII of the
Mortgage, constitute an event of default under the Mortgage, as fully as if such events were
enumerated therein:
(e) default shall be made in the due and punctual payment of the principal (including
the full amount of any applicable optional redemption price) of any bond or bonds of the
5.70% Series due 2037 whether at the maturity of said bonds, or at a date fixed for
redemption of said bonds, or any of them, or by declaration as authorized by the Mortgage;
Section 2. So long as any bonds of the New Series remain outstanding, Section 10 of Article
VIII of the Mortgage, as heretofore amended, is hereby further amended by inserting in the first
paragraph of such Section 10, immediately after the words as herein provided, at the end of
clause (2) thereof, the following:
or (3) in case default shall be made in any payment of any interest on any bond or bonds
secured by this indenture or in the payment of the principal (including any applicable optional
redemption price) of any bond or bonds secured by this indenture, where such default is not of the
character referred to in clause (1) or (2) of this Section 10 but constitutes an event of default
within the meaning of Section 2 of this Article VIII.
ARTICLE VI.
CONCERNING THE TRUSTEE
The Trustee hereby accepts the trust herein declared and provided and agrees to perform the
same upon the terms and conditions set forth in the Mortgage, as amended and supplemented, and upon
the following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for or in respect of the
validity of this Supplemental Indenture or the due execution hereof by the Company or for or in
respect of the recitals contained herein, all of which recitals are made by the Company solely.
ARTICLE VII.
MISCELLANEOUS
Section 1. Unless otherwise clearly required by the context, the term Trustee, or any other
equivalent term used in this Supplemental Indenture, shall be held and construed to mean the
trustee under the Mortgage for the time being whether the original or a successor trustee.
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Section 2. The headings of the Articles of this Supplemental Indenture are inserted for
convenience of reference only and are not to be taken to be any part of this Supplemental Indenture
or to control or affect the meaning of the same.
Section 3. Nothing expressed or mentioned in or to be implied from this Supplemental
Indenture or in or from the bonds of the New Series is intended, or shall be construed, to give any
person or corporation, other than the parties hereto and their respective successors, and the
holders of bonds secured by the Mortgage and the indentures supplemental thereto, any legal or
equitable right, remedy or claim under or in respect of such bonds or the Mortgage or any indenture
supplemental thereto, or any covenant, condition or provision therein or in this Supplemental
Indenture contained. All the covenants, conditions and provisions thereof and hereof are for the
sole and exclusive benefit of the parties hereto and their successors and of the holders of bonds
secured by the Mortgage and indentures supplemental thereto.
Section 4. This Supplemental Indenture may be executed in several counterparts, each of which
shall be an original and all collectively but one instrument.
Section 5. This Supplemental Indenture is dated and shall be effective as of March 1, 2007,
but was actually executed and delivered on March 12, 2007.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the party of the first part hereto has caused its corporate seal to be
hereunto affixed and the President or a Vice President of the party of the first part and the
President or a Vice President of the party of the second part, under and by the authority vested in
them, have hereto affixed their signatures and their Secretaries or Assistant Secretaries have duly
attested the execution hereof the 12th day of March, 2007.
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PECO ENERGY COMPANY
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By
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Michael R. Metzner
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Vice President and Treasurer
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[SEAL]
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Attest
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Bruce G. Wilson
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Assistant Secretary
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By
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George Rayzis
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Vice President
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Attest
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Ralph E. Jones
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Assistant Secretary
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STATE OF ILLINOIS
ss.
COUNTY OF COOK
BE IT REMEMBERED, that on the ___th day of March, 2007, before me, a Notary Public in and for
said County and State, residing in Chicago, personally came Bruce G. Wilson, who being duly sworn
according to law deposes and says that he was personally present and did see the common or
corporate seal of the above named PECO Energy Company affixed to the foregoing Supplemental
Indenture, that the seal so affixed is the common or corporate seal of the said PECO Energy
Company, and was so affixed by the authority of the said corporation as the act and deed thereof;
that the above named Michael R. Metzner is a Vice President of the said corporation, and did sign
the said Supplemental Indenture as such in the presence of this deponent that this deponent is
Assistant Secretary of the said corporation; and the name of the deponent, above signed in
attestation of the due execution of the said Supplemental Indenture, is in this deponents own
proper handwriting.
Sworn to and subscribed before me the day and year aforesaid.
Notarial Seal
Notary Public,
City of Chicago, Cook County
My Commission Expires
[SEAL]
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COMMONWEALTH OF PENNSYLVANIA
ss.
COUNTY OF PHILADELPHIA
BE IT REMEMBERED, that on the ___th day of March, 2007, before me, the subscriber, a Notary
Public in and for said County and Commonwealth, residing in Philadelphia, personally came Ralph E.
Jones, who being duly sworn according to law deposes and says that he was personally present and
did see that the above named George Rayzis, a Vice President of the said corporation, did
sign the said Supplemental Indenture as such in the presence of this deponent; that this deponent
is an Assistant Secretary of the said corporation; that the name of this deponent, above signed in
attestation of the due execution of the said Supplemental Indenture, is in this deponents own
proper handwriting.
Sworn to and subscribed before me the day and year aforesaid.
I hereby certify that I am not an officer of director of said U.S. Bank National Association.
Notarial Seal
, Notary Public
City of Philadelphia, Philadelphia County
My Commission Expires
[SEAL]
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CERTIFICATE OF RESIDENCE
U.S. Bank National Association, Mortgagee and Trustee within named, hereby certifies that its
precise residence in the City of Philadelphia is 50 South 16th Street, Suite 2000, Philadelphia,
Pennsylvania 19102.
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U.S. BANK NATIONAL ASSOCIATION,
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Trustee
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By
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George Rayzis
Vice President
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SCHEDULE A
COMMONWEALTH OF PENNSYLVANIA
PE 10,596
Leasehold Interest in and to:
A tract generally locating northwesterly of the Schuylkill River, northeasterly of University
Avenue, and southeasterly of Civic Center Boulevard at Philadelphia, Philadelphia County,
Pennsylvania being more particularly described as follows:
That portion of property owned in fee simple by CSX Transportation, Inc. lying inside the wye
known locally as the University Avenue Wye, bounded on all sides by lines that are concentric to
and offset a distance of 50 feet, as measured radially from the centerline of the tracks, to the
inside of the tracks forming said wye, said property being located at Railroad Milepost QHE 0 and
QHW 0 and containing 2.55 acres, more or less, as contained within the boundaries of the following:
ALL THAT CERTAIN lot or piece of ground.
SITUATE in the 27
th
Ward of the City of Philadelphia, described as follows to wit:
BEGINNING at an interior point, which interior point is measured North 6 degrees 5 minutes 24
seconds East the distance of 53.185 feet from a point, which is measured North 74 degrees 56
minutes 01 second East, 32.265 feet from a point on the Northeasterly side of the right-of-way line
of the Southbound ramp of the Schuylkill Expressway, said last mentioned point being located
Southeastwardly along the right-of-way of the Schuylkill Expressway, on a line curving to the left
with a radius of 209.494 feet, an arc distance of 46.932 feet from a point; said last mentioned
point being located North 68 degrees 52 minutes 50 seconds East, 3.494 feet from a point on the
Northeasterly side of University Avenue (as established upon the confirmed City Plan) said last
mentioned point being located South 21 degrees 7 minutes 10 seconds East, 373.79 feet from the
intersection of the Northeasterly line of University Avenue produced with the Southeasterly line
Southeasterly side of Civic Center Boulevard (80 feet wide); thence extending from said point of
beginning Northeastwardly the distance of 85.927 feet to a point on the Easterly right-of-way for
the West Chester and Philadelphia Rail Road; thence extending Northeastwardly along the said
right-of-way on the arc of a circle curving to the left having a distance of 1279 feet to a point;
thence extending along the Easterly right-of-way of the Delaware Extension of the Pennsylvania
Railroad the following two courses and distances: (1) Southwardly on the arc of a circle curving to
the right having a radius of 675 feet the arc distance of 530.083 feet to a point of compound
curve; (2) Southwardly on the arc of a circle curving to the right having a radius of 725 feet the
arc distance of 331.392 feet more or less to a point; thence extending North 51 degrees 39 minutes
44 seconds West the distance of 173.448 feet to a point of curve; thence extending Westwardly on
the arc of a circle curving to the left having a
A-1
radius of 1170.405 feet the arc distance of 241.737 feet to a point of compound curve; thence
extending Westwardly on the arc of a circle curving to the left having a radius of 1368 feet the
arc distance of 735.378 feet to a point of tangent; thence extending South 88 degrees 38 minutes 01
second West the distance of 283.500 feet to a point being the first mentioned point and place of
beginning.
BEING the same premises described in Memorandum of Lease from CSX Transportation, Inc. to PECO
Energy Company dated July 14, 2006 and recorded as Document No. 51504971 in the Philadelphia County
Department of Records.
A-2
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Prepared by:
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Ronald Zack
Assistant General Counsel
PECO Energy Company
2301 Market Street
Philadelphia, PA 19103
(215) 841-4419
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Return to
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Ronald Zack
Assistant General Counsel
PECO Energy Company
2301 Market Street
Philadelphia, PA 19103
(215) 841-4419
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Counterpart ____ of 30
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PECO ENERGY COMPANY
TO
U.S. BANK NATIONAL ASSOCIATION, TRUSTEE
ONE HUNDRED AND THIRD SUPPLEMENTAL
INDENTURE DATED AS OF
MARCH 1, 2007
TO
FIRST AND REFUNDING MORTGAGE
OF
THE COUNTIES GAS AND ELECTRIC
COMPANY
TO
FIDELITY TRUST COMPANY, TRUSTEE
DATED MAY 1, 1923
5.70% SERIES DUE 2037